The Weapon of Discretion

I’ve said it before: the real power of the District Attorney’s office is prosecutorial discretion. This power comes with no oversight. It gives the State absolute authority in its charging decisions, and as such, can cause the greatest harm.

Consider, the State, alone, has the power to determine:

· Whether someone who has been arrested should be formally charged with a crime;

· How the accused should be charged (ie, felony? misdemeanor? death penalty?);

· Whether to make a plea offer;

· What sort of plea offer should be made;

· Whether prosecution should continue (or be dismissed)

In an ideal world, the elected District Attorney makes these decisions wisely, and allows his assisting prosecutors to as well. But what if discretion is used as a weapon, rather than a responsibility?

Here's a true-life example from my practice:

Stewart (an alias used for this story) is a nineteen year-old with a drug problem and a lead foot. Stewart was recently arrested for several outstanding traffic tickets which, unanswered, became warrants. During his arrest, he is handcuffed and searched. The search reveals nothing illegal. After his arrest, he is transported to the jail. At the jail, Stewart (still in handcuffs) is searched again. This second search leads to recovery of a small amount of cocaine his shirt pocket - overlooked during the original search.

When confronted, Stewart freely admits that it is his cocaine. In turn, the police charge him with Possession of a Controlled Substance in a Correctional Facility (a 3rd Degree Felony with a punishment range of 2-10 years incarceration, or 10 years probation).

Had the officer conducted a proper search on the street, Stewart would have been charged with simple Possession of a Controlled Substance (a State Jail Felony with a punishment range of 6 months – 2 years incarceration, or 5 years probation).

Stewart has no criminal history. He wants to be placed on probation. However, in his community, he is surrounded by close friends and family members with extensive criminal backgrounds. One of the terms and conditions of probation will be to stay away from people, and places, of harmful character. This will be hard to do, considering his environment.

Stewart wants to keep this case off of his permanent record, if possible. Yet, he is pessimistic about succeeding on a long period of probation due to the overwhelming influences in his life and the long-term financial costs of probation. With this in mind, the prosecutor provides the following choice:

Option 1 - If Stewart pleads guilty to the 3rd degree offense, the State will offer 10 years of deferred probation. Deferred probation is not considered a conviction, if successfully completed. Thus, the arrest could eventually be sealed from Stewart's record. However, should he fail his probation, Stewart will be convicted and sentenced to 10 years incarceration.

Option 2 - The State will reduce the charge from a 3rd degree felony to the proper charge of simple Possession. However, if they are forced to correct the mistake they made in over-charging Stewart, they will only offer 3 years of regular probation. Regular probation is a conviction. Thus, his record could not be sealed later. Pursuant to the terms of this option, Stewart will be sentenced to 18 months incarceration should he fail his probation.

A Hard Decision

Stewart admits that he is guilty of possession. Nevertheless, he never intended to take an illegal substance into the jail. Had the arresting officer searched him properly, or asked whether he had any illegal substances, Stewart would never have been charged for the greater offense. Stewart believes that it is unjust for the State to intentionally prosecute him for an offense he did not commit. Yet, he has reservations about being on deferred probation for 10 years, as offered.

The prosecution refuses to offer deferred probation on the correct charge. Because deferred probation does not include a finding of guilt, it can only be attained through the Judge, after a plea. Once a jury (or judge) declares guilt, the law dictates that deferred probation cannot be given. As prosecutorial discretion belongs to the District Attorney alone, the Judge does not have the ability to reduce the charge and offer deferred probation. Stewart could elect to have a trial, requiring the State to prove his guilt on the 3rd degree charge. However, the jury would still be entitled to find Stewart guilty of the lesser-included charge of Possession, even if they agreed that he did not intend to transport the cocaine into the jail. With that finding of guilt, deferred probation would no longer be an option.

Under the pressure of these two options, Stewart elects regular probation for simple Possession, with a felony conviction.

Is this a Just result?

Some would argue that being overcharged by the District Attorney is the risk Stewart took when he broke the law.

Some would say that Stewart should be prosecuted for Possession, but offered deferred probation.

Some would say that the right thing for the State to do would be to charge Stewart for Possession alone, but make no offer - forcing him to throw himself on the mercy of the Judge in order to receive deferred probation.

What do you think? A prosecutor is tasked with making the right decisions, at all times, for the right reasons. Is this an appropriate use of prosecutorial discretion?