Prosecutorial Discretion and Sentencing

Abstract Prosecutors exercise great power over sentencing decisions. That power comes from their authority to select criminal charges and to plea bargain. The reasons that are usually offered in support of those powers—the separation of powers, the negotiation between parties, and insufficient resources—are not as strong as they might seem. Affording prosecutors so much power over sentencing comes at the cost of neutrality and transparency. Any efforts to reform sentencing must account for the fact that prosecutors may be able to circumvent those reforms using their charging and plea-bargaining powers.