Are There Limits to Prosecutorial Discretion?

In Cochise County, Ariz., anti-immigrant militant Roger Barnett has threatened Latinos at gunpoint, yet has never been prosecuted for his actions. In Tucson, armed nativist Roy Warden was caught on videotape threatening to blow a child's brains out, but the prosecutor, to the amazement of the sentencing judge, did not request that Warden serve any jail time. And in Maricopa County, Patrick Haab, a veteran with mental problems, was charged with aggravated assault by sheriff's deputies who found him at an Arizona rest stop holding seven undocumented immigrants at gunpoint. The prosecutor later dropped all the charges.

Why do prosecutors have so much power and authority to determine which cases are prosecuted and whether a person will face a harsh penalty or get away with a slap on the wrist? The answer is simple: "prosecutorial discretion." Under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges and what charges to bring.

There is no doubt that prosecutorial discretion is a necessary and important part of our system of justice — it allocates sparse prosecutorial resources, provides the basis for plea-bargaining and allows for leniency and mercy in a criminal justice system that is frequently harsh and impersonal. But it also places prosecutors in one of the most powerful positions in our criminal justice system. They literally have unchecked power to decide who will stand trial for crimes. Though most prosecutors use their discretion wisely and ethically, that discretion can also be misused to bring criminal charges — or to refuse to bring them — based on a prosecutor's own personal political beliefs.

In the political atmosphere of 1963 Alabama, prosecutors declined to bring charges against the Klansmen who murdered four young girls in a Birmingham church, even though the FBI rapidly identified the perpetrators.

During the civil rights era, for example, white prosecutors in Southern towns notoriously refused to bring charges against whites for racially based hate crimes against African Americans — even when the evidence in favor of prosecution was overwhelming. Since 1989, federal authorities have re-examined 22 deaths from the civil rights era and made 25 arrests, leading to 16 convictions, two acquittals and one mistrial. Many of those cases could have been brought to trial many years or even decades ago if the local prosecutor had been willing to do so.

Even today, prosecutorial discretion is often exercised in a racially suspect manner. The San Jose Mercury News reviewed almost 700,000 criminal cases from California between 1981 and 1990 and uncovered statistically significant racial disparities in the prosecution of crimes. Among the study's findings was that 6% of whites, as compared to only 4% of minorities, won "interest of justice" dismissals, in which prosecutors dropped a criminal case entirely. The same study revealed that a white felony defendant with no criminal record stood a 33% chance of having a charge reduced to a misdemeanor or regulatory infraction, compared to 25% for a similarly situated African American or Latino.

So what is the recourse if a prosecutor refuses to bring charges that are obviously meritorious, such as in the Arizona cases involving anti-immigrant militants, because of his or her own political beliefs?

Unfortunately, the same factor that insulated southern whites who terrorized and murdered African Americans during the civil rights era is now protecting the Roger Barnetts, Roy Wardens and Patrick Haabs of the world — populist anger at a particular group of people, in this case Latinos perceived to be undocumented immigrants. Prosecutors concerned about their jobs (local district attorneys are typically elected, and U.S. attorneys are appointed by the president and confirmed by the U.S. Senate) may find it easier not to bring unpopular cases. At the end of the day, there are only two solutions in such situations. Either the prosecutor is ethical and follows the law without regard to the political consequences, or public sentiment changes, as it did in the Deep South in recent decades, making it politically palatable to pursue the cases.

Rhonda Brownstein is the director of the Southern Poverty Law Center's Legal Department.