A friend of Law Talkin’ Guy requested a post on “prosecutorial discretion,” and with upcoming elections it is a fine topic to consider. In our legal system, the prosecution chooses whether or not to bring charges, and what charges to bring. Why this system? Consider the nature of law. Law is a tool, the purpose of which is to provide some structure to society.  Laws are human-made and imperfect, and while the rule of law is important it is not the end-all. What do we want from law enforcement? People often say that they want all laws to be followed and enforced, but most people do not actually desire this. What is desired is a general sense of law and order in society, so that people can go about their day in relative safety, free to live out their American dream. Full enforcement of all laws would mean that every car going a mile over the speed limit receive a speeding ticket; every tax return that is not completely factual will face an audit and penalties; every meter that goes one second over its time would trigger a fine; every open container of alcohol would be poured out. In reality it would force the majority of the population to be branded a criminal, with all the burdens accompanying such a label. Is that an exaggeration? Consider this. Per a Forbes article from last year, “there have been 88,899 federal rules and regulations since 1995 through December 2016, as the chart shows; but “only” 4,312 laws.” I am sure we’re all confident that we’re following all 88,899+ rules, right?  (Even for those who would welcome such a system, it is not close to feasible to administer. The criminal justice system does not have anywhere near the resources needed to undertake such a task, thankfully).

As it is not possible to police all crime, choices must be made, and our system places much of the power to make those choices in the hands of prosecutors.  This has long been part of the American legal system, meaning even when it was possible to know all the laws, not every law was enforced every time.  At its best, discretion is a built-in mechanism to directly address an injustice. At its worst, discretion is ripe for abuse by unethical prosecutors, and an excessive number of laws heightens the stakes as discriminatory prosecution could masquerade as good faith discretion. However, the lack of any discretion results in zero tolerance policies which lead to absurd injustices, and prosecutors are subject to a few layers of oversight.  Besides, while some crimes are straightforward with concrete evidence, often a prosecutor must make a judgment call as to whether the evidence the police has is sufficient to secure a conviction under the law.  This necessarily varies from case to case and the sheer volume of cases means that individual (assistant) district attorneys must often make the decision and then move on to the next case.

One method to address bad prosecutors is at the ballot box. At the state level, the chief prosecutor is the district attorney, who is usually elected at the county level. The district attorney supervises all assistant district attorneys, who are the prosecutors most commonly seen in criminal court. District attorney elections are both a safeguard against bad actors and a direct democracy method for an organized community (a county) to express a preference on law enforcement priorities. Given the close working relationship between prosecutors and local police, these elections can significantly impact daily life in a community.

The judiciary serves as a further check on prosecutorial discretion. A trial judge is in a unique position to hear all evidence and determine what actually happened, and thus what punishment is warranted and consistent with others who have committed similar offenses.  Unlike with district attorneys, however, I do not endorse oversight via judicial elections, for I agree with Charles Pierce that electing judges is the second worst idea in American politics. Electing prosecutors is not the same as electing judges. Our system is designed around prosecutorial discretion, which often involves making hard choices. This is inevitably political, and thus elections makes sense. Judges, however, are not supposed to be swayed by the winds of democracy, and do not make the same sort of tough political choices as district attorneys.  The rules must be the same for all, and we must never forget that prosecutors carry with them the full weight of the government, an obvious imbalance of power compared to defendants that require judges to maintain fairness. Elections give trial judges all the wrong incentives, for even if a community wants a “get tough” approach, that is best handled through the laws themselves and direct policing. Electing both prosecutors and judges is a recipe for mob rule justice.

There’s no way to determine the exact right amount of laws and law enforcement. Society is dynamic, and communities vary. I can safely reject the extremes, as a lawless, chaotic society  is just as dangerous as a tyrannical, fascist society. We find ourselves then in the middle, trying to establish enough order for safety with enough freedom to live. Laws are necessary for society, but they alone cannot save us. Our vast system of laws and regulations gives executives, from the President to the district attorney, broad power to interpret and enforce laws. Whether this is good or bad is irrelevant as it is the system, and it is incumbent on us to hold law enforcement accountable and promote good governance from within. For a sense of what makes a good prosecutor, what we should look for in our elected district attorneys, I will leave you with the inspiring words of Justice Jackson, delivered when he was attorney general to new federal prosecutors.



12 thoughts on “A Prosecutor’s Discretion

    1. Prosecutors have that discretion, which is why electing good district attorneys is important. Any offenses that prosecutors would bring would be criminal in nature; civil harms are handled via civil lawsuits.

      Liked by 1 person

      1. So trespassing using chemicals as a weapon on my property, the prosecutor refused to file a complaint on my behalf, clear conflict of interest. But he also advised me that trespassing is a criminal offense and I had no authority to file a civil complaint alleging trespassing.


      2. by the way this man has held the position of Lee County attorney for over 30 years, never had an opponent in an election. That is sad because we would have elected Elmer Fudd had he ran against this crook. He told me straight up, “he would decide who gets prosecuted in his County. Then filed criminal charges against me based on fabricated laws. How much money the City of Montrose and Lee County wasted trying to make me the bad guy on behalf of a psychopath, Mark Conlee.


  1. I can’t comment on individual cases, as I’m not a criminal attorney and cannot provide legal advice through this forum, which is merely for educational purposes. Beyond that, your situation is going to be governed by the laws of your state.


    1. Understood, I can’t find an attorney. The laws of my state were violated by the local government. My only position has always been that of a victim. It does not take an attorney to know that it is not reasonable for anyone to do anything to another persons property. This guy was protected by the locals. In truth he tried to kill me with the chemicals. I unfortunately chose to flee. When I did have the option to take up arms. I am so pissed off I don’t know what I am going to do. I will continue trying to get the government to represent and protect my rights.


  2. I wish you the best of luck. There are many legal aid organizations offering services, sometimes including referrals to pro bono attorneys. You can also try appealing to a higher level of local/state government.

    Liked by 1 person

    1. I have tried, but every contact has stated they simply don’t have time to dedicate to such a complex and unprecedented case. Appeal? Don’t you first have to have a trial in a State? I am fighting tooth to bone and have been since my eyesight has been restored. I had wishful thinking that one of the named perps would file a defamation complaint against me but they had no concern about protecting their honor or dignity. They are still holding office in some cases. I am working with FBI public corruption. I don’t know why a private attorney hasn’t jumped on this case, it would be a high paying judgement. The only thing I can figure is because the acts against me are criminal. IDK but I am completely disgusted with the government. I can get this into court. But then I would be committing a criminal offense also, that seems unproductive. Nobody wants this case. I want compensated for the physical damages, taking of my livelihood, taking of my life, liberty and pursuit of happiness. This was attempted murder, I would be dead if I had not fled. seriously, WTH is wrong with these people? This neighbor is a full blown psychopath the evidence supports every trait. The local officials are afraid of him. The police chief told me that he didn’t want to make him mad. Give me the badge then I would have taken care of the situation.


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