Do Prosecutors Really Have Discretion??!? Forum

[seatown12]

You don't think clients have plans for their defense that wouldn't meet an objective standard of reasonableness? lol

We're talking about a standard where an attorney can literally be sleeping during critical portions of the trial and can still satisfy the performance prong. You're also ignoring that there is a prejudice prong.

Finally, there is also the problem that "my counsel let me present the defense I wanted and therefore was deficient" isn't exactly the kind argument that will have a judge jumping to overturn a conviction.

Protip: IAC claims are almost never won. Please never give advice stating that some conduct is "ineffective assistance for sure."

dude, I thought it was fairly obvious that I was being lighthearted but apparently the message didn't get through, I'm not putting on a CLE here chill out

[Cogburn87]

dude, I thought it was fairly obvious that I was being lighthearted but apparently the message didn't get through, I'm not putting on a CLE here chill out

[chicago520]

i want to be a prosecutor to change how unfair the criminal justice system works, but is that even possible from the inside?

What does this even mean? Prosecutors don't make policy, they enforce it. Yes, you have a lot of discretion, but you can't pass on prosecuting drug offenders because you disagree with the laws it's your job to enforce.

They hire you to enforce the laws on the books. That's your job, and if you don't do it, you lose it.

This is just simply false. Some District Attorney's categorically refuse to apply the death penalty. Some offices drop certain crimes automatically (re: occupy protest prosecutions in some jurisdictions). A DA can pass on any case he wants; it is not reviewable by anyone.

The only check on a DA is an election. The only check on a USA is Main Justice/Exec Branch.

[Anonymous User]

P.S. If you're not the boss in your division of the prosecutor's office, then your level of discretion is very small.

I don't agree with this. From what I have seen, after just a short stint a DA office, prosecutors are given leeway on what (or if) to charge, what pleas to enter into, and trial tactics, etc.

"Discretion" is essentially a euphemism for power over others lives. Prosecutors have a lot of discretion in the CJ system; it's as simple as that. Read some LR article on the theory and practice behind this. I'm not being trite, either.

Also, the USA is a silly example, since they don't typically handle the vast majority of crime in the US. You should intern with a local DA and shadow them around and ask questions. It's very valuable.

woops this wasnt supposed to be anon lol sorry

[eandy]

I think your understanding of discretion is a bit off. You can technically choose who to prosecute, but many offices will have checklists/strict guidelines to follow. If you deviate from them, you will need to give a reason. Saying something like "I don't think drug offenses are srs business" is not going to work as your reason. You can't really change those guidelines unless you are the DA (because they are who answers to the public). So, you would do better to be one of those people who becomes a defense attorney and then runs for DA after a lot of experience defending people. Then, you can change things. You don't change things working as an ADA. That is not your job.

[kalvano]

i want to be a prosecutor to change how unfair the criminal justice system works, but is that even possible from the inside?

What does this even mean? Prosecutors don't make policy, they enforce it. Yes, you have a lot of discretion, but you can't pass on prosecuting drug offenders because you disagree with the laws it's your job to enforce.

They hire you to enforce the laws on the books. That's your job, and if you don't do it, you lose it.

This is just simply false. Some District Attorney's categorically refuse to apply the death penalty. Some offices drop certain crimes automatically (re: occupy protest prosecutions in some jurisdictions). A DA can pass on any case he wants; it is not reviewable by anyone.

The only check on a DA is an election. The only check on a USA is Main Justice/Exec Branch.

You're talking about something else entirely. You're talking about the main person in charge, the one who sets policy.

That's not comparable to an ADA or AUSA. They follow the policy set by the DA or USA.

[chicago520]

i want to be a prosecutor to change how unfair the criminal justice system works, but is that even possible from the inside?

What does this even mean? Prosecutors don't make policy, they enforce it. Yes, you have a lot of discretion, but you can't pass on prosecuting drug offenders because you disagree with the laws it's your job to enforce.

They hire you to enforce the laws on the books. That's your job, and if you don't do it, you lose it.

This is just simply false. Some District Attorney's categorically refuse to apply the death penalty. Some offices drop certain crimes automatically (re: occupy protest prosecutions in some jurisdictions). A DA can pass on any case he wants; it is not reviewable by anyone.

The only check on a DA is an election. The only check on a USA is Main Justice/Exec Branch.

You're talking about something else entirely. You're talking about the main person in charge, the one who sets policy.

That's not comparable to an ADA or AUSA. They follow the policy set by the DA or USA.

I think the "setting the policy" requires discretion, and a lot of it. Sure, line ADAs are not setting policy, but day in and day out, they are using their judgment to separate the worthy cases from the non-worthy ones. A line ADA may have a personal policy to go a little lighter with his offers on drug possession cases, etc. There is more than "wiggle room" here; there is waggle room (i just made that up).

Many big city ADAs have over 200 cases, each. Do you really think each of them is so closely? Office policy are guidelines and general....and often not too controversial. I'm not sure where I'm going with all of this haha, but generally, my experience is that prosecutorial discretion is anything but limited.

[kalvano]

I think the "setting the policy" requires discretion, and a lot of it. Sure, line ADAs are not setting policy, but day in and day out, they are using their judgment to separate the worthy cases from the non-worthy ones. A line ADA may have a personal policy to go a little lighter with his offers on drug possession cases, etc. There is more than "wiggle room" here; there is waggle room (i just made that up).

Many big city ADAs have over 200 cases, each. Do you really think each of them is so closely? Office policy are guidelines and general....and often not too controversial. I'm not sure where I'm going with all of this haha, but generally, my experience is that prosecutorial discretion is anything but limited.

I'm not saying that they don't have a good measure of discretion over the cases that they have. I don't think anyone is, actually. What I'm saying is that the OP's anti-drug-law stance won't win him/her any friends in a DA's office, and (s)he won't have much discretion in cases like that. The original question was can you be soft on laws you don't agree with, and the answer is it depends on what stance your boss is taking on those laws.

To that end, you don't have discretion, and anyone trying to get into an ADA job to change policy has a long road ahead of prosecuting crimes they do not necessarily agree with.

But if you can't set aside your personal feelings on a matter, you might need to re-think being an attorney anyway.

[vanwinkle]

A prosecutor's office has discretion. The DA exercises much of that discretion him/herself by setting policy, and those underneath (the ADAs) must largely follow along. Any poor decisions by the DA's office will likely haunt the DA personally during re-election, and the way a DA wins election is by campaigning that he/she is tough on crime. Just one story about the DA's office tolerating an ADA who refuses to enforce the law could be damning.

An ADA has a job to do, and that job is to make his/her boss look good. That isn't that different from the rest of the world. When you become the boss you can dictate everything, but good luck getting there if you can't work your way up.