Agency Criminal Referrals in the Federal System: An Empirical Study of Prosecutorial Discretion

Organizational Reputation and the Securities and Exchange Commission's Failed Regulatory Revolution

“…Accordingly, when the SEC litigated, it won (Fedders 1998; Karmel 1982). Among federal agencies that refer criminal cases to U.S. attorneys (who either accept or decline the case), the SEC had one of the lowest declination rates (Rabin 1972). Case law even acknowledges the SEC's sterling legal‐procedural reputation through the decision Peck v. Greyhound (1951), which courts sometimes cite as precedent for judicial deference to the commission's interpretation of securities law.…”

Mental health mitigating evidence and judicial outcomes for federal capital defendants

“…Prosecutorial discretion has been associated with arbitrariness in sentencing (Powell and Cimino, 1995;Rabin, 1972). The U.S. Attorney General's committee-based decision whether to seek or not seek a death-penalty may reflect a more reliable measure of the prosecutorial suitability to pursue a death sentence compared to a unilateral decision by a prosecuting attorney.…”

Sound and Fury: Pretextual Prosecution and Department of Justice Antiterrorism Efforts

“…The U.S. federal system largely employs a bifurcated approach in which agencies such as the FBI investigate criminal behavior and then refer those investigations to prosecutors in the Department of Justice or United States Attorneys’ Offices who decide whether to prosecute those referrals. Federal prosecutors are expected to serve a gatekeeping function, ensuring that nonmeritorious referrals are winnowed down from the federal criminal justice system (Eisenstein 1978; Rabin 1972; Richman 2003). If an assistant U.S. attorney received an FBI referral that seemed a weak case, or one fraught with constitutional problems, or one resulting from a malign or overzealous investigation, the prosecutor could decline to prosecute the case.…”