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Prosecutorial Discretion

Definition - What does Prosecutorial Discretion mean?

Prosecutorial discretion is the name given to the responsibility bestowed upon prosecutors within the U.S. judicial system, which allows them to have the final say as to who is charged and with what crime.

Prosecutors have to review every criminal case that comes before the court on behalf of a state, and if they find that they do not believe the case holds merit, they can refuse to try the case, effectively allowing the potential defendant to go free from being charged for any crime. Likewise, when a sentence is given, the prosecutor is able to decide what they feel that the sentence should be, although it is always the judge that upholds the sentence.

For cases that have the probability of a custodial sentence (incarceration), the prosecutor then asks the judge for, or seeks, a sentence that they personally feel is in line with the crime that was committed and the background of the defendant who committed the crime. This means that although there are set laws and regulations that must be followed, when a person breaches one of these acts, there isn't a single set punishment but rather a range of punishments that can be determined by the court.

Justipedia explains Prosecutorial Discretion

The reason why prosecutorial discretion exists is due to the fact that there can be mitigating factors to any criminal offense that may, for the reasons of being just and fair, need to be considered before making a decision. An example of this is if a person murders someone that was in the process of harming another person. The act of murder would therefore have been considered defensive and the charge would most likely be decreased to manslaughter.

That is not to say that prosecuting attorneys do not have to uphold a certain measure of law, but they do have a range of discretion that is proportionate to the crime. They would not, for example, be able to allow a murderer to walk free from any court interaction, but they could recommend that the defendant would not have to serve a long jail term. The range of discretion includes being able to withdraw a request for incarceration and recommend that the person pay a fine instead, or perhaps be placed on electronic monitoring tags at their own home.

Prosecutors are more likely to give lenience to defendants who do not have past criminal files and who did not intend to create the action that they were charged with. In this sense, a premeditated act would most certainly be met with a prosecutor determining in their discretion that the maximum charge and incarceration time need to be applied.

The degree to which prosecutors can use their discretion and the range of latitude they have is normally consistent across the U.S., but can change in jurisdictions where a criminal act is met with a greater degree of disdain, or where repeat actions create the need to deter future criminals from repeating these measures. An example of this would include a protest group that continually protested and broke the law over one specific subject (like fracking) or in relation to one specific corporation.

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