Unchecked Power: Why Prosecutorial Discretion?

Prosecutorial discretion is quite the simple concept. Prosecutors, responsible for the process of bringing charges and filing cases against those believed to have committed crimes, have flexibility in who they choose to pursue. Most often, recommendations for charges come from police, from which prosecutors have the full power to choose which cases to proceed with, and which to drop.

In a vacuum, the premise of prosecutorial discretion seems absurd. The power to lay permanent, life-changing charges, or potentially obstruct proper justice from reaching the court lies exclusively in the hands of a single person. And what's more? The said single person is completely and absolutely invulnerable to any form of liability, meaning prosecutors legally cannot be sued for a decision to prosecute, even in cases where there is an outright abuse of power. In fact, in the USA, the Supreme Court has granted its protection to prosecutors, who knew fully well the illegitimacy of their conduct, that have used false testimonies and repressed evidence in trial. The bottom line is that prosecutors are very, very powerful people, with little checks on their potential to abuse their influence.

Of course, there is are reasons for the nature of prosecutorial discretion. The judicial system is not a well oiled, efficient industrial machine. It's closer to an old wooden wagon ready to fall apart at any moment. Like anything else, courts have limited resources, time, and energy to work with. To have a formal trial for every case recommended by police officers would be unrealistic, to say the least. Prosecutors refuse impossible cases, such as those without proper evidence. Sometimes they take bigger cases that deserve to be brought to justice more (while also refining their reputation in greater amounts). And after all, who else would decide which cases to prosecute, if not the one who will be in court, bringing justice to the case of the person they chose to pursue?

However, there it is no surprise that this power has not manifested perfect ways. As what should come as a surprise to no one at all, African Americans face disproportionate, targeted rates of prosecution. Fate Winslow, saw himself facing life without the possibility of parole for acting as an in-between for a deal involving $20 worth of marijuana. Winslow was an African American, whereas the dealer, who was not arrested at all, was white. Those of a lower economic position face the same discriminatory application of justice. 4.2 million drivers' licenses were revoked in California, as the charged were unable to pay court debts. Perhaps a success in the eyes of the prosecutor, but a loss of basic privileges, such as being to commute to work, attend church, or visit family on the road. On the flip side, the top brass of important state institutions rarely, if ever, see proper approval of charges against them. High ranking bankers behind the 2008 financial crisis, a disaster directly responsible for the poverty induced deaths of many, got away with either no charges at all, or a slap on the wrist in the form of fines. The interdependence of prosecutors on police to provide them with evidence, cooperation, and recommendations for charges in the first place means an inevitable reluctance in prosecuting even blatant instances of brutal bruality. Where prosecutors are determined through election, police unions are notorious for financing huge donations to prosecutor campaigns with the interest of block reforms that would see greater investigation into police misconduct.

Prosecutorial discretion is more than just a flawless system. And despite all of the aforementioned ways in which it contorts and warps into its nefarious forms, the root causes for its unsavoury manipulations come from deeper problems in the justice system. It is true that racial minorities see prosecution at significantly higher rates. At the same time, the police officers that provide prosecutors with recommendations of charges in the first place approach and arrest racial minorities in significantly greater amounts. The pool prosecutors are working with is already biased and racist. It is true that police officers and high-ranking government workers are rarely ever the target of prosecutors. However, there is no doubt that prosecutors cannot do their job without the assistance and good will of the police. There is even less doubt that high-ranking government workers are incredibly difficult to successfuly bring to justice. In some particularly egregious cases, the law allows for those who provide information necessary for exposing important government officials to be criminalized and prosecuted themselves.

Obviously, I'm in no position to offer perspective on how to approach reforming the problems of prosecutorial discretion. These are problems that the smartest minds of the country have yet to resolve through our most sophisticated political institutions. No matter how reform happens, though, it must do more than attack the surface level problem of prosecutors having power. There has to be an attack on the heart of the issue in the culture of modern justice that incentivizes prosecutors to abuse power in the very first place: a culture characterized by racialized judgements and rewarding those that come from wealth and power.