What is Prosecutorial Discretion?

Created by FindLaw's team of attorney writers and editors.

Prosecutors have the power to decide whether or not to charge a particular defendant and which charges to file. This rather broad power is called "prosecutorial discretion." Under this power, prosecutors also have the authority to enter into plea bargains with a defendant, which can result in the defendant pleading guilty to a lesser charge or receiving a lesser sentence for pleading guilty to the original charge.

Given the scope of this power, are there any limits? Read on to learn about the powers of prosecutors, the advantages and disadvantages of prosecutorial discretion, and when that discretion crosses the line into prosecutorial misconduct.

When Prosecutors Use Their Discretion

Prosecutors may have a variety of reasons for using prosecutorial discretion. One reason that a prosecutor may decide not to file charges against a defendant is lack of evidence. A prosecutor has the burden to prove beyond a reasonable doubt any charges they file against a defendant, so if the evidence isn't there or it's shaky, they may decide against filing the charges.

Prosecutorial discretion also allows prosecutors not to file charges, to drop charges or to offer a plea deal when the circumstances surrounding the "crime" warrant it. For example, if the facts and evidence indicate that a killing was actually in self-defense (which can be a close call in some cases), the prosecutor may reduce the charges from murder to manslaughter, or even drop the charges entirely.

Advantages of Prosecutorial Discretion

Probably one of the biggest advantages of allowing prosecutorial discretion is that it promotes judicial economy. There's only so much time available on a court's calendar, so a prosecutor's ability to decide when to charge a defendant as well as their ability to plea bargain with a defendant allows prosecutors to ease the burden not only on themselves but also on courts and judges.

Prosecutorial discretion also allows prosecutors to secure cooperation of witness defendants by allowing them to offer reduced sentences or charges in exchange for testimony against another defendant. For example, a prosecutor may offer a low-level drug dealer probation in exchange for testifying against a serious drug trafficker.

Disadvantages of Prosecutorial Discretion

Probably the biggest downside of prosecutorial discretion is that it creates the potential for prosecutorial misconduct that can be seen in cases of selective prosecution. Because of the inherent subjectivity of a prosecutor's discretion, their personal beliefs and biases - whether conscious or unconscious - can creep into their decisions. This can lead to prosecutors filing charges based on a defendant's race or social status.

Selective prosecution isn't just a societal problem, it's actually a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. In fact, a defendant can use it as a defense, although it can be difficult to prove. In order to succeed, the defendant must prove that the prosecutor's policy:

  • was motivated by a discriminatory purpose; and
  • had a discriminatory effect.

In proving a discriminatory effect, the defendant would need to show that similarly situated individuals of a different race, class, etc. weren't prosecuted for the same or similar crime. Given that most cases have a unique set of facts, there are any number of ways that a prosecutor could argue that certain facts warranted prosecution while others did not.

Have More Questions About Prosecutorial Discretion? Ask an Attorney

If you're facing charges but believe you've been unfairly targeted by the government, you may be able to make the case for selective prosecution or some other form of prosecutorial misconduct. Whether this defense is available to you or not, it's always important to have an experienced legal professional on your side. Get in touch with a local criminal defense attorney today for a confidential assessment of your case.

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