University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 135 JULY 1987 No. 6 PROSECUTORIAL INTENT IN CONSTITUTIONAL CRIMINAL PROCEDURE STEVEN ALAN REISS" Few officials can so affect the lives of others as can prosecutors. Yet few operate in a vacuum so devoid of externally enforceable con- straints.1 Indeed, contemporary efforts to constrain the discretion of ac- tors in the criminal justice system have not only bypassed the prosecu- tor,2 they have tended to expand her power by squeezing the system's seemingly insoluble bubble of discretion her way.' The courts are the most important, and in many instances the t Professor of Law, New York University. B.A. 1973, Vassar College; J.D. 1976, Stanford University. I would like to express my deep appreciation for the extraordinarily generous contributions of my colleagues and friends, Anthony G. Amsterdam, William E. Nelson, and John E. Sexton. I am also appreciative of the support of the Fibmen D'Agostino Greenberg and Max E. Greenberg Faculty Re- search Fund at New York University Law School. 1 See generally K. DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 188-214 (1969) (discussing the lack of externally enforceable constraints). 2 Vorenberg, Decent Restraint of ProsecutorialPower, 94 HARV. L. REV. 1521, 1521-22 (1981) (noting recent trends limiting the discretion of the police, magistrates, sentencing judges, parole boards, and correctional officials, but not prosecutors). 3 For example, the Comprehensive Crime Control Act of 1984, 18 U.S.C. § 3553 (Supp. 111 1985), 28 U.S.C. §§ 991-98 (Supp. II 1985), requires the United States Sentencing Commission to promulgate guidelines to confine the sentencing discretion of judges. The likely result of this current federal effort will be to attach increased impor- tance to the prosecutor's charging decision. (1365) 1366 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 135:1365 only, check on prosecutorial misbehavior; and the Constitution is a ma- jor source of judicial authority over prosecutorial practices. Surpris- ingly, however, there has been virtually no systematic examination of the manner in which courts enforce the constitutional proscriptions that circumscribe the prosecutor's considerable power. Instead, courts and commentators have tended to view various prosecutorial abuses as dis- crete problems to be analyzed and resolved on an atomistic basis. This Article attempts a systematic examination of the way consti- tutional principles are utilized to constrain prosecutorial activities. It does so by exploring an array of prosecutorial practices that are subject to constitutional regulation: (1) selective prosecution; (2) prosecutorial vindictiveness in charging; (3) prosecutorial abuse and misuse of the grand jury; (4) the prosecutor's duty to provide the defense with excul- patory evidence; (5) the prosecutor's discriminatory use of peremptory challenges in selecting a petit jury; and (6) the double jeopardy bar to retrying a defendant whose first trial was aborted because of an error by the prosecutor. These areas are particularly relevant for several reasons. First, un- like issues involving confessions or searches and seizures in which the governmental actions at issue are apt to be those of the police or other investigatory law enforcement personnel, claims made in the enumer- ated areas will almost always involve allegations of misbehavior on the part of the prosecutor. Second, the six areas cover a fairly broad spec- trum of prosecutorial activity, including pre-indictment behavior, be- havior in the grand jury, post-indictment/pre-trial behavior, and prosecutorial behavior at various stages of the trial. Finally, the chosen areas implicate a variety of substantive constitutional guarantees-due process, 4 equal protection,5 and double jeopardy'-thereby allowing an examination not tied to any particular constitutional provision. Where a criminal defendant challenges a prosecutorial action as unconstitutional, the courts tend to factor the prosecutor's intent into the calculus for deciding the constitutional claim. This tendency is not the result of any overarching theory concerning the role of intent in the constitutional regulation of prosecutorial conduct-at least not one that has been articulated by the courts. Instead, it is the description of a 4 "No person shall ... be deprived of life, liberty, or property, without due pro- cess of law." U.S. CONST. amend. V. I "No state shall ... deny to any person within its jurisdiction the equal protec- tion of the laws." U.S. CONST. amend. XIV. Although the fifth amendment, unlike the fourteenth, does not contain an equal protection clause, it does contain an equal protec- tion component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). " "No person shall. be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. 19871 PROSECUTORIAL INTENT thread that weaves through a group of constitutional claims that the courts have treated as discrete, unrelated problems. Yet even within these individual problem areas, the courts have not meaningfully ex- plored whether and why the prosecutor's intent ought or ought not to be part of the analysis of the defendant's constitutional claim. Reliance upon prosecutorial intent has been not only unsystematic, but largely unreflective. These qualities do not, of course, render such reliance wrong. Courts often reach the right destination without taking law reviewish detours to get there. A preference for intent-based analysis might prove justified on several grounds. These include: (1) the fairness, consistency and predictability of the results reached under it; (2) systemic consider- ations relating to the administration of criminal justice; and (3) the fact that doctrinally sound, administrable schemes that do not turn on the prosecutor's intent-for example, those which utilize bright line rules or which focus principally on the harm caused by the challenged prosecutorial behavior-are simply not available. In Section I, the ex- amination of the six areas yields two conclusions: first, that the perva- sive determinant of the constitutionality of a prosecutorial action is not the objective circumstances surrounding it but the prosecutor's intent in taking it; and second, that this focus on intent divests the system of 7 consistency and predictability. Section II then explores the systemic costs of this preference for intent-based analysis and finds that these costs are substantial. Section III examines whether, despite these costs, the preference can be justi- fied because it serves important systemic values relating to the adminis- tration of criminal justice, and concludes that it cannot. Thus, the use of intent-based analysis in any particular area must be justified rather than assumed. Section IV returns to the six areas explored in Section I and ex- amines, in a preliminary way, the residual justifications for employing 7 The concept of "prosecutorial intent" is used here in its broadest and least tech- nical sense. It encompasses the thoughts, motivations and purposes behind an individual prosecutor's actions in a particular case, as well as any office policies and strategies that affect the prosecutor's handling of a criminal matter. Furthermore, this Article makes no meaningful distinctions between the concepts of "motive" and "purpose," and those terms are used interchangeably. Indeed, some commentators have questioned whether, for purposes of constitutional analysis, there are any meaningful distinctions between the two concepts. See, e.g., Clark, Legislative Motivation and FundamentalRights in ConstitutionalLaw, 15 SAN DiEGo L. REv. 953, 955-63 (1978) (analyzing "motive" and "purpose" and concluding that they are functionally indistinguishable); Ely, Legis- lative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205, 1217-21 (1970) (arguing that any distinction between "motive" and "purpose" grounded upon political expediency, the immediacy of legislative aims, or as- certainability will be of negligible assistance to the court). 1368 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 135:1365 intent-based analysis to govern constitutional challenges to prosecutorial behavior in each of those six areas. Where intent-based analysis ap- pears to be warranted, Section IV examines the feasibility of using ob- jectifying presumptions to require the prosecutor to justify the chal- lenged action. I. THE PERVASIVE PREFERENCE FOR INTENT-BASED ANALYSIS 0 body swayed to music, 0 brighteningglance How can we know the dancer from the dance? -W.B. Yeats, Among School Children8 By the dancer's thoughts, so it seems, at least where the dancer is a prosecutor and the dance is a prosecution. In this Section, the review and analysis of doctrine demonstrates that consistency and predictability-the first justification-are not the hallmarks of those areas that place primacy on prosecutorial intent. In- deed, to the contrary, those areas seem prone to yield ad hoc and con- fused results; and ad hoc and confused results can hardly be said to be fair. Moreover, in at least one of those areas, the double jeopardy bar after a mistrial due to prosecutorial misconduct, the emphasis on prosecutorial intent itself seems unfair. A. Selective Prosecution 1. The Nature and Source of the Proscription Ordinarily, "so long as the prosecutor has probable cause to be- lieve that the accused committed an offense defined by statute, the deci- sion whether or not to prosecute, and what