What Is Prosecutorial Discretion

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In our system of jurisprudence, there are always at least two parties who are adverse to each other.  In criminal law, the adverse parties are generally the State and the defendant.  Prosecuting attorneys are attorneys who represent the State (some scholars argue that prosecutors represent the victim) in a criminal case.  But to what extent is this power granted, and under what authority?  In our system of jurisprudence, prosecuting attorneys have, what attorneys refer to as, prosecutorial discretion.  Prosecutorial discretion gives a prosecuting attorney nearly absolute and unreviewable power in the decision to prosecute, and who to seek prosecution against.  Prosecutorial discretion works in our system, similar to how a plaintiff in a civil case is permitted to withdraw the complaint at any time.  Prosecutorial discretion is not limited to prosecuting attorneys and can prove extremely complicated depending upon the context.  For example, in the context of immigration law, the power of prosecutorial discretion is granted to the Immigration and Customs Enforcement (ICE) agency to be used in deportation cases.  This form of prosecutorial discretion used by ICE, unlike in criminal cases, typically requires a hearing.  Those facing deportation should consult with an attorney prior to requesting prosecutorial discretion in this context.

As stated above prosecuting attorneys have the duty to charge individual(s) and corporation(s) with offense(s).  In exercising this duty, prosecuting attorneys have vast discretion in deciding what and who to charge, and vast discretion in carrying out this decision.  There are four major reasons why a prosecuting attorneys may choose to exercise their prosecutorial discretion:  (1)  There is not enough evidence, or the evidence is not strong enough to justify a prosecution; (2)  The interest of society will be better served by exercising mercy than a criminal punishment; (3)  The prosecuting attorney’s responsibility to control limited law enforcement resources; (4) and The availability of witnesses (and in some cases the victim) to testify on behalf of the State.  Prosecuting attorneys also look at other remedies that may be available to rectify any damage caused from the criminal offense and their own personal belief as to an accused’s guilt.  Because prosecuting attorneys have the burden of proving an individual’s guilt beyond a reasonable doubt, it makes sense that their discretion is used to prevent, with the broad discretion that follows, the decision of whether to prosecute an individual or not.  To illustrate, in a murder case where an accused alleges to act out of self-defense, a prosecuting attorney can use discretion to decide which specific murder charge to use, or if to charge at all.  Specifically, the prosecuting attorney can choose whether to charge the accused with a higher or lower degree of murder, dismiss the criminal case altogether, or impose a civil punishment, such as restitution instead.

There are very few sanctions, if any, available for when a prosecutor abuses its discretion.  Specifically, in Georgia, the maximum punishment allowed for a prosecutor that acts outside of his or responsibilities as a prosecuting attorney is a public reprimand.[1]  Prosecutorial discretion, although rarely questioned, has been the issue of a few Supreme Court cases.  Generally, the issue of prosecutorial discretion in this context comes about in capital offenses, specifically those in which the death penalty was imposed. In those cases, statistics on the disparities of prosecutorial discretion to seek the death penalty were exposed.  Some cases resulted in the conviction being overturned, or the Supreme Court declaring the imposition of the death penalty against certain groups of people cruel and unusual.

Prosecuting attorneys have direct control over the cases that enter our criminal justice system.  Prosecutorial discretion creates room for leniency and mercy within our criminal justice system, especially in light of increasing legislative limitations on judicial sentencing discretion.  Prosecutorial discretion can be a helpful tool for prosecuting attorneys, especially those serving jurisdictions with limited resources.  As stated above, this power, most of the time, can go unchecked. It is because of this and other reasons, prosecuting attorneys are placed in one of, if not the most powerful positions within our criminal justice system.  Although a power unchecked by official authorities, an experienced criminal defense attorney, with knowledge of relevant case law and statute is in a better position to argue the limits and bounds of prosecutorial discretion.  For this reason, anyone charged of committing an offense should seek out a criminal defense attorney as soon as possible.

[1]Ga. R & Regs, St. Bar 3.8 (2018).