Prosecutors have the power of discretion to decide whether to bring allegations to court and what charges to file. This power is limited by civil rights laws, and prosecutors must document their decision-making process. Plea bargaining is also subject to prosecutorial discretion. Some legal systems do not allow for prosecutorial discretion.
Prosecution discretion is the ability to decide whether allegations should be brought to court and to determine the nature of those allegations. This power can be seen in the judicial system in the United States, where prosecutors are very powerful due to prosecutorial discretion, and some other legal systems have similar frameworks in place. There are some limitations to this power, as prosecutors cannot violate civil rights by vindictively or selectively bringing charges, and they can be challenged over their decisions about when, where and how to bring charges.
In the adversarial justice system in the United States, when citizens or law enforcement agencies file criminal complaints with a prosecutor, the attorney reviews the information to decide whether there is enough material to file a case and to make a decision about the types of allegations involved. The prosecutor decides whether to take the case to court and makes a choice on the type of charges to file. The input of the people involved may be considered, but ultimately it is the prosecutor’s decision.
The concept of prosecution discretion also applies to plea bargaining. A person accused of a crime may be offered the opportunity to plead guilty for a reduced charge or sentence. The prosecutor decides whether this should be allowed in a given case and makes a decision on which settlement to offer the defendant. Plea deals can be useful for moving cases through a court quickly, and they can also be used as a tool to address perceptions of unfairness in mandatory sentencing by allowing people to plead a crime with a harsh mandatory sentence.
In exercising prosecutorial discretion, people must be careful to avoid violating civil rights. If a prosecutor files a complaint in one case and not in a virtually identical situation, this can attract attention and can lead to a lawsuit. Issues such as the defendant’s race, class, or gender can all be factors that impact civil rights issues; one might argue, for example, that a prosecutor was demonstrating bias in choosing to pursue charges against a particular person. Prosecutors are careful to document the decision-making process in order to avoid legal challenges.
In other jurisdictions, the discretion of the public prosecutor is not present. All criminal cases may need to be taken to court to be heard by judges and juries, regardless of the strength of the allegations and the situation. In these cases, judges may not be bound by issues such as mandatory sentencing and may enjoy greater leniency when hearing cases and making sentencing decisions.
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