By John Zimmerman
There is discretion throughout the criminal justice system. Police have discretion regarding when to handle a situation with an arrest and when to let someone off with a warning. Judges have discretion regarding sentencing. But as anti-overincarceration author Michelle Alexander has written, “No one has more power in the criminal justice system than the prosecutor. Few rules constrain the exercise of prosecutorial discretion.
The prosecutor is free to dismiss a case for any reason or no reason at all, regardless of the evidence.”
The New York Times recently criticized prosecutors for abusing this discretion when they seek victory over justice and noted that because prosecutors “have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the
Out of concerns regarding overly harsh mandatory sentences, the Obama administration recently has used prosecutorial discretion in a positive way by directing federal prosecutors, regardless of their ability to do so, to stop prosecuting many drug crimes to the fullest extent possible.
In its standards for prosecutors, the American Bar Association states explicitly that prosecutors are not obligated to prosecute in every situation in which someone has broken a law.
According to the ABA guidelines, there are several good reasons for prosecutors not to charge people who have broken a law, including that the punishment would be disproportionate to the crime, that resources are better directed elsewhere, that little or no harm resulted from the crime, and that there are better ways to handle the
Here in Iowa, it is the county attorney who has the discretion to set the prosecution policies for the county.
In larger counties like Johnson and Linn, a dozen or so prosecutors — assistant county attorneys — then implement those policies in the prosecution of individual cases.
Because county attorney is an elected position, the voters thus have the opportunity every four years to select someone who will set the prosecution policies that the voters most want … in a criminal justice system otherwise dominated by unelected police and unelected judges.
My recently announced campaign for Johnson County Attorney will focus on how prosecutorial discretion should be used here in Johnson County.
If elected, I will set policies that end prosecution for victimless offenses such as smoking pot and public intoxication, throw out cases that arise from racial profiling, carefully review all cases brought by the police to make sure that the situations from which they arise genuinely call for criminal charges, and ensure that filed charges are not unnecessarily harsh.
Johnson County too often overprosecutes petty cases instead of focusing resources on protecting people from real crime. It will be up to the voters to decide whether that changes.
John Zimmerman of Iowa City is running for Johnson County attorney in the Democratic primary in June. Comments: firstname.lastname@example.org