Prosecutors, Law Professors Discuss Impact of Prosecutorial Discretion

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By Elina Sadeghian and Michael McCutcheon

NEW YORK CITY, NY –  A discussion program set up by The Institute for Innovation in Prosecution (IIP), at John Jay College of Criminal Justice recently, brought together various panelists to speak on prosecutorial discretion within the legal system and what its future will look like.

The issue of prosecutorial discretion has long been a critical component in criminal justice, noted panelists, who note both police officers and judges have a lot of discretion. However, the decisions made by prosecutors carry significant weight, the speakers agreed.

The discussion was facilitated by Rachel Marshall, Director of the Institute for Innovation in Prosecution at John Jay College.

Angela Davis, a Professor at the American University College of Law, sets the stage by explaining, “They [prosecutors] hold the power to decide who to charge and what charges to bring, as well as when to offer plea bargains. This discretion can create disparities, with prosecutors using it to engage in racial profiling or to provide leniency to some defendants while being harsh to others.”

Prof. Davis believes prosecutorial discretion can be used to create disparities and harm if not used correctly and that it is essential for the public to pay attention to prosecutors’ decisions.

“By using prosecutorial discretion in a fair and just manner, the harm and disparities of the criminal justice system can be undone, leading to a better system for all,” said Davis.

According to panelist David Sklansky, a professor at Stanford Law School, when it comes to making decisions, officials have two options: applying a rule or having a loose position.

“Lawyers and lawmakers feel the pressure of rules and standards. Rules can be overly rigid; standards can be applied in ways that are arbitrary and discriminatory,” said Prof. Sklansky.

He added, “Prosecutors can make a decision on a case-by-case basis deciding whether a particular statute should be charged or mandatory minimum can be sought or they can try to have a rule that can be applied across the rule where it leaves less room for discrimination.”

According to Sklansky, in recent times, there has been a political pushback against prosecutors who implement policies based on clear rules, as some argue they push for a lenient approach to criminal justice or greater scrutiny of police and prosecutor misconduct, which Professor Davis later agreed with.

Prosecutors must also consider the political angle when making these decisions, as they may benefit from presenting decisions as standards that are applied on a case-by-case basis, he said, concluding, “Rules are transparent, and it’s clear what you’re doing; the application of standards can be hard to monitor because it’s hard to know its pattern.”

Panelist Mark Dupree, the district attorney at Wyandotte County, Kansas, said he believes discretion is supposed to be used for justice and for making common-sense decisions that are in the best interest of the individual.

“When you deal with each case, you deal with actual lives that will be affected. Most of the case that comes through prosecute officers are not high-level crimes, it’s the cases that you have to make a determination hence through your discretion that’s if this is something that we should charge or if it is divertible to not go through the whole process and not put a record on a juvenile or some individual with a job and a family that this one low-level crime that affects all of that,” explained Dupree.

The use of discretion allows prosecutors to consider the whole picture and make decisions that are in the best interest of the individual, Dupree added, noting, “Discretion is utilized to make common sense decisions on what is in the best interest of the individual and considering whether involvement in the criminal justice system is necessary or not.”

Gorge Gascón, District Attorney of Los Angeles County, held slightly different views regarding using “common sense” to deal with cases at hand, especially in large legal entities such as the one in which he works.

“You hope that common sense will prevail, but the problem is that common sense is contextual to your reality,” said Gascón.

The former police officer, and DA in San Francisco, added, “In smaller offices, prosecutors have more significant influence over the direction of their work, but larger offices require clear parameters to ensure that discretion is exercised within reasonable limits…in larger offices, it is much more challenging to regulate each case being under the guidelines provided by the firm.”

Prof. Sklansky spoke about how to improve prosecutorial transparency, arguing rather than a progressive prosecutor focusing only on the issues in front of them, it would be best to look towards the future and create “systems of accountability” that will guarantee transparency even if a less progressive or transparent prosecutor were to take office later.

In regard to keeping prosecutorial discretion in check, Sklansky also stated those responsibilities would naturally fall onto defense attorneys and public defenders in particular.

Though, he noted that due to the underfunding of public defenders, prosecutors have much more power than they should, and stated simply that adequate funding into the sector of public defenders would do a lot to keep prosecutors in check.

On the primary barrier to prosecutorial reform, Prof. Davis maintains legislators are purposely targeting the more progressive prosecutors.

Sklansky added progressive prosecutors should work to build a common consensus on criminal justice in their communities since views on the criminal justice system and corresponding reforms are “increasingly polarizing and increasingly affected by the polarization of our politics.” Gascón agreed.

In talking about the recent legislative attacks on prosecutorial discretion, DA Dupree argued all prosecutors should be able to stand together against such legislation, stating, “if they take away some of our prosecutors’ discretion, ultimately, it’s going to continue to grow and deteriorate discretion across the board,” suggesting all prosecutors, not just the progressive ones being targeted, would be impacted by legislation.

DA Dupree concluded that “the entire purpose of the prosecutor’s job is to focus on doing justice for everyone, and it is that same discretion that we have to utilize, that same power that we have to utilize, to make sure that every person in our community feels that justice is being done, and so how is discretion affecting everyone? Because it affects the citizens that we serve who rely on that discretion, who rely on that authority, for us to do what they voted us in to do.”

About The Author

Michael is a senior at CSU Long Beach majoring in Criminology and Criminal Justice. After graduating with a BS, Michael plans to attend grad school and receive his Masters with a thesis on interrogation techniques.

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