Via OrgTheory, a study finds that the more severe penalties faced by blacks arrested for the same charge and with the same criminal history is almost entirely explained by the prosecutor’s choice of charge (particularly those with minimum sentences). It used to be the case that judges decided penalties, but there has been a great rise in the number of laws mandating minimum sentences to take that decision out of their hands, which effectively puts it in those of the prosecutor. That is a major component of the story the late William Stuntz tells in his recent book, The Collapse of American Criminal Justice.

On a less related note, a shift from procedural rules to discretion is what Paul Romer thinks is necessary for financial regulation.