CJ 100 Lecture Notes - Lecture 50: Nolle Prosequi
Prosecutorial Discretion
As an elected or appointed official, the prosecutor is the most powerful official in the criminal
justice system. Prosecutors exercise unfettered discretion, deciding who to charge with a crime,
what charges to file, when to drop the charges, whether or not to plea bargain, and how to
allocate prosecutorial resources. In jurisdictions where the death penalty is in force, the
prosecutor literally decides who should live and who should die by virtue of the charging
decision.
Criminal justice professors Joseph Senna and Larry Siegel propose the true measure of
a prosecutor. In their view, a litmus test for the integrity of a prosecutor is how he or she
answers the following question: “When you exercise discretion, are you more concerned
with fairness, the likelihood of conviction, or political considerations?”
Prosecutors exercise the most discretion in three areas of decision making: the decision
to file charges, the decision to dismiss charges, and plea bargaining.
Charging
Once an arrest is made, a prosecutor screens the case to determine if it should be
prosecuted or dropped. The decision to prosecute is based on the following factors:
The sufficiency of the evidence linking the suspect to the offense.
The seriousness of the offense.
The size of the court's caseload.
The need to conserve prosecutorial resources for more serious cases.
The availability of alternatives to formal prosecution.
The defendant's culpability (moral blameworthiness).
The defendant's criminal record.
The defendant's willingness to cooperate with the investigation or prosecution of
others.
Dropping charges
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Document Summary
As an elected or appointed official, the prosecutor is the most powerful official in the criminal justice system. Prosecutors exercise unfettered discretion, deciding who to charge with a crime, what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate prosecutorial resources. In jurisdictions where the death penalty is in force, the prosecutor literally decides who should live and who should die by virtue of the charging decision. Criminal justice professors joseph senna and larry siegel propose the true measure of a prosecutor. In their view, a litmus test for the integrity of a prosecutor is how he or she answers the following question: when you exercise discretion, are you more concerned with fairness, the likelihood of conviction, or political considerations? . Prosecutors exercise the most discretion in three areas of decision making: the decision to file charges, the decision to dismiss charges, and plea bargaining.
