Who Holds the Real Power?

When we think of justice, we often picture the judge or jury. But behind the scenes, prosecutors wield an enormous amount of control. They decide:

• Whether to file charges at all

• Which charges to bring (and how many)

• Whether to offer a plea deal—and what kind

• What sentence to recommend

In many cases, a prosecutor’s decisions determine the entire course of justice before a trial ever begins.

What Is Discretion?

“Discretion” means the power to choose how to apply the law. Ideally, discretion allows prosecutors to exercise compassion and judgment, taking individual circumstances into account.

But unchecked discretion can also create arbitrariness, inequality, and abuse.

No Oversight, No Accountability

In most jurisdictions, prosecutors are:

• Elected but rarely challenged

• Immune from lawsuits for most of their decisions

• Not required to explain why they dropped a charge or pursued a harsh sentence

This means prosecutors often operate with little transparency—and virtually no consequences for mistakes or misconduct.

Examples of Misuse

• Overcharging: piling on charges to pressure plea bargains

• Racial disparities: choosing to pursue more serious charges against defendants of color

• Selective enforcement: charging some people while ignoring similar actions by others

• Suppressing evidence: hiding information that could help the defense (a violation of the Brady Rule)

Even when misconduct is discovered, prosecutors are rarely punished.

Progressive Prosecutors: A New Model?

In recent years, some cities have elected “progressive prosecutors” who emphasize:

• Reducing mass incarceration

• Ending prosecution of low-level nonviolent offenses

• Holding police accountable

• Increasing transparency

Supporters see them as a hopeful shift. Critics accuse them of being too lenient.

Time will tell if this model leads to lasting reform—or if traditional power structures will push back.

Thought Questions

• Should prosecutors have this much unchecked power?

• What systems could be created to review or appeal prosecutorial decisions?

• How can we balance prosecutorial discretion with democratic accountability?

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Lesson 6 – Bail and Pretrial Detention: Freedom or Price Tag?