What is Prosecutorial Discretion?

When someone commits a crime, prosecutorial discretion is something that will come into play when deciding how a person is charged for what they did. Prosecutors hold a lot of power, and many times, they are trying to find the right way to prosecute someone who broke the law by committing a crime. But what exactly is prosecutorial discretion, what does it involve and when is it used by prosecutors? Find out all about that in this article.

What Is Prosecutorial Discretion?

Prosecutorial discretion is something that happens when a prosecutor has to come to a conclusion regarding a crime committed by a person. More specifically, prosecutors apply this method when they have to decide whether a person should be charged for a crime or not, but also which criminal charges would be suitable for the specific case. Prosecutors hold a lot of power for this. As such, they are also able to enter into plea bargains with defendants sometimes. The defendant can then either plead guilty to the initial charge or choose to plead guilty to a lesser charge.

Have you ever encountered a situation where a police officer gives you a warning instead of charging you for driving too fast, or have you seen it happening to someone else? This is a good example of the situation described above.

Prosecutorial discretion can happen in administrative, criminal, and civil contexts, and according to the Supreme Court, “an agency’s decision not to prosecute or enforce, whether through a civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”

Prosecutorial Discretion and ICE

Prosecutorial discretion is an agency’s authority to enforce the law and also to decide where to focus its resources, as well as whether enforcing or not enforcing the law against someone is necessary. ICE’s OPLA, aka the ICE Office of the Principal Legal Advisor, also relies on Prosecutorial Discretion when making such a decision.

Before EOIR, the attorneys from OPLA may have to exercise prosecutorial discretion, which has to receive guidance from DHS and also direction from the Chief Counsel. OPLA attorneys also have to adhere to the enduring principles applying to the activities that include:

• Following the senior leadership guidelines and strategic directives
• Upholding the rule of law
• Exercising considered judgment and making sure to do justice in every individual case
• Ethically discharging duties according to the law and professional conduct standards

Prosecutorial discretion arises at many times during the removal process when OPLA is enforcing immigration laws. Besides, it applies to many determinations and can take different forms. Different factors are also considered by OPLA when they have to decide whether exercising a PD is suitable. Such factors include:

• The status of the noncitizen as a witness, victim, or plaintiff in criminal or civil proceedings
• The immigration history the noncitizen had previously
• The community ties of the noncitizen in the U.S.
• The U.S. residence length of the noncitizen
• The U.S. military family service of the noncitizen or his/her family
• The U.S. work and education history of the noncitizen
• Circumstances of the arrival of the noncitizen in the U.S. and how he/she entered
• Different compelling factors that exist in the case of the noncitizen, such as pregnancy, status as a child, age, serious medical condition, and status as the main caregiver of a U.S. relative that is seriously ill.

In situations where a noncitizen has been either convicted or charged for a crime abroad or in the U.S., OPLA attorneys will have to take different factors into account, including:

• Indicia of rehabilitation
• The length and time of the sentence that was imposed
• The seriousness, extensiveness, and recency of the criminal act
• How much time has passed since the occurrence of the conviction
• Extenuating circumstances that involve the conviction or the offense
• Whether the criminal act supports a determination that the individual would be a threat to people’s safety.

When Prosecutors Use Their Discretion

Prosecutors may use prosecutorial discretion in many cases. Besides, they can all choose to use it for various reasons. In some cases, there may simply not be enough evidence to file charges against a defendant, and this is a common reason why charges are not filed. After all, the prosecutor has the responsibility to prove without a doubt any charge filed against the defendant. Therefore, if there is little to no evidence, filing charges is not the direction they will want to take.

Through prosecutorial discretion, some prosecutors also have the option of offering a plea deal, but also drop charges or file no charges, especially when it is warranted by the circumstances surrounding the crime. For instance, if someone kills another individual in self-defense and there is enough evidence to support this claim, then the charges may be dropped by the prosecutor, or they may be reduced from murder to manslaughter.

Advantages of Prosecutorial Discretion

There are many advantages to prosecutorial discretion, one of them being the fact that it allows prosecutors to guarantee the witness defendant cooperation. Witness defendants’ cooperation will let them give smaller charges or sentences as long as testimony is offered against a different defendant. That being said, if there is testimony against a serious drug trafficker, then the prosecutor may offer a low-level drug dealer probation in exchange.

Then, there is also the advantage of promoting the judicial economy. Prosecutors can save a lot of time, especially considering how busy some courts can be. The prosecutor has the power to decide when charging a defendant is necessary, and they can also plea bargain. They will have fewer things to worry about, and so will the judges and the court.

Disadvantages of Prosecutorial Discretion

Prosecutorial discretion has some downsides as well. One of them is the fact that prosecutorial misconduct is something likely to happen, especially in selective prosecution cases. Sometimes, their decision may be affected by biases or personal beliefs, and this may actually lead to charges being filed based on these beliefs.

The worst thing about this is that someone may be charged based on their religion, social status, or race. This is also an Equal Protection Clause violation. Defendants can use this as a defense but proving it can be extremely difficult. The defendant will have to show evidence that the policy of the prosecutor either had a discriminatory effect or had a discriminatory purpose as a motivation.

Defendants may also have to prove that other individuals of different social statuses or races were not prosecuted for a similar or identical crime. As you can imagine, this is not exactly a piece of cake.

Read More

• How Much Does an Immigration Lawyer Cost?
• Immigration Attorney Fees: Everything You Need to Know
• How to Write a Good Moral Character Letter for Court

The Bottom Line

Prosecutorial discretion is something that can come in handy. It can save some time for the court, as well as charge someone accordingly for a crime they’ve committed. This way, the culprit will pay for what they’ve done.

On the other hand, there are situations when a prosecutor can discriminate against a defendant and charge him/her based on race or other factors. In this case, it can be difficult for the defendant to prove the discrimination case. All in all, when used accordingly, prosecutorial discretion can be very useful.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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