Exercise of Discretion

The case can be made that within our justice system the most powerful use of discretion lies in the office of the prosecutor. Here are a few reasons why.

While an officer has great leniency in whether to charge someone with a crime, that decision can be reversed by the prosecutor. Whether it be a speeding ticket or assertion of self-defense in a homicide, the prosecutor makes the ultimate decision as to the charge.

Once the case is in the prosecutor’s office, there isn’t much that can be done to pry it out of there. While prosecutors complain about not enough staffing and resources as excuses for huge backlogs, the reality is that the cases a prosecutor wants to move forward do. That is discretion.

As a prosecutor learns about the case, she has the discretion to dismiss the case, reduce charges, or fix a sentence that fits the crime. What charges a criminal defendant faces is a huge exercise of discretion. The grand jury might influence the charges, but prosecutors have tremendous sway over grand juries. Whether a young offender faces adult or juvenile charges will have a gigantic effect on his life.

Speaking of grand juries, even bringing a public corruption case before a grand jury is up to the prosecutor. I’ve seen a prosecutor ignore numerous accounts of fraud and incompetence by a county elected official because he didn’t want to “interfere” with the will of the voters.

While the bizarre case of the dismissal of Jussie Smollett’s charges is fresh on people’s minds, the reality is that there is no remedy in state courts for that type of prosecutorial discretion.  There may be a federal charge however, as that is a different prosecutor!

There is a local case alleging that a police officer stole huge quantities of seized drugs to feed his pain addiction. While the officer is entitled to the presumption of innocence, more than a year earlier the prosecutor sent out letters to defense attorneys telling about the loss of this critical evidence in many pending cases. So with knowledge of the alleged offense, why did it take a year to charge this officer? I submit that, had the accused been John Q. Citizen, SWAT would have arrived at midnight to arrest him. More prosecutorial discretion.

There are things like pre-trial diversion programs and mental health courts that prosecutors have the discretion to implement or not. The combined state and local funding of the district attorney’s office was about $2 million when I left in March 2010. The prosecutor has wide latitude in how that money gets spent. More discretion.

People used to ask me how they could overrule a DA decision I made, and it would irritate them to hear they have to wait for the next election. But that is the truth; there is no one who can make a prosecutor exercise discretion. Even Superior Court judges will tell defendants that the exercise of discretion by the prosecutor is not a judicial decision.

So, let me give you a tough prosecutor discretion case. Pregnant woman comes into hospital, gives birth to a malnourished and drug-addicted baby who is now facing a lifetime of issues. Does she face charges? Go to prison? It is your call but be ready to defend your position.

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