The criminal laws define what constitutes criminal conduct. But prosecutors are the ones who decide which actions meet those definitions, who should actually be prosecuted and to what extent—and they have tremendous discretion in making these decisions.

So how do they exercise that discretion?

In December 2012, researchers from the Vera Institute of Justice released the results of a study, “The Anatomy of Discretion: An Analysis of Prosecutorial Decision-Making,” that looks at how prosecutors make decisions about cases.

The researchers used data from two moderately large county prosecutors’ offices, examining various stages in the criminal justice process, including initial case screening and charging decisions, plea offers, sentencing recommendations and post-filing dismissals.

At each stage, they considered how prosecutors weighed various factors in their decision-making through the prism of the following questions:

• How did prosecutors define and apply the concepts of justice and fairness?
• What factors were associated with prosecutorial outcomes at each stage?
• How did prosecutors interpret and weigh different case-specific factors in making decisions at each stage?
• How did contextual factors constrain or regulate prosecutorial decision-making?
• How consistent were prosecutors’ decisions across similar cases? What case-level and contextual factors influenced the degree of consistency?

They also collected information directly from prosecutors, through responses to hypothetical cases and a survey of prosecutors’ opinions and priorities as well as individual interviews and focus group discussions.

The researchers came to several conclusions. They found that prosecutors’ relationships with various players in the system, including police, defense attorneys and judges, can influence how they handle cases.

They suggested this influence is a bad thing, arguing that these relationships may force prosecutors “to make decisions that they might not consider ideal.”

But I disagree. I think that, at least in some cases, such relationships can result in fairer and more appropriate outcomes.

Prosecutors get information about a case from many sources. Some information is objective and simply factual, such as a defendant’s criminal record; other information is subjective and thus prosecutors must evaluate its source.

Defense attorneys are the primary source of information about defendants that isn’t available in a criminal record, such as the circumstances that lead to the crime, the defendant’s background, whether he has a support system, etc.

In an ideal world, you would be able to take all representations made by defense attorneys at face value. But in reality, such representations may be misleading.

For instance, when I was an assistant in the Manhattan District Attorney’s Office, I recall working with defense attorneys who had a sob story for every single one of their clients. After a while, those stories rang false.

In contrast, over time, I developed relationships with defense attorneys whom I came to respect and trust. When those attorneys said a client was a good kid with a support system who’d made a stupid mistake or an addict who needed drug treatment instead of prison, I tended to give credence to their claims.

As a result, because of my relationship with those attorneys, I believe that those cases resulted in fairer or more appropriate resolutions.

The Vera researchers also found that although the prosecutors were generally guided by the idea of doing justice, they didn’t necessarily define “doing the right thing” the same way.

Some said that fair treatment requires similar outcomes for similar cases, while others attached greater importance to individualized treatment of defendants.

In my mind, the goal should be to treat defendants fairly—not necessarily the same.

For instance, the study found considerable variation in the decisions reached by different prosecu­tors in “similar” cases. But cases that look similar on the surface may not be so similar under more scrutiny.

One example:  two men of similar ages with similar criminal records are arrested for breaking into a house and stealing a big screen TV. At first glance, these cases seem to be alike and thus warrant similar plea offers and sentences.

But if one defendant stole the TV planning to fence it to feed his family, while the other simply wanted a big screen TV, do these cases still deserve similar treatment?

And what if one was going to sell the TV to support his drug habit: would that fact justify treating his case differently than the other burglar’s?

The same analysis could be applied to crime victims. I would argue that a case in which a man assaults another man in a bar fight shouldn’t be treated the same as a case in which the same man beats up an elderly woman on the street.

Because cases tend to be very fact-specific, I believe that attempting to treat so-called similar cases in the same manner may result in similar—but not necessarily appropriate—outcomes.

Lastly, the researchers observed that the district attorneys had very few office-wide policies on case outcomes, although individuals units within these offices did have policies that limited discretion.

I agree that prosecutors shouldn’t have completely unfettered discretion. It can be abused by unscrupulous prosecutors.

And more commonly, it can be misused by inexperienced ADAs.

Prosecutors need guidelines for handling various common kinds of cases and evaluating the many factors that should impact their resolutions.

But having fixed rules for handling cases is counterproductive because they don’t account for differences between individual cases.

When applied to the criminal justice system, rigidity has rarely proven to be a good idea.

Take the “three strikes law” in California that removed sentencing discretion from courts and imposed mandatory life sentences for third felony convictions regardless of circumstances.

This law didn’t work for many reasons, including that it resulted in unfair outcomes. As a result, California just made major revisions to it, following a state-wide referendum last November.

Similarly, inflexible policies in a district attorney’s office that mandate certain offers or outcomes for certain kinds of cases could also result in injustices.

Bottom line: Prosecutors must have discretion in how they handle criminal cases to ensure that justice is done.

But they also need guidelines and oversight to ensure that they don’t run amok and that defendants aren’t treated unfairly.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report.  She welcomes readers’ comments.

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