The American justice system relies on a delicate balance of powers and responsibilities designed to help ensure that justice is served impartially and fairly. One cornerstone of this system is the independence of prosecutors, who are tasked with making difficult decisions about charging and prosecuting individuals and entities. The American Bar Association Criminal Justice Standards for the Prosecution Function describes the role of the prosecutor as
an administrator of justice, a zealous advocate, and an officer of the court … [who] serves the public interest … by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.
Integral to prosecutorial independence and discretion is the reality that not every offense can or should be prosecuted and that the prosecutor must have broad authority and discretion to pursue—or not pursue—charges in particular cases based on the relevant facts and circumstances.
ABA Standard 3-4.4 lists sixteen factors that prosecutors may properly consider in whether to bring charges, which includes, for example, the best use of limited resources. Historically, many prosecutors have gone so far as to announce office policies not to prosecute certain low-level misdemeanor offenses so that the office could focus on serious felonies. But chief prosecutors in most states are also elected politicians, and sometimes their statements that challenge the status quo, propose reforms, or defend prosecutorial discretion may be unfairly conflated with efforts to nullify laws.
Last year, more than 80 prosecutors in more than 30 states and other jurisdictions signed an open letter from the progressive organization Fair and Just Prosecution (FJP). The letter expresses frustration with legislatures passing new laws banning abortion and subjecting those who seek or provide those services to criminal penalties when enforcing those laws would “take resources away from the enforcement of serious crime, and inevitably lead to the retraumatization and criminalization of victims of sexual violence.” Legislators in more than a dozen states responded to this and other examples of prosecutorial discretion with legislation to authorize direct oversight of prosecutors who fail to enforce all laws.
In addition, a governor acting under his existing legal authority removed and replaced two prosecutors who signed the FJP letter despite neither prosecutor adopting office policies not to prosecute violations of the state’s relevant law. A federal judge later ruled that the first prosecutor’s removal had been politically motivated, violating his First Amendment right to free speech. The governor offered different grounds for removing the second prosecutor, but the move prompted the National District Attorneys Association to express its “deep concern.”