The decision to charge or not to charge someone with committing a crime rests with the prosecutor, who could be a city attorney, district attorney, state attorney general or U.S. Attorney.
In making such decisions, the prosecutor serves as an instrumental arm of law enforcement, a critical administrator of justice, and a key guardian of public safety for the community.
These are consequential decisions that affect the lives and fortunes of those charged, their victims and the community as a whole. As such, they require the establishment of clear guidelines and training and oversight by leaders of the organizations prosecuting crimes.
The recent local prosecutions concerning shrubbery cutting (which resulted in a complete dismissal after local media coverage) and sidewalk chalking (which was ended by an acquittal by jury and resulted in extensive national media attention) underline the immense importance of the concept of prosecutorial discretion.
A prosecutor must make a charging decision only after a thorough review of all pertinent facts, competent analysis of pertinent laws and sound judgment as to whether the conduct in question belongs in the criminal court.
A necessary threshold for crime charging is that the conduct must meet all the elements of a crime as defined by statute. However, just because certain conduct meets the elements of a crime does not necessarily mean that such conduct must be charged as a crime.
The prosecutor needs to envision the collective mind of a reasonable jury in the community where the conduct occurred. Would a reasonable jury return a guilty verdict based on admissible evidence and applicable laws?
Of equal importance is the exercise of sound judgment to assess whether the activities in question rise to the level of criminal conduct. Does charging this conduct as a crime serve the best interests of society as a whole? What goals do we want to achieve in pursuing such a case criminally? Does it make sense to charge this conduct as a crime or should it be handled differently?
Aside from their legal skills, it is crucial that prosecutors are well-trained and dedicated to the fair and equal application of justice. Crime-charging decisions are the triggering keys that set into motion life-changing events for all those affected by such decisions.
The leaders of prosecutors must ensure their subordinates have training and oversight systems to guarantee charging decisions are made with the rigorous exercise of the utmost care, the highest degree of legal competence, and the soundest level of judgment.
Robert Brewer was a decorated combat veteran in Vietnam, served as a state and federal prosecutor, and is now an attorney in private practice specializing in civil litigation and white-collar defense. He is a candidate for San Diego County district attorney.