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September 28, 2023

ABA Supports Protecting the Independence of Prosecutors

Growing Number of States Test the Limits of Prosecutorial Discretion

Integral to prosecutorial independence and discretion is the reality that not every offense can or should be prosecuted.

Integral to prosecutorial independence and discretion is the reality that not every offense can or should be prosecuted.

The American justice system relies on a delicate balance of powers and responsibilities designed to help ensure that justice is served impartially and fairly. One cornerstone of this system is the independence of prosecutors, who are tasked with making difficult decisions about charging and prosecuting individuals and entities. The American Bar Association Criminal Justice Standards for the Prosecution Function describes the role of the prosecutor as  

an administrator of justice, a zealous advocate, and an officer of the court … [who] serves the public interest … by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

Integral to prosecutorial independence and discretion is the reality that not every offense can or should be prosecuted and that the prosecutor must have broad authority and discretion to pursue—or not pursue—charges in particular cases based on the relevant facts and circumstances.

ABA Standard 3-4.4 lists sixteen factors that prosecutors may properly consider in whether to bring charges, which includes, for example, the best use of limited resources. Historically, many prosecutors have gone so far as to announce office policies not to prosecute certain low-level misdemeanor offenses so that the office could focus on serious felonies. But chief prosecutors in most states are also elected politicians, and sometimes their statements that challenge the status quo, propose reforms, or defend prosecutorial discretion may be unfairly conflated with efforts to nullify laws.

Last year, more than 80 prosecutors in more than 30 states and other jurisdictions signed an open letter from the progressive organization Fair and Just Prosecution (FJP). The letter expresses frustration with legislatures passing new laws banning abortion and subjecting those who seek or provide those services to criminal penalties when enforcing those laws would “take resources away from the enforcement of serious crime, and inevitably lead to the retraumatization and criminalization of victims of sexual violence.” Legislators in more than a dozen states responded to this and other examples of prosecutorial discretion with legislation to authorize direct oversight of prosecutors who fail to enforce all laws.

In addition, a governor acting under his existing legal authority removed and replaced two prosecutors who signed the FJP letter despite neither prosecutor adopting office policies not to prosecute violations of the state’s relevant law. A federal judge later ruled that the first prosecutor’s removal had been politically motivated, violating his First Amendment right to free speech. The governor offered different grounds for removing the second prosecutor, but the move prompted the National District Attorneys Association to express its “deep concern.”

Such confrontations over prosecutorial independence are not limited to those of different political parties or ideologies. In April, FJP issued a statement critical of a progressive governor and state attorney general, and in another state, the Republican governor refused calls by legislators in his own party to remove, or support the impeachment of, a county prosecutor for the indictment of former President Donald Trump.

In explaining his decision not to take action against the county prosecutor, Gov. Brian Kemp (R-GA) cited a lack of evidence of wrongdoing as well as constitutional concerns. A lawsuit challenging the newly enacted Georgia statute making it easier to remove elected prosecutors is pending. (In 2020, the nation’s first legislatively created state commission tasked with investigating alleged prosecutorial misconduct was struck down as unconstitutional for violating the separation of powers.)

The ABA opposes politically motivated threats to prosecutorial independence and discretion while supporting appropriate oversight of prosecutors suspected of being mentally or physically unfit or who engage in “gross deviation” from professional norms.

In such extreme cases, the ABA Standards require that the prosecutor be given notice and the ability to be heard. The Standards also state that legislation or protocols to remove an elected prosecutor must be fair and objective, such as by including written standards for removal that comport with due process and acknowledge the need for prosecutorial independence and the appropriate exercise of discretion.

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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