Student Review:

Mayer�s article suggests that written prosecutorial charging guidelines that are open to the public would provide a beneficial change for both prosecutors and the general public.  Currently, district attorneys have a great deal of discretion to choose which crimes to charge a defendant with.  Mayer suggests that written guidelines would not only help manage this discretion, but provide the public better information to use in voting for their local district attorney.
      Mayer used a hypothetical case to survey Wisconsin's district attorneys.  She found that both the charging decisions and the approaches to the situation by the prosecutors varied greatly.  The advantages of broad prosecutorial discretion include flexibility of the prosecutor to the specific facts of the case, the ability of the application of the law to reflect community priorities, and the ability of prosecutors to determine where resources should be best spent.  However, the disadvantages of such a system involve prosecutorial discretion based on racial, ethnic or gender biases and a lack of public involvement in the criminal justice system.  Mayer states that when prosecutorial decisions are made behind closed doors, the public cannot intelligently vote for those attorneys who would best carry out their policy choices.
      Charging guidelines are one way to limit prosecutorial discretion without destroying it.  However, Mayer notes that most Wisconsin district attorneys that were surveyed were not in favor of adopting written guidelines.  One of the main reasons to adopt guidelines is to promote consistency in applying the law.  Mayer explains that guidelines also promote efficient use of taxes by establishing priorities for resources.  Guidelines also promote a greater understanding of the operations of  district attorneys and includes law enforcement officials and legislators in the dialogue.  Finally, charging guidelines serve to inform the public on the policies developed by their district attorney.  This knowledge allows the public to hold the district attorney accountable for his decisions in the polls.
       Mayer also presents suggestions for creating prosecutorial guidelines that would avoid the fears of those opposed to guidelines.  She suggests that the legislature should adopt model guidelines written by an advisory committee and then allow local district attorneys to make their own adaptations.  The guidelines should be specific enough to apply to factual situations and include the evidentiary standard for the charge, non-evidentiary reasons for not prosecuting, and the degree of offense that should be charged.  At the same time, the guidelines should be flexible and include reasons to deviate from the general standard.  Additionally, if a reason for deviating from the rule develops, the attorney should record this reason for future reference.  Mayer suggests that the charging decisions should be reviewed either by an internal appellate system or by the general public during elections.  In order for the general public to hold district attorneys responsible, the guidelines must be open to public scrutiny and receive media attention.  Mayer argues that Wisconsin's open records law would mandate that such prosecutorial guidelines be open to the public.  She argues that charging guidelines are public records that do not fall into any exceptions from the presumption of open access.  Secondly, the balancing test shows that the public interest in being informed outweighs the government's interest in nondisclosure.  She concludes by stating that prosecutorial guidelines subject to Wisconsin's open records law would provide for an informed public at election time.  Mayer feels that this step is necessary for a truly representative government.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999