Deciding Who's Guilty: Prosecutorial Discretion

Believe it or not, when a person does a criminal act and is arrested there is a moment of decision by the prosecuting authority whether or not to pursue charges aka push the case further down the legal gambit. A lot of people have an on/off view of the guilty/innocent process but in reality there is a ton of grey area.

And that's a good thing! Allowing flexibility in the criminal justice system makes room for humanity, or else we would be living in some kind of robo-cop dystopia where accidently running a stop sign begets the harshest punishment.

The decision of who gets chosen for the pursuit of legal guilt and punishment sometimes comes down to a single person, a human being just like you, who in a split moment without understanding the full weight of a case must proceed to the best of their ability.

As you can imagine, protracted over bias and systemic norms, the result of a multitude of these decisive moments can be equitably unbalanced. For the individual defendant, the impact of being found legally guilty of even a petty crime can have lasting consequences including loss of future rights, freedoms, finances, and not to mention the psychosocial blowback that changes the trajectory of your life. There's an incredible power resting in the hands of a prosecutor in those first decisive moments.

>> There are people who walk away from an arrest with no charges at all - maybe just a bad day and a story to tell, and then there are others who commit the same crime but go to prison. <<

Individualized justice is necessary and expected of the professional prosecutor. The legal code is a floppy bag of air without prosecutors giving it shape and form. In fact, criminal codes are designed to be under-enforced. If every code written were exercised precisely to the letter in every single case it would be an unrealistic burden on the public and the justice infrastructure to the point of causing injustice. The reality is that the horizon line of enforcement and prosecution is intentionally blurred.

While there are no two cases exactly alike, there are cases whose core facts are alike. The interpretation of justice for alike offenses varies wildly. For example, public urination in a dark alley by an unhoused person may seen innocuous and necessary by some and to others it offends the quality of life of nearby residents and should be prosecuted. Thus, each case deserves contextualized scrutiny by law enforcement and prosecutors.

Prosecutors spend less time deciding to prosecute minor offense than larger ones. In other words, the more serious the case, the more time is spent by the person deciding if it should move forward. It makes sense- the more ducks you have, the longer it takes to get them into a row.. The less "serious" the case, i.e. petty offenses such as unlicensed street vending, disorderly conduct, etc., the more likely the prosecutor will automatically hit the go button. There is not a lot of time spent on the who and why. This is not a reflection on the skills or intent of the prosecutor. After a certain amount of time "getting used" to working in the justice system it gets easy to reduce criminal acts to boxes on a form and people into their usual and expected roles.

Being found guilty, even of petty offenses creates huge problems in a person's life.

This is one of the best reasons to be proactive, as a legal professional, in contacting the prosecutor. It is important to personalize the defendant and provide context. The goal is to make it easy for the prosecutor to take a little extra time to make the choice to reduce charges or maybe not to prosecute at all.

Reference:

Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. (2010). Columbia Law Review, 110(7), 1655–1726.