60 Nw. U. L. Rev. 174 (1965-1966)
Prosecutorial Discretion-A Comment

handle is hein.journals/illlr60 and id is 188 raw text is: THE PROSECUTORIAL DISCRETION-A COMMENT
by John Kaplan*
N two recent cases arising out of the current civil rights struggle, atten-
tion has been focused upon a relatively neglected but extremely im-
portant area of criminal administration-the prosecutorial discretion. In
one of these cases, a Southern district judge, backed by a Mississippi
grand jury, attempted to force the United States Attorney and the At-
torney General to authorize prosecution of two Negro civil rights work-
ers for perjury arising out of a hearing into wholesale deprivations of
the right to vote inflicted upon Negroes in Mississippi.1 In the other case,
the shoe was on the other foot, and several Mississippi civil rights work-
ers brought suit in the District of Columbia to force the Attorney Gen-
eral to prosecute white citizens of Mississippi for depriving Negroes of
their civil rights.2 In both cases the courts ultimately turned down the
challenge to the prosecutorial discretion of the United States Depart-
ment of Justice. And though both courts remarked on the wide range
of discretion which must be given the executive in this area,3 neither
was able to cite to any body of literature describing the variables which
should, or even do, enter into the exercise of this discretion.
The reason for this is simple. Despite the enormous importance of
the decision whether or not to prosecute, there has been an amazingly
small amount of material published in this area. While others of the ma-
jor decision processes in the criminal system-the decision of the police
* Professor of Law, Northwestern University School of Law.
1 United States v. Cox, 342 F.2d 167 (5th Cir. 1965).
Moses v. Kennedy, 219 F. Supp. 762 (D.D.C. 1963).
United States v. Cox, supra note 1; Moses v. Kennedy, supra note 2, at 765. Many
other courts have agreed in this assertion, e.g., Kennedy v. Rabinowitz, 318 F.2d 181,
183 (D.C. Cir. 1963), aff'd on other grounds, 376 U.S. 605 (1964); Brown v. United
States, 299 F.2d 438, 440 (D.C. Cir. 1962); Clemons v. United States, 137 F.2d 302, 305
(4th Cir. 1943); Cooper v. O'Connor, 99 F.2d 135, 138 (D.C. Cir. 1938), cert. denied, 305
U.S. 642 (1939); Felder v. United States, 9 F.2d 872, 874 (2d Cir. 1925), cert. denied, 270
U.S. 648 (1926); United States v. Verra, 203 F. Supp. 87, 91 (S.D.N.Y. 1962); Pugach v.
Klein, 193 F. Supp. 630, 634-35 (S.D.N.Y. 1961); United States v. New York Great
Ad. 8= Pac. Tea Co., 54 F. Supp. 257, 258 (N.D. Tex. 1944); Ex parte Altman, 34 F. Supp.
106, 108 (S.D. Cal. 1940).

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