prosecutorial discretion | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Introduction

Prosecutorial discretion refers to the power of prosecutors to decide whether to bring criminal charges, negotiate plea bargains, or dismiss charges based on factors such as the strength of the evidence, the severity of the offense, and the defendant’s criminal history.

Prosecutorial discretion is an essential component of the criminal justice system in the United States. It allows prosecutors to use their judgment and expertise to decide how best to handle individual cases based on the facts and circumstances involved. However, this discretion is not unlimited, and prosecutors are still bound by ethical and legal obligations to uphold the law and protect defendants’ rights.

One of the most significant areas where prosecutorial discretion comes into play is the decision to bring criminal charges. Prosecutors can decide whether to charge a defendant with a crime and what specific charges to file based on the available evidence. This can have a significant impact on the outcome of the case, as different charges carry different penalties and require different levels of proof.

In addition to the decision to charge a defendant, prosecutors also have discretion when it comes to negotiating plea bargains. A plea bargain is an agreement between the prosecution and the defense in which the defendant agrees to plead guilty to a lesser charge or to cooperate with the prosecution in exchange for a reduced sentence. Prosecutors can decide whether to offer a plea bargain in a particular case and what terms to include in the agreement.

Finally, prosecutors also have discretion when it comes to dismissing charges. In some cases, prosecutors may decide to dismiss charges against a defendant if the evidence is weak or if there are issues with the way the case was investigated or prosecuted. This can occur at any stage of the criminal justice process, from before charges are filed to after a conviction has been obtained.

While prosecutorial discretion is a necessary and valuable tool for prosecutors, it can also be the subject of controversy and criticism. Some argue that prosecutors have too much discretion and that their decisions can be influenced by factors such as race, socioeconomic status, and political considerations. Others argue that prosecutors should have even more discretion, particularly regarding cases involving nonviolent offenses or individuals with mental health or substance abuse issues.

Ultimately, the exercise of prosecutorial discretion is a complex and multifaceted issue that requires careful consideration of the facts and circumstances of each individual case. Prosecutors must balance their duty to uphold the law with their obligation to protect defendants’ rights and ensure that justice is served.

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Last Modified: 03/13/2023


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