Why prosecutorial discretion must be less discreet for criminal justice

It might seem entirely reasonable to expect that prosecutors will always prosecute an offense. After all, it is right there in the name. However, in becoming the latest legislative body to draw this faulty conclusion and consider stripping away the key ability of prosecutors to decline certain prosecutions, the Indiana senate has badly misjudged prosecutorial discretion and what should be done to address this issue.

Although the term “prosecutorial discretion” is familiar to most people, the extent to which it influences the direction and outcomes of each case may not be. Does an offense deserve criminal charges, and if so which charges? Should an individual receive bail or await trial in a jail cell? Is that trial even necessary, or will a plea deal suffice? Prosecutorial discretion lies at the heart of the answer to these questions and more.

Yet legislators are in an uproar because some prosecutors have started using their discretion to presumptively dismiss or divert all cases involving certain low level offenses. In Indiana, this includes the Marion County prosecutor declining to prosecute cases involving under an ounce of marijuana. Likely ignorant of the fact that prosecutors routinely get rid of these cases without a conviction anyway, legislators have taken this replacement of individual decisions with an office wide policy as an affront. The result is a push to let no law go unprosecuted.

That is of course impractical. There are simply too many offenses and possible offenders to actually prosecute them all. This means that some prosecutorial discretion is inevitable. There is also not enough time in the day to write laws dictating how prosecutors should make every decision in every case they come across. Nor would their constituents want them to. One of the primary purposes of that discretion is to add an element of humanity to the application of the law. It allows prosecutors to choose justice even where it may conflict with the letter of the law.

General policies favoring alternatives to prosecution extend the benefits of this discretion universally in those cases where the consequences of a conviction are counterproductive to the aims of justice. Such policies also recognize that scarce prosecutorial resources are generally better spent pursuing much more serious conduct. Ignoring marijuana possession to focus on violent crime should not be a controversial call.

But just because the legislature is attempting to solve a fictional problem does not mean very real ones do not exist. Prosecutorial discretion suffers from unaccountability and lack of transparency that could undermine its potential for good. It operates as a kind of black box that only prosecutors can see inside as facts go in, decisions come out, and explanations are rarely forthcoming. Policies are seldom public, and prosecutors do not usually disclose why they reached an outcome in any given case.

This immunity from scrutiny becomes protection against any challenge. After all, a bad outcome alone is standard fare in our justice system. Without any information on why it was reached, who is to say it was not the natural and normal result? But attempting to eliminate prosecutorial discretion does not address any of these issues. With more than 13 million misdemeanor charges alone filed every year in the country, and annual prosecutorial caseloads exceeding a thousand in some places, the evidence suggests that discretion is probably not used enough.

Instead, legislators should work to verify that prosecutors exercise their discretion fairly. They can do this by pushing prosecutors to release relevant policies to the public, explain individual decisions, and collect and publish data on these decisions. Trying to remove discretion from prosecution is sheer folly. But as a necessary force behind many of the decisions that occur in criminal justice, it should be brought further into the light. Only then will the public be able to see that it is correcting imbalances and injustices rather than continuing them.

Lars Trautman is a senior fellow of criminal justice and civil liberties policy at the R Street Institute who served as a former assistant district attorney.