The Decision to Charge

Fundamentals of Procedural Law by Adam J. McKee

Making the decision to charge a person with a crime is a significant responsibility entrusted to prosecutors. They evaluate the available evidence, the severity of the alleged crime, the suspect’s past criminal history, and the likelihood of obtaining a conviction. Prosecutors must also consider the interests of justice, which can sometimes mean opting not to pursue charges even when a conviction is likely.

Prosecutorial Discretion

A key case illustrating the power and discretion of prosecutors is United States v. Armstrong (1996). Armstrong and others were charged with drug crimes and sought to dismiss these charges, claiming selective prosecution because they were black. The Supreme Court ruled in favor of the government, stating that defendants must demonstrate clear evidence of discriminatory effect and intent to claim selective prosecution.

This case illustrates the extent of prosecutorial discretion in deciding to charge. Even though it was found that the defendants were selectively prosecuted, the Court held that without clear proof of discriminatory intent, a claim of selective prosecution could not be sustained.

Prosecutors have wide latitude but must exercise their power impartially without discriminating on the basis of race, religion, or other protected characteristics. This ensures that the criminal justice system remains just and equitable.

Another noteworthy case is Wayte v. United States (1985), in which the Supreme Court upheld prosecutorial discretion in the context of charging decisions related to draft registration laws. Wayte argued that the passive enforcement system, which mainly prosecuted those who self-reported noncompliance, was discriminatory. However, the Court concluded that it did not violate the Fifth Amendment’s equal protection component, further confirming the broad scope of prosecutorial discretion in charging decisions.

Limits on Prosecutorial Discretion

However, there are limits to this discretion, as was demonstrated in the case of United States v. Batchelder (1978). Here, the Supreme Court held that a prosecutor’s decision to charge under one of two overlapping statutes, which carried different penalties, did not violate the defendant’s due process rights.


The decision to charge is a significant step in the criminal justice process, and it is largely within the prosecutor’s discretion. Key cases like United States v. Armstrong, Wayte v. United States, and United States v. Batchelder have affirmed the broad scope of this discretion while also acknowledging its limits. While prosecutors have wide latitude in deciding who to charge, what charges to bring, and how to pursue them, this power must be exercised responsibly, without discrimination, and in the interest of justice.


United States v. Armstrong, 517 U.S. 456 (1996).

Wayte v. United States, 470 U.S. 598 (1985).

United States v. Batchelder, 442 U.S. 114 (1978).


Modification History

File Created:  08/08/2018

Last Modified:  07/23/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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