Prosecutorial discretion

Prosecutors’ awesome power

Maryland prosecutors, by state constitution and common law, have discretion to exercise enormous power to control the criminal justice process, with minimal oversight by the courts:

  • They may advise police officers as to charges, search warrants, and ongoing investigations.
  • They select and write charges before these are filed in court or submitted to grand juries.
  • They may dismiss charges filed by citizens, police, or prosecutors themselves for various reasons, including incentives for defendants to plead guilty to other charges.
  • They can offer to drop or reduce charges against one defendant as incentive to obtain testimony—often found later to be unreliable—against another defendant.
  • They can make plea bargains to maximize convictions.
  • They decide what evidence to disclose or not to disclose to defendants and their attorneys.
  • They decide what evidence to present or not to present at trial.
  • They craft arguments seeking to persuade judges and juries at trial of each defendant’s guilt.
  • At sentencing, they argue for incarceration, or sometimes for alternative sentences.
  • They may oppose defendants’ appeals and requests for post-sentence modifications.

Maryland prosecutors are only rarely required to speak publicly about how they choose to exercise their “awesome power.” But their choices often create serious public problems:

  • African American men are incarcerated in Maryland at more than twice their proportion in the population—the highest rate of any U.S. state. According to a 2015 report from the Justice Reinvestment Coordinating Council, among prisoners with sentences of ten years or longer, 87% were black.
  • African Americans are incarcerated twice as often for drug offenses as whites, although studies suggest their rates of drug abuse are not significantly different from those of whites.
  • Baltimore County was the source of the large majority of all Maryland death penalty cases because its State’s Attorney chose to seek the death penalty whenever possible.
  • In Frederick County, the State’s Attorney refused approval for a victim-assisting mediation program to work out informal solutions to criminal charges, although almost every other Maryland county has such programs.

According to the National District Attorneys Association, “The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” A prosecutor’s job is not to obtain as many convictions and the longest sentences possible. Both legal ethics and Maryland law require the prosecutor to consider the public interest and to do justice, sometimes choosing not to prosecute.

One solution

Pretrial detention, which can last months or even years, often causes defendants to lose their jobs and weakens their ties with family, putting them deeper in the hole. Some Maryland prosecutors review citizen-filed charges early and dismiss those that appear inadequate, rather than make some defendants wait in pretrial detention until their trial dates. Prince George’s County’s program is a good example. Pretrial screening became even more important when the pandemic presented mortal dangers to those in our local detention centers.

Prosecutors should be directed to use their discretion to help reduce Maryland’s incarceration rate and its disparate impact on the African American community and the poor:

  • Prosecutors can choose to screen and drop some charges.
  • They can offer pretrial diversion to avoid convictions, or accept alternatives to prison that result in taxpayer savings and citizens’ rehabilitation.
  • Those in pretrial detention because of poverty can be released with pretrial supervision. Earlier screening of laypersons’ charges also can reduce caseloads and pretrial detention.
  • “Problem-solving courts”—“designed to stop crime by treating substance use disorders and other serious problems underlying criminal conduct”—and criminal mediation programs could be offered in every Maryland jurisdiction with prosecutors’ support.

Will this work?

Prince George’s County prosecutors use early screening of all citizens’ complaints to consider mediation, diversion or, if appropriate, dismissal. Mediation of criminal cases has been offered via court-related programs in nearly half the state and by community-based programs in the rest, except for Frederick County, where the prosecutor has refused to cooperate. Statistics show that successful mediation decreases later court appearances and use of police resources.

Problem-solving court techniques and resources have been shown to reduce recidivism. With prosecutors’ support, these could be expanded to all parts of the state and offered as widely as possible within every criminal court.

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