Prosecutorial discretion is a term that refers to a prosecutor’s ability to choose which cases to prosecute and to choose what level of charge to bring. Over the last hundred years prosecutors have enjoyed a significant increase in power as prosecutorial discretion has taken a big leap coinciding with the dramatic increase in cases resolved by plea bargaining. In other words, it often seems that the prosecutor is the most powerful player in the United States criminal courts.
This case is just one example of how prosecutorial discretion works.
A Cook County defense lawyer spends her days working for the Chicago Transit Authority. She also volunteers her legal expertise from time to time to a group called the First Defense Legal Aid, representing those who can’t afford their own attorneys.
She was interviewing a client for this legal aid work when she took her cell phone in a police interview room. Apparently there is a rule against this. A rarely enforced and seemingly unwritten rule. And because she violated the rule, she is now facing felony charges.
Other defense lawyers in the state are puzzled. They take their phones into police interview rooms and even occasionally allow their clients to use them. But by all accounts this is the first time one has faced charges for it, let alone felony charges.
There are no signs in the local police departments which say the phones aren’t allowed and according to the Chicago Tribune, officers rarely request attorneys to leave their personal items out of the room. However, the attorney in question states “It’s their house so whatever rules they’ve got, I’m going to follow them.” They never asked her to leave her phone behind or told her it wasn’t allowed.
So what made the prosecutor determine these sort of charges were appropriate? Some think it’s the attorneys pro bono work and past conflict with the Chicago police that may be bringing the attention to her. A previous encounter in the Federal Courts had her standing up to the local police alleging they tried blocking attorneys with the legal aid group from seeing their clients. The federal judge ruled in her favor.
Regardless of the motivation, the decision to charge her with a felony could affect her future and her career. The prosecutor, charging her and no other attorneys, has invoked that prosecutorial discretion, determining the charges are somehow appropriate.
If convicted she could be sentenced to 4 to 15 years in prison plus face sanctions by the Bar Association. The recent charges have already barred her full time employer from allowing her to continue her pro bono work with the legal aid group.
Prosecutors have immense power to pursue criminal charges how they see fit, and it is critical that they do not abuse that power. But that power is at least limited by the law some in some ways, such as rules on disclosure of potentially exculpatory evidence. However, that rule was apparently bent significantly in recent Indiana cases where questionable crime lab evidence was used.
But prosecution discretion is hard to quantify, and hard to limit. Different prosecutors make different decisions, so it is up to defense lawyers to fight abusive charges, and juries to see through biased or vengeful use of the power to charge someone with a crime.