Prosecutorial Discretion

Prosecutorial discretion is the authority of a prosecutor, or the prosecutor's or other office charged with enforcing a law, to decide whether and how to enforce the law. The outer boundary of such discretion is set by legal limitations on the prosecutor. Ideally, prosecutorial discretion will be exercised in accordance with considerations of fairness, equality, and public safety. However, often more mundane considerations, such as resource limitations, political pressures, or personal advancement, will dictate its exercise. While the term prosecutorial discretion is applied largely in the criminal justice context, administrative agencies with civil enforcement authorities also exercise such discretion.

The tension between the desire for uniform and consistent decision making on one hand and the need for flexibility to assure individualized treatment on the other shapes prosecutorial discretion. While it is difficult to strike a coherent balance between the two, standards—whether internal or external—should guide the work of prosecutors, and the adherence to such standards must be judicially reviewable.

The scope and breadth of prosecutorial discretion depend on the rules governing the criminal justice system and its players. While prosecutors in all countries, even those that mandate compulsory prosecutions and prohibit plea bargaining, exercise some discretion, U.S. prosecutors appear to find themselves with the widest, and least supervised, discretion.

Prosecutorial discretion may begin with the planning of investigations and the choice of prosecutorial targets and extends to the charging decision. With few exceptions, such as police brutality and political corruption cases, scholars have not much studied the planning and choice issues. Charging discretion includes the decision whether to charge an individual, the selection of the types of charges, and their number, the timing of the indictment, and to some extent the court in which the charges will be filed. In the U.S. criminal justice system, the prosecutor has broad authority to engage in plea bargaining with the defendant, which allows the prosecutor to drop charges or promise a lesser sentence in exchange for a guilty plea. Americanstyle plea bargains are a uniquely American concept; nevertheless, similar bargains occur in other countries but usually only for minor offenses, on a smaller scale, and less systematically. Finally, the prosecutor's discretion carries into the sentencing procedure, where she may recommend leniency. Importantly, prosecutorial discretion exists beyond these important stages in the individual decisions prosecutors must make throughout a criminal case.