The Importance of Prosecutorial Discretion

“Prosecutorial Discretion” is the general concept that prosecutors are empowered with the ability to choose what to prosecute and/or what punishments to pursue.

Basically, while some acts might technically constitute a crime, these acts don’t always warrant punishment or prosecution… especially when mitigating circumstances are taken into account. We at Longwell Lawyers regularly use this concept to convince prosecutors that justice does not warrant charges being filed or a particular mandatory punishment being sought.

For instance, in Florida, it is technically a crime to record a telephone conversation, unless both parties to the call know the call is being recorded. Sometimes, however, prosecutors will choose not to prosecute that crime when they find out that the crime was committed to proving that someone was being wrongfully accused or extorted, etc.

In other cases, a defendant might possess someone else’s prescription pills. If the combined weight of these pills is over an arbitrarily specified weight, the law says that the defendant should be charged as a “Drug Trafficker” rather than for simply possessing a controlled substance. Occasionally, prosecutors will, in recognition of the fact that the drugs really were for personal use, exercise their discretion and charge the defendant with simple drug possession, rather than with a Drug Trafficking Offense.

Needless to say, Prosecutorial Discretion is exceedingly important and recently, Florida’s Supreme Court decided a high-profile case where a prosecutor’s exercise of discretion was challenged.

On March 15, 2017, Orange and Osceola County’s elected State Attorney, Aramis Ayala, announced that she “will not be seeking [the] death penalty in the cases handled in [her] office” even where an individual case “absolutely deserve[s] [the] death penalty.”

There was a massive public backlash to this announcement which prompted Florida Governor Rick Scott to reassign any case that was eligible for the death penalty to a neighboring Circuit’s chief prosecutor so that the neighboring prosecutor could make the decision of whether to pursue Florida’s ultimate punishment. Ms. Ayala challenged the Governor’s authority to reassign these cases citing, among other reasons, her ability to exercise Prosecutorial Discretion.

Those following this case were troubled by the Governor’s actions. If a Governor has the ability to override a prosecutor’s discretion, do prosecutors really have any discretion at all?

Spoiler Alert: Florida’s Supreme Court held that prosecutors still have discretion and are required to exercise that discretion on a case-by-case basis. However, announcing a blanket policy is tantamount to not exercise any discretion at all. In fact, they said, enacting a blanket policy is the refusal to exercise discretion. Other judges on the high court disagreed and the ruling is being hotly debated in the legal community.

But very few cases involved even the possibility of the death penalty. So, what does this ruling mean for the average person accused of a crime? Well, it ensures that prosecutors are required to evaluate each allegation on a case-by-case basis.

Just as judges may not have “blanket policies” in their courtrooms[1] (e.g.” All first-time drug offenders in my courtroom must spend at least 10 days in jail.”), neither may prosecutors. So, while anti-death penalty advocates may decry this opinion, the silver lining is this: The next time your defense attorney hears a prosecutor say something like “My office does not allow me to do that [,]” or “We don’t waive minimum mandatory sentences [,]” we can cite today’s decision, tell the prosecutor that the Supreme Court mandates that you consider my request and you are violating your prosecutorial duties by summarily denying my proposal without consideration.”


[1] Trial judges may not “refuse to exercise discretion” or “rely on an inflexible rule for a decision that the law places in the judge’s discretion.” Barrow v. State, 27 So. 3d 211, 218 (Fla. 4th DCA 2010)