PROSECUTORIAL DISCRETION focuses on the abuse of the prosecutor’s power to decide NOT to pursue an indictment in situations where there exists clear evidence that a serious crime has been committed. Plenty is said of prosecutors who engage in overzealous prosecution or engage in proactive misconduct, relatively little attention is paid to the all too common case of the prosecutor who simply looks the other way and allows crimes to be committed, usually by those in government or those who are politically allied or otherwise connected with the good-ol-boys network to which the prosecutor belongs.
Good sites to find incidents that involve abuses of prosecutorial discretion are Radley Balko’s “The Agitator,” Carlos Miller’s “Photography is Not a Crime,” Will Grigg’s “Pro Libertate” as well as Facebook (if your friends are into news) and Drudge Report although the articles on these sites don’t often mention the prosecutor’s role in the incidents or the prosecutors name. If you see a story, especially one that doesn’t mention the prosecutor, put a link in a comment, and I’ll put the prosecutor’s name out there if it fits the criteria below.
While some discretionary power must be allowed in prosecution and law enforcement, as well as just about any job performed by humans, certain situations rise to the level of what could be fairly called abuses of discretionary power such as:
1- cases in which money was awarded for excessive force, especially in cases of police abuse involving injury to an innocent civilian. Remember, the standard of proof for a civil case is “preponderance of evidence,” meaning not guilt beyond a reasonable doubt but likely at-fault, AND the standard for proof in a grand jury indictment is the same thing, “preponderance of evidence.” So you have these cases, of which there are many, in which either the jurisdiction (through settling out of court) or the civil jury has basically said “The preponderance of evidence says that Officer Smith used excessive force when he shot Joe Citizen’s dog, therefore we’re awarding Joe Citizen $10,000.” Now it can be assumed that the jurisdiction’s prosecutor has been made aware that there exists a preponderance of evidence against officer Smith, by virtue of the fact that this has all gone on in his own backyard, and, likely involved his own employer and perhaps even took place in the same building in which he works.
And yet, Mr. Prosecutor decides (at whatever level of consciousness) that the preponderance of evidence, which was enough for a civil suit payout, isn’t enough to put something in front of a grand jury for criminal prosecution.
2- cases in which “internal review” found a government official at-fault to some degree in an incident which appears to be a crime, something you or I would get charged with. Often internal reviews find no fault in cases in which video or other evidence suggests otherwise, and internal investigations are cases of an agency investigating it’s own. There’s already a built-in bias. So, when an agency finds one of its own to be at fault doing something which could be described as a crime, then why not put the at-fault person in front of a grand jury and clear up the inevitable perception of corruption and a two-track justice system?
3- cases in which there is clear video evidence of a government official engaging in what appears to be a crime, such as beating a handcuffed suspect or shooting an unarmed suspect or animal. Sure, the tape doesn’t show everything, but don’t let “internal review” be the sole decider. If the video doesn’t show everything, let a grand jury decide.