Prosecutorial discretion is the ability to decide if charges should be brought in court and to determine the nature of those charges. This power can be seen in the court system in the United States, where prosecutors are very powerful as a result of prosecutorial discretion, and some other legal systems have similar frameworks in place. There are some limitations on this power, as prosecutors may not violate civil rights by bringing charges vindictively or selectively, and they can be challenged on their decisions about when, where, and how to bring charges.
Under the adversarial legal system in the United States, when citizens or law enforcement officers bring criminal complaints to a prosecutor, the attorney reviews the information to decide if enough material is present to make a case and to make a decision about the kinds of charges involved. The prosecutor decides whether to take the case to court and makes a choice about the kinds of charges to be filed. Input from people involved may be considered, but ultimately, it is the prosecutor's decision.
The concept of prosecutorial discretion also applies to plea bargaining. A person charged with an offense may be offered the option of pleading guilty for a reduced charge or sentence. The prosecutor decides if this should be permitted in a given case and makes a decision about the deal to offer the defendant. Plea bargains can be useful for moving cases through a court quickly and can also be used as a tool for addressing perceptions of unfairness in mandatory sentencing, by allowing people to plead down from a crime with a harsh mandatory sentence.
When exercising prosecutorial discretion, people must be careful to avoid violating civil rights. If a prosecutor presses charges in one case and doesn't in a virtually identical situation, this can attract scrutiny and may result in a lawsuit. Issues like the race, class, or gender of the accused can all factor into suits about civil rights issues; someone may argue, for example, that a prosecutor was demonstrating bias in choosing to pursue charges against a given person. Prosecutors are careful to document the process of decision-making in order to avoid legal challenges.
In other legal systems, prosecutorial discretion is not present. All criminal cases may need to be brought to court for hearing by judges and juries, regardless of the strength of the charges and the situation. In these cases, judges may not be bound by issues like mandatory sentencing, and can enjoy more leniency when hearing cases and making decisions about sentencing.
