Prosecutorial Discretion: Definition, Pros & Cons

Instructor: Melanie Norwood

Melanie has taught several criminal justice courses, holds an MS in Sociology concentrating in Criminal Justice & is completing her Ph.D. in Criminology, Law & Justice.

In this lesson, we will discuss the role of the prosecutor is in our legal system and how prosecutorial discretion comes into play. We'll talk about plea bargaining and offer some pros and cons to prosecutorial discretion.

Prosecutorial Discretion: A Power of the Prosecutor

In order to understand prosecutorial discretion, we must understand what the position of a prosecutor entails. Prosecutors are attorneys who work for state and district attorneys. Any fan of the show Law & Order should be familiar--prosecutors are the attorneys brought in to examine evidence and process cases against defendants in criminal court.

Under U.S. law, a prosecutor is allowed prosecutorial discretion, which is the power to determine whether or not to charge an accused offender and, if so, the most appropriate charge for that offender, based on evidence. The prosecutor then files these charges on behalf of the state or United States against an individual, group or entity that has broken the law. Prosecutorial discretion also allows the prosecuting attorney to plea bargain a case, which we will discuss in greater detail later.

With this great power comes great responsibility, so the prosecutor must take into account several factors when practicing prosecutorial discretion. The prosecutor must ensure that:

  • The evidence presented substantiates the crime the offender is charged with.
  • The evidence was collected and handled ethically and properly.
  • Justice is served for the crime committed.
  • These steps are completed in a timely fashion so as to not violate the rights of the accused offender.

Further Understanding Plea Bargaining

Prosecutors may decide to resolve a case through plea bargaining if doing so is in the best interest of all parties involved. During a plea bargain, the prosecutor will offer the accused offender an opportunity to plead guilty to a lesser charge or fewer charges in exchange for a lighter sentence (compared to a sentence if the offender were found guilty to the original charges in a court of law). Say, for instance, that a woman accused of second-degree murder took a plea bargain in which she pled guilty to a lesser charge, manslaughter. Rather than 20 years in prison, she received 15 years in prison, in addition to fines.

Plea bargaining is an integral part of a prosecutor's role in the court system and a necessary component to the court process. There are not enough prosecutors and judges to handle all the cases if every single one were to go to trial--plea bargaining allows the accused offender to bypass court, saving the criminal justice system time and resources.

Pros of Prosecutorial Discretion

There are ample benefits to prosecutorial discretion. This power allows the prosecutor to mitigate the time and expense of a trial through expedient decision-making and plea bargaining. In the case of a plea bargain, the accused offender spends less time sitting in jail awaiting the necessary preparations for trial. This also reduces the time and expense of preparing for trial and the costs of incarcerating the offender for a longer period of time. In the larger scope of the system, prosecutorial discretion works to ensure that simple cases are resolved efficiently and more time and resources are dedicated to the more important cases (those involving more serious crimes).

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