The prosecutor is the attorney arguing on behalf of the DA and state in criminal cases. They are allowed prosecutorial discretion when deciding whether they have enough evidence to build a strong case and, therefore, if they should charge someone or not. They also have prosecutorial discretion in deciding which criminal charges they may file. There are no set guidelines when it comes to prosecutorial discretion; they only have to act fairly and consistently within their role. Therefore, prosecutors are allowed to take into account the circumstances of the case and any mitigating factors when charging a defendant.
What Powers Are Prosecutorial Discretion?
Prosecutors may exercise the following powers in prosecutorial discretion:
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- Reducing the charge due to mitigating factors
- Offering plea bargains with the defendant
- Offering a “deal” in exchange for pertinent information
- Not pursuing a case when there is not enough evidence or too much reasonable doubt (or reducing to other charges instead)
- Not opposing certain motions or applications
The law requires prosecutors to wield their prosecutorial discretion in a way that does not unfairly punish the innocent nor lets the guilty go free.
For example, if the defendant is charged with murder, the prosecutor will review all the evidence law enforcement has collected. They may decide that there is not enough evidence to prove that the defendant murdered the victim, but they have video footage showing the defendant brandishing a weapon at the victim at a bar earlier that night. The prosecutor may use their prosecutorial discretion to pursue brandishing a firearm charge instead of pursuing murder charges.
Why Does the Law Allow Prosecutorial Discretion?
One of the largest benefits of prosecutorial discretion is it allows the prosecutors the power to offer deals to people in exchange for co-operation. The prosecutor can offer a plea bargain in exchange for a guilty plea, and therefore saving the time and financial resources of the court. The prosecutor can also offer deals in exchange for important information that can help solve other crimes or provide evidence against other criminals.
The court and other government agencies have a finite amount of resources, and therefore prosecutorial discretion is used to prioritize the important cases. If the prosecutor can dismiss cases without enough probable cause or win plea bargains, then it saves the courts a lot of time and money. ICE has prosecutorial discretion that allows them to prioritize immigration cases that pose a threat to national security or public safety. They will pursue or zealously try cases for immigrants who have committed crimes over other cases. ICE can also use prosecutorial discretion to decide not to oppose applications for relief or other appeals.
Legal Ethics of Prosecutorial Discretion
The courts and the law hold prosecutors to a high standard of legal ethics. They must use prosecutorial discretion in a fair and efficient manner. Prosecutorial discretion must be used consistently and be justified for fairness, to ensure the smooth operation of the criminal justice system, or to protect human rights and dignity. The prosecutor must be able to defend their prosecutorial discretion if it is challenged and be able to prove that discrimination does not play a part.
Prosecutors are also bound to ethics to file appropriate charges based on probable cause. For example, if a prosecutor is pursuing a case and realizes that they do not have sufficient cause for the case, they must notify the court immediately.
Examples of Prosecutorial Discretion
Prosecutorial discretion is used on a case by case basis and examines the case and surrounding circumstances as a whole. Some examples of prosecutorial discretion are:
- Charging a driving without a license case as an infraction rather than a misdemeanor if the defendant successfully obtains a valid driver’s license after being charged.
- ICE asking the immigration court to close a case even though the immigrant is removable. This may be to protect resources or because the immigrant has useful information to “trade.”