Prosecutorial discretion is a critical aspect of the prosecutorial function. There are many good reasons for a prosecutor to charge an individual with a crime in a particular case, and among the factors a prosecutor may legitimately consider in making this decision are, according to the American Bar Association’s ethical guidelines:
- whether there is evidence of the existence of criminal conduct;
- the nature and seriousness of the problem or alleged offense, including the risk or degree of harm from ongoing criminal conduct;
- a history of prior violations of the same or similar laws and whether those violations have previously been addressed through law enforcement or other means;
- the motive, interest, bias or other improper factors that may influence those seeking to initiate or cause the initiation of a criminal investigation;
- the need for, and expected impact of, criminal enforcement to punish blameworthy behavior; provide specific and/or general deterrence;
- provide protection to the community; reinforce norms embodied in the criminal law; prevent unauthorized private action to enforce the law;
- preserve the credibility of the criminal justice system; and other legitimate public interests.
- whether the costs and benefits of the investigation and of particular investigative tools and techniques are justified in consideration of, among other things, the nature of the criminal activity as well as the impact of conducting the investigation on other enforcement priorities and resources
- the collateral effects of the investigation on witnesses, subjects, targets and non-culpable third parties, including financial damage and harm to reputation
- the probability of obtaining sufficient evidence for a successful prosecution of the matter in question, including, if there is a trial, the probability of obtaining a conviction and having the conviction upheld upon appellate review; and
- whether society’s interest in the matter might be better or equally vindicated by available civil, regulatory, administrative, or private remedies.
None of these suggest that the prosecutor’s personal sympathy with the motives of the lawbreaker is a sufficient or ethical reason not to charge when a serious crime has been committed. That, however, appears to be how Bristol County (Massachusetts) District Attorney Sam Sutter sees his role: arbiter and enabler of righteous criminal activity. Continue reading