7 Critical Decision Points for a Prosecutor
Prosecutors hold enormous influence at every stage of the criminal process. There are seven critical decision points in the criminal justice process where prosecutor's exercise of discretion can make a difference on the defendant's life.
Charging
The charging decision affects all subsequent decisions in a person's case, including the amount of bail, the plea deal offered, and the length and type of ultimate sentence. This decision can also trigger immigration consequences like deportation for some
Each office has their own guidelines or policies on how prosecutors should make their decisions in charging. Prosecutors should be reviewing their policies to identify disparities in race and gender.
Example of choices a prosecutor can make:
Declining to prosecute offenses often associated with poverty
Declining to prosecute marijuana possession
Bail
Money bail creates a system where the rich can buy their freedom, while the poor remain in jail. Prosecutors don't set bail. However, their recommendations are a critical factor in the judges' decisions.
Example of choices a prosecutor can make:
Recommending pretrial release on lower-level cases
Why bail is unfair for ​the poor
How Coronavrius is making those who can't afford bail wait even longer in jail (TheMarshallProject)
Diversion
Diversion programs can provide an effective way for defendants to receive services and treatment related to underlying issues that may have led to their alleged criminal behavior. Diversion program puts the focus back on rehabilitation, rather than retribution.
Example of choices a prosecutor can make:
Connecting individuals with social services rather than pursuing traditional prosecution
Recommend diversion program completion instead of jail in sentencing
Discovery
Evidence and its availability to the defense is largely controlled by the prosecutor.
Providing all evidence as early as possible in a case can subsequently affect outcome of the case.
Case Processing
Criminal cases may take months, even years to reach resolution. Innocent defendants may be forced to wait for months and years in jail until the case is resolved.
Resolving cases in a timely manner can help to ensure defendants' Sixth Amendment rights to speedy trial.
Kalief Browder was arrested at the age of 16 for alleged theft of a backpack. He spent 3 years imprisoned at Rikers Island waiting for trial. Charges against him were dropped. However, he suffered severe PTSD as a result of the brutal conditions of his imprisonment, leading to his suicide in 2015.
Pleas
Prosecutors has the most control over the the plea bargaining process. The prosecutor can control the outcome of the case through this process.
Prosecutor can negotiate the charges offered, the sentence length, and the type of sentence.
Prosecutor can also place conditions of community supervision in the terms of plea.
​​
Why Innocent People Plead Guilty
Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion
Sentencing
If a person is convicted of the alleged crime, the prosecutor's sentence recommendation can play a critical role in the sentencing court's decision. State law usually allows for great amount of discretion in the sentencing range.
Highlighting individual and system costs of incarceration and reducing probation sentences.
Recommend terms in sentence that connects defendant to social services and treatment programs.
Trends in US corrections (SentencingProejct)​
​