Steve’s Fresh Perspective

Why Discretion Doesn’t Always Work


In WHY DISCRETION WORKS, a Legal Times article which trumpets the current system of prosecutorial discretion, federal prosecutor Howard Sklamberg defends the breadth of white collar criminal laws and discusses various factors that prosecutors consider when deciding whether to decline or to seek charges.  Mr. Sklamberg’s article, however, did not consider that the impact of an investigation takes its toll on a target long before the prosecutor makes a decision whether to seek an indictment.  Regardless of whether a prosecutor eventually declines the case, the investigation itself can effectively ruin an individual’s personal life and professional career.


Because of the breadth of white collar criminal laws, law enforcement agents can initiate investigations with very little evidence upon which to rely.   Defending the breadth of these laws, Mr. Sklamberg writes that “prosecutors do not like to be humiliated,” and suggests that a prosecutor will therefore decline a case if he or she is likely to lose or to appear overzealous.  Agents do not have the same fear or the same deterrent.  In fact, an agent’s career is largely driven by numbers.  Numbers of targets; numbers of investigations; numbers of search warrants; numbers of indictments.   Those are the same numbers, or “stats,” that determine how limited federal funds will be allocated among the various federal law enforcement agencies.  More stats equals more funding.  Therefore, while any agent would like to have a number of convictions, an agent benefits (and his agency benefits) simply by getting his case to court via indictment.  If things go awry after that, the agent can blame the prosecutor.  Or the judge.  Or the jury.  So an agent is not likely to decline to investigate or to cut short an investigation after resources have been expended.  It is often suggested that anyone could be charged with a criminal offense if scrutinized closely enough.  The current stat-driven system is structured to favor increased scrutiny to find an offense, as opposed to termination of an investigation if the initial allegations prove unfounded.

A prosecutor, over years of government service, develops personal relationships with the agents that work with her.  If an agent, who is also a friend, has invested significant time and money in a particular investigation, the prosecutor’s assessment of a “close call” situation might be swayed.  All of these concerns are heightened in the case of a high-profile target.  Some public figures are justifiably subject to a higher standard of ethical conduct, such as government employees.  However, it might be difficult for an agent or a prosecutor to resist a viable federal charge against a celebrity that would be an easy declination if the target were an average citizen.  Even with the best of intentions, a prosecutor may be seduced at the notion of a publicity-generating case against a high-profile target. 

By its very nature, prosecutorial discretion depends on decisions made by individual prosecutors.  And there are marked differences in individual prosecutors.  A busy federal prosecutor in a major city may be less inclined to take a marginal case than a federal prosecutor in a slower jurisdiction.  A new federal prosecutor trying to make a name for himself might be more inclined to investigate a high-profile target aggressively than a seasoned veteran who has already seen his share of big cases.  And the earlier exercise of “agent discretion” to initiate an investigation is subject to the same influences. 



Let’s assume that a target engaged in the actions alleged by an agent, but it is not clear if the actions were based on criminal intent or simply constituted a business decision.  For example, a business owner is trying to sell his business and a would-be buyer asks to see his previous tax filings in order to gauge the past success of the business.  In response, the business owner tells the would-be buyer not to be concerned with the past tax filings and to focus instead on the current business activities.  Now let’s suppose that the would-be buyer is an undercover IRS agent who is investigating the business owner for tax fraud.  With that one statement “don’t worry about the past filings,” an agent might very well consider that the owner is trying to hide something in those filings, while the owner is simply trying to paint his business in the best possible light so that he can close the deal.  

Mr. Sklamberg writes that prosecutors consider motive when deciding on a course of action.  All too often though, agents and prosecutors lack the real-world experience of running a business or even working in the private sector (beyond a few years at a large law firm where a junior associate rarely gets the opportunity to see the big picture).  Also, after a career of prosecuting and investigating criminal behavior, federal government employees can become predisposed to assume criminal motivation.  


Mr. Sklamberg is right on several counts.  White collar laws do have to be drawn broadly in order to permit federal prosecutors to combat the increasingly creative, technologically complex efforts of enterprising criminals.  Most prosecutors, do, in fact, make rational decisions based upon the best possible expenditure of resources, the assessment of the jury appeal of a particular case, and the desire to maintain a good reputation with the bench and the bar.  However, prosecutors and investigators need to recognize that the eventual good exercise of discretion does not undo the damage that can accrue from a lengthy investigation leading to that decision.  Agents can and should be counseled, in all investigations, to handle themselves in such a way as to minimize the “presumption of guilt” that often accompanies routine matters such as the service of a subpoena to or the interview of a potential target’s business associate or friend.  Prosecutors should be aware that they may view a case against a high-profile target differently than a case against “Joe the Plumber” and should consider, in making charging decisions, whether the identity of the target is a valid consideration or not.   Also, prosecutors should be prepared to present a declination letter, with that prosecutor’s signature, to targets when a decision not to prosecute has been made, giving some vindication to the innocent target and holding the prosecutor accountable for the investigation.  Defense attorneys should know the prosecutors with whom they are dealing, so that they are better situated to make pre-indictment arguments that the prosecutor is more likely to find persuasive.  When such practices are set in place, that would be the first clue that discretion might be working.




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