By: Jenna Davidson
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
The extent of the power and authority that prosecutors have over filing charges and subjecting citizens to the criminal justice system is far reaching. Prosecutors are the only officials that have the legal authority to file charges that will be prosecuted. With such a great power comes a great concern about the perceived inadequacies and injustice resulting from convictions.
Prosecutors have the power to accept or reject cases, choose what charges to file, and divert individuals to programs such as substance abuse treatment or anger management classes. The dismissal of cases is also at their discretion when they find reasons to discontinue or abandon charges or an indictment.
The Model Rules of Professional Conduct have special responsibilities for prosecutors. “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” This responsibility is most pertinent to charging. However, the rules go on to address rights of the accused, timely disclosure, limits of statements made to the public regarding cases, and remedying wrongful convictions.
The American Bar Association also produces Criminal Justice Standards to guide the prosecutors function. It is the duty of the prosecutor to serve the public interest “by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.” This requires proper discretion and judgment that considers the numerous factors discussed above.
Factors for Consideration
The prosecutor may consider the following factors when making charging decisions:
a. Nature of the offense;
b. Probability of conviction;
c. Characteristics of the accused relevant to blameworthiness e.g. criminal history;
d. Potential deterrent value;
e. Value to society of confinement in the event of a conviction;
f. Cooperation with law enforcement;
g. Culpability in the criminal activity;
h. Victim status;
i. Accused position of trust;
j. Cost of prosecution versus seriousness of the offense;
k. Recommendation of the involved law enforcement; and
l. Community impact of the crime.
Utilizing these factors, prosecutors determine which potential charges would be appropriate for the offense and how justice can best be served. “The prosecutor is making a decision that will have a profound effect on the lives of the person being charged, the person’s family, the victim, the victim’s family, and the community as a whole.” While there is room for some uniformity, the overall circumstances of crimes vary too widely for a one-size-fits-all approach.
On the other hand there are factors that should not be considered when a prosecutor makes a charging decision. These include:
a. Prosecutor’s or office’s rate of conviction;
b. Personal advantages or disadvantages;
c. Political advantages or disadvantages;
d. Discriminatory characteristics; and
e. Impact of any potential asset forfeiture
Prosecutors face pressures within the office and from the public in carrying out their responsibilities. It’s likely challenging not to allow these factors to weigh in on decisions. A commitment to the integrity and ethical standards of the legal profession ideally keep prosecutors in check and focused on the priorities and needs of the communities they serve.
Arkansas has 28 locally elected prosecutors across the State serving both single and multiple county districts. Arkansas law provides, “Each prosecuting attorney shall commence and prosecute all criminal actions in which the state or any county in his district may be concerned.” Prosecutors are granted constitutional power to render charging decisions against defendants as well. Contrary to what some may believe, prosecuting attorneys aren’t motivated to fill jails and prisons. Instead, they are motivated to protect the rights of defendants, victims, and communities. The impact of prosecutorial power can be seen through seeking lower sentences, issuing a less serious charge, and refusing cases where police misconduct is evident.