Prosecution: Prosecutorial Discretion

The term "prosecutorial discretion" refers to the fact that under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would justify charges. This authority provides the essential underpinning to the prevailing practice of plea bargaining, and guarantees that American prosecutors are among the most powerful of public officials. It also provides a significant opportunity for leniency and mercy in a system that is frequently marked by broad and harsh criminal laws, and, increasingly in the last decades of the twentieth century, by legislative limitations on judges' sentencing discretion.

The grant of broad discretion to prosecutors is so deeply ingrained in American law that U.S. lawyers often assume that prosecutorial discretion is inevitable. In fact, some countries in Europe and Latin America adhere to the opposite principle of "mandatory prosecution," maintaining, at least in principle, that prosecutors have a duty to bring any charge that is supported by evidence developed by the police or presented by citizens. The extent to which that principle is actually followed in practice in these countries has been controversial. Some scholars have argued that practices analogous to American prosecutorial discretion and plea bargaining generally exist, more or less covertly, in such countries, or that the discretion exercised by prosecutors in the United States is effectively exercised there by the police instead.

The general acceptance of prosecutorial discretion in the United States is closely linked to our adversarial system of justice. The adversarial principle is generally taken to mean that judges in American courts are not commissioned to investigate cases, determine the truth, and provide justice. Instead, the courts are understood as dispute-settling institutions, in which judges take a more passive role, considering only such facts as are presented to them by the parties, and deciding only such issues as are necessary to resolve the disputes thus presented. Primary responsibility for defining the nature of the dispute, and presenting the relevant facts, lies with the parties and their lawyers. More specifically, criminal cases are seen as disputes between the government and individuals accused of crime. Just as a plaintiff in a civil suit has the option of withdrawing his claim, or settling it privately with the defendant—in which case the court has no further role—so in a criminal case, the prosecutor, as representative of the government, can decide that the interests of his client are best served by not taking any legal action at all, or by settling for relief short of what could in theory be available if litigation were pursued to its final conclusion. On essentially the same reasoning, the American system recognizes a formal plea of guilty by a criminal defendant as a conclusive resolution of the case that removes the need for judicial inquiry into the facts. If the plaintiff government and the defendant are essentially in agreement about whether the defendant should be punished, there is no dispute, and nothing for the courts to do. The authority of both prosecutor and defendant to waive or settle their potential differences thus gives rise to the potential for plea bargaining, in which the prosecutor agrees to waive some potential charges or sanctions in return for the defendant's agreement not to contest others.

The prosecutor thus plays a pivotal role in the administration of justice in America. To the extent that the prosecutor is the lawyer for the state, her client is not the police department or the individual victim of a crime, but society itself. As a practical matter, moreover, the prosecutor is not merely the attorney who represents society's interest in court, but also the public official whose job it is to decide, as a substantive matter, the extent of society's interest in seeking punishment. The prosecutor is thus not merely a barrister, exercising technical skill to advocate positions decided by someone else, but a significant public official, exercising political authority on behalf of the state to determine its substantive position. Consequently, the prosecutor is normally a politically responsible actor. In most states, the chief prosecutor of a district is elected, usually at the county level. (Often, the state attorney general, usually also an elected official, has some—generally limited—degree of authority over local district attorneys.) In the federal system, the chief prosecutor in a judicial district (the United States attorney) is appointed by the president, subject to confirmation by the Senate. While not directly elected, she is responsible to the people through the elected president and her Attorney General. As a practical matter, in both state and federal systems, the locally elected district attorney or the local United States attorney is usually the final authority on prosecutorial decisions in individual cases.