Robert Jackson, then Attorney General and later a Supreme Court Justice, said that the prosecutor has "more control over life, liberty, and reputation than any other person in America." Almost all of that control comes from discretion: whom to investigate, what to charge, what plea to offer, what sentence to seek, and whether to charge at all. The only ethical floor is probable cause, and that is a low bar. So who decides when a police officer who killed someone in her own home should face a jury, or whether a wealthy man accused of abusing underage girls gets a deal no ordinary defendant would see?
In this TalksOnLaw interview, recorded in early 2021, Joel Cohen speaks with two former prosecutors turned legal-ethics scholars: Bruce Green, the Louis Stein Chair at Fordham Law School and Director of its Stein Center for Law and Ethics, and Rebecca Roiphe, the Joseph Solomon Distinguished Professor of Law at New York Law School. They examine two of the most controversial exercises of prosecutorial discretion of the era, the Breonna Taylor grand jury and the Jeffrey Epstein non-prosecution agreement, and ask what standards govern a prosecutor's choices and what happens when those choices go wrong.
The Power and Its Floor
Roiphe lays out where discretion enters a prosecution, and Green explains that the rules of professional conduct, modeled on ABA Model Rule 3.8, require only that a prosecutor refrain from charges unsupported by probable cause, a standard he describes as a "fair likelihood," below a preponderance of the evidence. Most prosecutors want far more before they charge, but nothing requires it. Prosecutors also have no duty to bring every provable case, which is where policy, politics, and conscience come in.
Breonna Taylor and the Grand Jury
Kentucky Attorney General Daniel Cameron, acting as special prosecutor, presented the case to a grand jury that charged only one officer, and only with wanton endangerment for shots fired into a neighboring apartment. Roiphe credits Cameron for moving carefully and waiting for ballistics, but faults him for presenting the grand jury as an independent check when he had steered it by presenting no homicide charges. The professors explain why there is no such thing as a neutral grand jury presentation, why local prosecutors who depend on police as witnesses and investigators face an institutional conflict in police cases, and what the Freddie Gray prosecutions in Baltimore, which ended in acquittals and dropped charges, teach about charging a case that a prosecutor cannot win. They also debate grand jury transparency, from the release of the Ferguson minutes to the general rule that prosecutors cannot explain a declination without besmirching someone who was never charged.
Protests, Priorities, and Politics
The conversation turns to the 2020 protest prosecutions, with the Justice Department under Attorney General Barr bringing unusual federal charges while some elected district attorneys declined whole categories of cases. The professors discuss overcharging, proportionality, the breadth of federal criminal law, and the reality that prosecutors now run for office on their philosophies of discretion. "Elections have consequences," as one of them puts it, and in most cases the ballot box is the only check.
Epstein and the Victims Left Out
Roiphe recounts the 2007–08 non-prosecution agreement in which federal prosecutors in Florida set aside a drafted indictment of Jeffrey Epstein in favor of a lenient state plea with work release, without consulting his victims, in what a federal court later found violated the Crime Victims' Rights Act. She notes how political alignments flip depending on whether the defendant is a police officer or a wealthy man accused of sexual abuse. Green closes on accountability: prosecutors are almost never disciplined for how they exercise discretion, with Mike Nifong's disbarment in the Duke lacrosse case the rare exception, and for discretion itself, the remedy is usually the next election.
What to Know Now
The Breonna Taylor case moved to federal court. Brett Hankison, the only officer indicted by the state grand jury, was acquitted of wanton endangerment in 2022. The Justice Department then charged four officers in 2022; Hankison was convicted in November 2024 of violating Taylor's civil rights and, after a new administration's prosecutors asked for no prison time, was sentenced in July 2025 to 33 months. Charges against two officers accused of falsifying the warrant affidavit were reduced twice and then dismissed with prejudice at the government's request in March 2026. In 2020 a judge allowed members of the state grand jury to speak publicly over Cameron's objection, and they confirmed that homicide charges had never been presented. Cameron left office in 2024 after losing the governor's race and lost a 2026 U.S. Senate primary. Marilyn Mosby, the Baltimore prosecutor in the Freddie Gray case, was convicted of perjury and mortgage fraud in unrelated matters and sentenced in 2024.
In the Epstein matter, the full Eleventh Circuit held in 2021 that the Crime Victims' Rights Act confers no rights before charges are filed, ending the victims' suit. Ghislaine Maxwell was convicted in 2021 and sentenced to 20 years; the Supreme Court declined in October 2025 to hear her argument that the non-prosecution agreement barred her prosecution. The Epstein Files Transparency Act, signed in November 2025, led the Justice Department to release more than three million pages of records in January 2026.
Structural reforms have followed the police-killing controversies. New York's Executive Law § 70-b (2021) gives the Attorney General's Office of Special Investigation jurisdiction over every death caused by a police or peace officer, and California's AB 1506 (2021) assigns the state Department of Justice to investigate fatal police shootings of unarmed civilians and publish its findings. The professors' point that prosecutorial discretion is checked mainly at the polls has played out: San Francisco recalled District Attorney Chesa Boudin in 2022 and Los Angeles voters unseated George Gascón in 2024. And the limits of accountability have been tested from the other direction, as when a federal judge in 2025 dismissed the corruption case against New York Mayor Eric Adams with prejudice after the Justice Department sought to drop it in what the court said "smacks of a bargain."
