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The importance of prosecutorial discretion

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.

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User Response
2 UserComments
Sue Fricken 11:14pm December 26, 2013

I am so happy to see your column and am delighted with the opportunity to vote for you. The DA's office all too often persecutes instead of prosecutes people with reckless disregard for the outcome. They also file appeal after appeal when a judge does not rule how they want, and have gone so far as to "blackball" judges who rule against them (see stories about Judge Einhorn, a very respected judge). Taxpayers should be angry that their money is wasted in trial after trial of the same people by spiteful DA's, that people are overcharged with crimes which can wreak havoc on their ability to work and force them onto public assistance, and that people are in jail/prison who should not be. I am happy to be able to vote for someone who will run the DA office the way it should be...intelligently and fairly. I can't wait to vote for Robert Brewer and for sanity to prevail in the DA office.

Social Activist 8:58pm December 19, 2013

Robert Brewer sounds like a very wise and judicious person who would make an excellent District Attorney in 2014.

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