What is prosecutorial discretion?
After arresting and booking a criminal suspect, the police department hands the case to the prosecutor’s office. These officials decide how a case proceeds at each step of the prosecution, including whether prosecutors file charges, which charges the defendant will face, and whether to agree to a plea deal with the defendant. These decisions fall under the umbrella of prosecutorial discretion, as prosecutors get to make the final call at various stages of a criminal case.
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Understanding Prosecutorial Discretion
After police arrest someone, the case transfers from the police department to the prosecutor’s office, which determines whether or not to file charges. Depending on the nature of the charges, a criminal case may go to the county prosecutor’s office, the state attorney general’s office, or the U.S. Attorney’s office in federal cases. Once prosecutors take over a criminal case, they hold a special authority called prosecutorial discretion, which allows them to make critical decisions at various stages of the case, such as:
- Whether to move forward with pressing charges or dismiss the case
- Negotiating and accepting a plea deal from a defendant
- Accepting a defendant’s guilty plea
Prosecutorial discretion allows prosecutors to decide which charges to pursue against a defendant or whether to drop the case altogether. Prosecutors can exercise their discretion not to pursue a criminal case if they believe doing so will not serve the interests of justice, such as when punishing a defendant would offend the public’s sense of justice.
Prosecutors also use discretion to determine whether they have enough evidence to secure a conviction. They frequently decline to pursue cases if they believe the defendant can secure an acquittal. Given their office’s limited resources, prosecutor discretion may also determine which cases to pursue. Once they choose to proceed with a case, prosecutorial discretion also gives the prosecutor the authority to decide whether to negotiate a plea deal with a defendant and what terms they might accept.
What Influences Prosecutorial Discretion?
Different factors will influence prosecutorial discretion at each stage of a criminal case. During the charging stage, a prosecutor must determine which charges to file against a defendant or whether their office should pursue the case. Factors prosecutors might consider when deciding whether to bring a case and which charges to file include:
- The strength of the evidence supporting the case for a specific charge
- The seriousness of the crime (e.g., violent vs. non-violent offense, misdemeanor vs. felony, number of victims, etc.)
- The likelihood of conviction, given the evidence, public sentiment, etc.
- The defendant’s criminal history
Prosecutors also consider practical factors, such as the office’s caseload and court backlogs, when making charging decisions. They must determine whether they have the staff to adequately prepare a case and bring it to trial within the deadlines imposed by law and the Sixth Amendment. Prosecutors may prioritize more severe cases, such as violent crimes, crimes involving substantial financial losses, or drug distribution.
Finally, prosecutors may also consider the public interest in a specific case, such as public demands for justice or to drop charges against the defendant. Political and social factors, such as the prosecutor’s office’s current policy initiatives or preferences, may also influence their decisions. For example, they may stop prosecuting specific crimes in anticipation of their legalization (as many jurisdictions have done with marijuana-related offenses) or crimes whose enforcement and prosecution disproportionately target minorities or marginalized communities.
Advantages and Criticisms of Prosecutorial Discretion
Prosecutorial discretion can benefit both defendants and the criminal justice system. It allows the system to focus on more severe crimes, such as removing violent offenders from the street or bringing people who have caused significant property damage or financial loss to justice. Discretion also enables prosecutors’ offices to manage limited resources, ensuring they have the best chances of success in the cases they decide to file and take to trial.
Prosecutorial discretion also empowers prosecutors to consider the specific circumstances of a defendant’s case and offer a fair outcome. For example, they may choose to drop a case when the prosecution wouldn’t serve the interests of justice, or they may offer a fair plea deal to a defendant who allows the prosecutor’s office to avoid the time and expense of trial with a guilty plea.
However, critics of prosecutorial discretion argue that prosecutors have leveraged their authority with negative consequences. For example, they may disproportionately exercise discretion, favoring certain defendants over others based on race, national origin, religious beliefs, or socioeconomic status.
Critics also note the need for more accountability and transparency in prosecutorial discretion, as prosecutors may not have to justify their decisions or face accountability when they exercise their discretion in a discriminatory manner. Furthermore, inconsistent application of prosecutorial discretion, such as granting leniency to one defendant but not another in a similar case, may lead to public perceptions of injustice.
Legal and Ethical Considerations Around Prosecutorial Discretion
Prosecutors must consider legal and ethical factors and rules when exercising their discretion. First, prosecutors must exercise their discretion in a neutral, non-discriminatory manner. Prosecutors also have the legal and ethical duty to decline to file charges when the evidence does not support probable cause. Finally, prosecutors should consider the effects exercising discretion in favor of a defendant may have on other parties, such as victims of crime or the general public. Those directly impacted by crime may feel angry or frustrated by not seeing the person who wronged them brought to justice. The public, meanwhile, may feel less safe if they perceive prosecutors as too lenient on criminal defendants.
Contact a Criminal Defense Attorney Today
Prosecutorial discretion can allow you to obtain a favorable resolution to your criminal charges. An experienced criminal defense attorney from De Castroverde Law Group Criminal & Immigration can advocate for your interests to persuade the prosecutor to exercise their discretion to provide a fair outcome. Contact our firm today for a confidential consultation to discuss your charges.