Discretion means making a choice or judgment. When a prosecutor has discretion in your criminal case, they can choose how to prosecute a case or not at all.

This room for decision-making is an opening for a criminal defense attorney to help you. They can highlight factors in your favor to the prosecution, point out mistakes that make pursuing a conviction unwise, and try to influence decisions that favor your situation.

Prosecutorial Discretion’s Impact In Philadelphia

A prosecutor’s discretion can be applied subtly based on the circumstances or directly affect how entire classes of some criminal charges are pursued. This is a contentious issue in Philadelphia, so it may help to see some examples in practice.

In a recent case of an alleged probation violation – possessing firearms and drugs – the Philadelphia District Attorney’s Office chose not to end a man’s probation. They wanted to wait until the outcome of the criminal proceedings on the new charges.

The judge in the probation violation case couldn’t accept that position, chose to appoint a special prosecutor, and wanted the proceedings to continue. Fortunately, the state Supreme Court ruled the prosecutor had the discretion to delay this process while the judge had no authority to appoint his own prosecutor.

This discretion is on a small scale, but it can also be jurisdiction-wide, impacting thousands of cases:

  • Philadelphia District Attorney Larry Krasner announced in 2019 his office would limit marijuana-related driving under the influence cases. Under state law, any amount of marijuana in your system – even if it’s too small to affect your driving – could be a basis for a DUI arrest.

    While testifying to a state legislature Joint Senate and House policy committee, Krasner stated cases would be filed if there’s evidence of enough cannabis in the driver’s system that’s scientifically been shown to impact a person’s driving.

  • Baltimore City State’s Attorney Marilyn Mosby announced in March 2021 they won’t prosecute defendants for prostitution, drug possession, and other low-level crimes.

    This came after a year-long experiment in not prosecuting minor offenses to reduce the spread of COVID-19 in jails. These actions were handled like public health issues, not crimes. Baltimore’s jail population was reduced by 18% during this time, violent crime was down 20%, and property crimes have been cut by 36%.

The Good & Bad of Prosecutorial Discretion

On an individual level, plea agreements and alternative sentencing are more attainable because of the prosecutor’s flexibility. There can be an agreement where a higher charge is dropped, but the defendant agrees to plead guilty to a lesser one. The charge could also stay the same, but the prosecutor could recommend a specific sentence – possibly a diversion or treatment program that addresses the underlying issue.

There are limits and possible problems to prosecutorial discretion. The prosecutor could do favors for friends or powerful people. If the prosecutor isn’t logical or reasonable, a defense attorney wouldn’t know if trying to reach a plea agreement would be a waste of time or not. A prosecutor could also unfairly charge people, force individuals into a trial, or pursue unnecessarily harsh punishments.

Why Good Prosecutors Use Their Discretion

A sensible prosecutor will use discretion because:

  • The prosecution has the burden of proving guilt beyond a reasonable doubt. If there’s not enough evidence, the case may be withdrawn, or other charges could be brought.
  • It can make the judicial system more efficient. The court system, defendants, police, and attorneys involved only have so much time and energy. Without plea agreements or considering outside factors, the judicial system would grind to a stop.
  • Prosecutors can offer incentives to encourage people to cooperate as a witness. Reduced sentences or withdrawn charges in exchange for testimony could result in one defendant going to prison and another going free

How to Get Beneficial Prosecutorial Decisions

According to the US Department of Justice, about 90 to 95% of federal and state criminal cases are resolved through plea agreements. This wouldn’t happen without prosecutorial discretion. That makes the prosecutor another decision-maker, like the judge and jury a criminal defense attorney will focus on.

A criminal defense attorney plays many roles. A critical one can mean a positive outcome, like not going to prison, is effectively negotiating. How good the plea bargain usually depends on the strength of the defense and the facts of the case. The better the client’s bargaining position, the more likely good things will happen.

Your defense lawyer should also know how to emphasize the strong points of your case and handle its weak points. After all, prosecutors don’t usually agree to plea bargains because they’re nice. They’re negotiating for their side, the prosecutor’s office, and they need to justify that the agreement is a good deal for them too.

Take the Next Step. Contact Michael Fienman

Attorney Michael Fienman can protect your rights, your future, and your family if you’re being investigated or have been criminally charged. He will fight for you through the criminal justice process, including showing you deserve the benefit of a prosecutor’s discretion in handling your case.

If you want to learn more or need representation in a criminal matter, call Fienman Defense at (215) 839-9529 or fill out our contact form today.

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