Is Prosecutor's Authority to Select Who to Prosecute for Death Sentence Unconstitutional ?
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense.
Nothing in any of the cases suggests that the decision to afford an individual defendant mercy violates the Constitution.
Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.
In Gregg v. Georgia, 428 U.S. 153, 195, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), the petitioner argued that Georgia's death penalty scheme was unconstitutional because of the "opportunities for discretionary action" inherent in the process, which included the prosecutor's "unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them." 428 U.S. at 199.