What is Prosecutorial Discretion?

Mary McMahon
Mary McMahon

Prosecutorial discretion is the ability to decide if charges should be brought in court and to determine the nature of those charges. This power can be seen in the court system in the United States, where prosecutors are very powerful as a result of prosecutorial discretion, and some other legal systems have similar frameworks in place. There are some limitations on this power, as prosecutors may not violate civil rights by bringing charges vindictively or selectively, and they can be challenged on their decisions about when, where, and how to bring charges.

A judge must approve a plea bargain before it is final.
A judge must approve a plea bargain before it is final.

Under the adversarial legal system in the United States, when citizens or law enforcement officers bring criminal complaints to a prosecutor, the attorney reviews the information to decide if enough material is present to make a case and to make a decision about the kinds of charges involved. The prosecutor decides whether to take the case to court and makes a choice about the kinds of charges to be filed. Input from people involved may be considered, but ultimately, it is the prosecutor's decision.

In the U.S., a prosecutor can decide whether to take a specific case to court and determine the types of charges to be filed.
In the U.S., a prosecutor can decide whether to take a specific case to court and determine the types of charges to be filed.

The concept of prosecutorial discretion also applies to plea bargaining. A person charged with an offense may be offered the option of pleading guilty for a reduced charge or sentence. The prosecutor decides if this should be permitted in a given case and makes a decision about the deal to offer the defendant. Plea bargains can be useful for moving cases through a court quickly and can also be used as a tool for addressing perceptions of unfairness in mandatory sentencing, by allowing people to plead down from a crime with a harsh mandatory sentence.

When exercising prosecutorial discretion, people must be careful to avoid violating civil rights. If a prosecutor presses charges in one case and doesn't in a virtually identical situation, this can attract scrutiny and may result in a lawsuit. Issues like the race, class, or gender of the accused can all factor into suits about civil rights issues; someone may argue, for example, that a prosecutor was demonstrating bias in choosing to pursue charges against a given person. Prosecutors are careful to document the process of decision-making in order to avoid legal challenges.

In other legal systems, prosecutorial discretion is not present. All criminal cases may need to be brought to court for hearing by judges and juries, regardless of the strength of the charges and the situation. In these cases, judges may not be bound by issues like mandatory sentencing, and can enjoy more leniency when hearing cases and making decisions about sentencing.

Mary McMahon
Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a wiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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Discussion Comments


@TreeMan - I believe most cases are decided by a grand jury. I don't know if different states have different standards, but I know that in certain circumstances the prosecutor can charge someone without grand jury approval.

Probably the most prominent recent case where this happened was with the Trayvon Martin shooting. In Florida, the only cases that are absolutely required to go in front of a grand jury are first degree murder charges. Since it did not qualify for that, the attorney had to option to go to a grand jury or make the decision herself.

A lot of people criticized the move saying that George Zimmerman should have been arrested immediately. Regardless of whether or not the prosecutor thought he was guilty, she had to make sure that there was adequate evidence to make the charge. Otherwise you end up with a prosecutorial discretion problem like outlined in this article.

The article talks about the prosecutors considering evidence from law enforcement, etc., before bringing a case to trial. I was always under the impression, though, that this was reserved for a grand jury. Isn't the whole purpose of a grand jury to look at all of the evidence in a case and decide whether there is enough for a person to be brought to court or for a warrant to be issued?

In a case where it was found that a prosecutor may have been biased in their decision making, are there any repercussions? Are they removed from their position or reprimanded or anything?

Finally, is there any difference in prosecutorial discretion when considering criminal court cases at the state level when compared to federal criminal cases?


I think it is good that we have a system in place to regular how prosecutors act. What I am wondering about now is whether or not all of the prosecutors from a certain district all follow the same standards whether they are specifically written or just unspoken.

For example, if two people are being charged with the same thing under identical circumstances, but they have a different prosecutor. Can one agree to let them take a plea bargain while the other one does not agree, or is that also considered unfair? It doesn't seem right that your sentence would be based on the randomness of which person ended up being stuck with your case.

Going even further from that. I would be curious to know whether the attorneys from certain states have different standards from adjoining states.

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