Prosecutorial Discretion and Ethical Duties in the Enforcement of Federal Criminal Law

Prosecutors wield enormous power over life, liberty and reputation and are subject to ethical standards higher than those that apply to other attorneys. As former U.S. Supreme Court Justice Sutherland recognized in the context of federal prosecutors, "[t]he United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." A U.S. Attorney may "strike hard blows" but not "foul ones." This course examines the distinct roles and responsibilities of U.S. Attorneys in the enforcement of federal criminal laws. We will review the ways in which a federal prosecutor exercises discretion in deciding whether or not to charge, what crimes to charge, and what punishments to seek. We will examine charging both individuals and corporate entities in the context of the priorities and policies of different administrations as well as the prosecutor's individual ethical obligations. This will be done on both a practical and conceptual level. Introductory sessions will focus on the historical evolution of the office, beginning with the Judiciary Act of 1789, and examine the office's complex (and unique) role within the system of separation of powers (including the appointment of Independent Counsel, Special Counsel and the judicial appointment of United States Attorneys). It will also explore related theoretical questions involving the prosecutorial role as well as challenges to the constitutionality of the judicial role in selecting US Attorneys. The bulk of the course will involve class sessions centered on different federal cases that involved difficult questions of prosecutorial decision-making. We will discuss the tools prosecutors use in exercising their discretion, including non-prosecution agreements, deferred prosecution agreements and cooperation agreements. The course will also explore the relationship between the U.S. Attorney and "Main Justice" and the extent to which the U.S. Attorney has independent decision-making authority. It will delve into the conflicts that may arise, and it will examine the appropriate framework for resolution of those conflicts. All students will write a paper for the class. Students may optionally elect to write an independent research paper for R credit. Students should submit at least 15 pages in the non-R (01) section. Students receiving R credit must abide by the Law School's research paper requirements -- which have the effect, because this is a three-credit course, of imposing a 26-page minimum. After the term begins, students accepted into the course can email registrar@law.stanford.edu to transfer from section (01) into section (02), which meets the R requirement. Please observe the Registrar's deadline (final study list deadline) for switching into the R section. Elements used in grading: Attendance, class participation, research paper.