Explain why discretionary decision making occurs in the criminal courts and provide some specific examples of prosecutorial discretion

Question

What will be an ideal response?

Answer 1

Discretion is exercised at every key decision point within the criminal justice system. After an arrest is made, a prosecutor may decide not to file charges. If charges are filed, a judge has discretion in terms of the amount of bail that may be set. If a case goes to trial, the jury will have discretion over whether to find a defendant guilty. These are just a few examples of discretionary decision making that may occur within the criminal courts. Choices are made on the basis of legal judgments, policy priorities, and the values and attitudes of the actors involved.
For example, although a prosecutor may believe that a given defendant violated the law, s/he may decide against moving forward with prosecution based on a supposition that no jury would come back with a guilty verdict. Other discretionary decisions may reflect policy choices; all crimes cannot be prosecuted because resources are limited. More serious crimes will likely be prosecuted because they are considered a priority, while less serious offenses, such as disorderly conduct, may not.