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Prosecutorial Discretion

Discretion in the criminal justice system refers to the capacity of court officials and law enforcement agents to make authoritative decisions in the absence of specified directives and controls. Legal scholar Kenneth Culp Davis emphasized that discretion in the criminal justice system provides prosecutors the freedom to choose what they will rely upon in determining whether government action will be taken against a suspect and how prosecution will proceed if criminal charges are filed.

Associated with discretionary decision-making is uncertainty about what case information, institutional constraints, and external forces influence prosecutors’ decisions. Unlike in other Western democratic countries, in the United States, prosecutors at both state and federal levels exercise wide latitude of discretion in deciding to prosecute, the level of criminal charges and number of ...

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