Cite as: 510 U. S. 266 (1994)
Stevens, J., dissenting
is reflected in the common-law tort of malicious prosecution,10 as well as in our cases.11 In addition, the probable-cause requirement serves valuable societal interests, protecting the populace from the whim and caprice of governmental agents without unduly burdening the government's prosecutorial function.12 Consistent with our reasoning in Winship, these factors lead to the conclusion that one element of the "due process" prescribed by the Fourteenth Amendment is a responsible decision that there is probable cause to prosecute.13
Illinois has established procedures intended to ensure that evidence of "the probable guilt of the defendant," see Hur-10 See, e. g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 119, pp. 876-882 (5th ed. 1984).
11 Wayte v. United States, 470 U. S. 598, 607 (1985); Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) ("In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion"); Gerstein v. Pugh, 420 U. S. 103, 119 (1975) ("The standard of proof required of the prosecution is usually referred to as 'probable cause,' but in some jurisdictions it may approach a prima facie case of guilt"); see also United States v. Lovasco, 431 U. S. 783, 791 (1977) (noting that "it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause") (footnote omitted); United States v. Calandra, 414 U. S., at 343 (noting that one of the "grand jury's historic functions" was to determine whether probable cause existed); Dinsman v. Wilkes, 12 How. 390, 402 (1852) (noting that instigation of a criminal prosecution without probable cause creates an action for malicious prosecution).
12 Because probable cause is already required for an arrest, and proof beyond a reasonable doubt for a conviction, the burden on law enforcement is not appreciably enhanced by a requirement of probable cause for prosecution.
13 I thus disagree with dicta to the contrary in a footnote in Gerstein v. Pugh, 420 U. S., at 125, n. 26 ("Because the probable cause determination is not a constitutional prerequisite to the charging decision, it is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial"). As I have explained, the commencement of criminal proceedings itself infringes on liberty interests, regardless of the restraints imposed.
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