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 decision-making power creates an opportunity for a skilled criminal defense attorney to influence the outcome. By highlighting mitigating factors, exposing legal flaws, or advocating for leniency, your lawyer can steer the prosecutor toward a more favorable resolution.
How Prosecutorial Discretion Shapes Criminal Cases in Philadelphia
Prosecutors can apply discretion on a case-by-case basis or implement office-wide policies that affect entire categories of charges. This flexibility is sometimes controversial, especially in Philadelphia, where several examples show how dramatically discretion can shape outcomes.
Case Example: Delayed Probation Violation Proceedings
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.
Office-Wide Policy: Limiting Marijuana DUI 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.
Broader Impacts: Low-Level Offenses in Baltimore
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 Pros and Cons 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 Smart Prosecutors Rely on Discretion
Good prosecutors understand the limits of the system—and the burden they bear. Here’s why they often choose to exercise discretion:
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Weak evidence: If the prosecution can’t meet the “beyond a reasonable doubt” standard, they may reduce or drop charges.
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System efficiency: Courts, lawyers, and police have limited time and resources. Without discretion and plea deals, the system would become overwhelmed.
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Witness cooperation: Prosecutors often offer reduced sentences in exchange for testimony, helping secure convictions in more serious cases.
How Your Attorney Can Influence 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 defense lawyer who understands the strengths and weaknesses of your case can present a compelling argument for leniency. The stronger your bargaining position, the better the outcome—whether it’s reduced charges, a diversion program, or avoiding jail altogether.
Prosecutors don’t offer deals out of kindness. They need a reason to justify leniency, and your attorney must give them one.
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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