Prosecutorial Discretion: The Difficulty and Necessity of Public Inquiry

Prosecutors’ discretionary decisions have enormous impact on individuals and communities. Often, prosecutors exercise their vast power and discretion in questionable ways. This Article argues that, to encourage prosecutors to use their power wisely and not abusively, there is a need for more informed public discussion of prosecutorial discretion, particularly with regard to prosecutors’ discretionary decisions about whether to bring criminal charges and which charges to bring. But the Article also highlights two reasons why informed public discussion is difficult—first, because public and professional expectations about how prosecutors should use their power are vague; and, second, because, particularly in individual cases, it is hard to know what decision-making process the prosecutor employed and what considerations entered into the prosecutor’s decision. Despite these challenges, the public can and should engage in more rigorous scrutiny of prosecutors’ work. By way of example, the Article identifies a questionable practice that prosecutors have not adequately justified. Some prosecutors work with private debt collection agencies to threaten to prosecute low-income debtors whose checks bounced, demanding payment of the amounts owed plus additional fees, from which prosecutors’ offices receive a cut. This practice appears abusive both because some innocent debtors are wrongly threatened with prosecution and because, for others, a threatened prosecution is disproportionately harsh. Because prosecutors have not been subject to serious, informed public questioning about potentially abusive practices such as this one, they have not publicly justified the practice. Informed public inquiry and discourse will both encourage prosecutors to use their power wisely and promote accountability when prosecutors use their power abusively