Discretion is such an ugly word. It sounds officious, vague and un-engaging. I prefer to call it choice. Because that’s what prosecutors have: the power to choose whether to prosecute someone or not. It is that power to choose that is a manifestation of the great power that prosecutors wield: the power to deprive someone of their life, their liberty, their reputation.

This inherent ability has been discussed elsewhere lately, in Scott’s post where he gives two examples of poor choices made by prosecutors and in this NPR interview with former state judiciary committee co-chair Mike Lawlor and today, in this piece in the NJ Star Ledger.

The Star-Ledger piece talks about prosecutorial discretion choice in the context of three recent high-profile criminal justice stories: Dominique Strauss-Kahn, Casey Anthony and The Rocket and how all these cases seem to indicate the quest for justice has buckled under the pressure of the 24-hour sensationalist news cycle and the pressure to convict – when that same news media all but assumes that with every accusation comes a conviction – has subverted the true function of the prosecutor. I’ve written plenty about the impact and responsibility of the media in sensationalizing the criminal justice system, so I won’t go there in this post. This post is, I think, about the role of the prosecutor and the power of choice that they possess.

In penning this lament in the Star-Ledger, John Farmer, dean of Rutgers Law School (and a former prosecutor) relies heavily on the words of former Attorney General (and later Supreme Court justice) Robert Jackson uttered at a meeting of prosecutors, some of which I reproduce here:

“The prosecutor,” he reminded them, “has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”

…

“With the law books filled with a great assortment of crimes,” the attorney general said, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. … It is in this realm … that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group … or being personally obnoxious to or in the way of the prosecutor himself.”

That second paragraph, uttered some 70 years ago, is so telling about some of the dangers of forgetting the ramifications and burdens of the power that is at their disposal.

It seems that over time, the definition of the prosecutorial function has narrowed: from a broader concept of a duty to ensure that justice is done, to ensuring that criminals are locked away. While the latter may be part of the prosecutorial function, it is not all of it. The prosecuting authority has a responsibility to every citizen of the state or country to maintain fair and proper administration of justice: and everyone includes the defendant accused of a crime.

All too often, it seems these days, prosecutors seem to fall in step with the Nancy Graces of the world: that it is enough to accuse someone of a crime for them to be actually guilty of it. (Obviously I am not alleging that all prosecutors are like this – there are, to be sure, some, if not a sizeable chunk, who do take their duties seriously – but we’d be lying to ourselves if we believed that there weren’t any who didn’t view their job as merely securing convictions.)

The NPR interview I linked to above is primarily about the effect that budget cuts will have on public defenders’ ability to fulfill their constitutional obligations, but in it, Lawlor makes an interesting observation that the cuts will also force prosecutors to re-evaluate their priorities and to exercise their discretion even more so than they have done in the past: what is worth prosecuting? who is worth sending to jail? With limited resources, there will have to be a re-focusing of energies on the more egregious offenses and offenders.

Why doesn’t this hold true always? Why must this become an issue only in times of constrained resources? Shouldn’t we be constantly monitoring our prosecutors to ensure that they aren’t pursuing disproportionate punishment? That they aren’t painting all defendants with the same brush? That they are willing and able to recognize the nuances of each individual and each case? Isn’t that the best way to ensure justice?

And this responsibility is even graver in this age, where news travels instantaneously and nothing is ever erased and that accusation is always searchable and articles on the internet are never updated to reflect the resolution of charges and where 17 year olds are labeled predators for life for having sex with their 15 year old girlfriends.

Are prosecutors just automatons, mindlessly pushing for conviction and incarceration for all those who are unfortunate enough – rightly or wrongly – to be ensnared in the insidious and incestuous machinery that the criminal justice system has become?

For this, I return to Jackson:

Above all, Jackson emphasized, the power prosecutors have over life, liberty and reputation requires that their actions be animated by “a spirit of fair play and decency.” The prosecutor’s oath, after all, is not to be zealous in seeking convictions, but to be fair in seeking justice: “Although the government technically loses its case,” Jackson reminded the U.S. attorneys, “it has won if justice has been done.”

…

“Your positions are of such independence and importance that while you are being diligent, strict and vigorous in law enforcement, you can also afford to be just. … Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.”

With great power comes great responsibility and the responsible thing to do is to choose wisely.

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