In most jurisdictions, the decision to prosecute
a suspect rests solely with the prosecuting
attorney. The district attorney's broad discretion
to commence a prosecution is almost limitless.
Prosecutors determine where the prosecution will
take place and decide the precise charges that will
be pressed. For example, prosecutors have the
authority to authorize diversion, under which
completion of drug treatment, anger management
counseling, or community service results in the
dismissal of charges. Such displays of prosecutorial
mercy are often exercised in a manner that
disproportionately benefits whites.
In 1991, the San Jose Mercury News uncovered
statistically significant disparities at several
stages of the criminal justice process when it
reviewed almost 700,000 criminal cases in
California. The study showed that six percent of
whites as compared to only four percent of
minorities won "interest of justice" dismissals in
which prosecutors dropped a criminal case entirely.
Moreover, the study indicated that 20 percent of
white defendants charged with crimes for which they
were eligible for diversion received diversion,
while only 14 percent of similarly situated blacks
and 11 percent of similarly situated Hispanics were
placed in such programs.
Selective prosecution and/or discriminatory
prosecution may violate a defendant's right to equal
protection and may constitute a defense to the
charge. In many jurisdictions, the claim of
discriminatory prosecution is made when a defendant
alleges and proves that he/she is being prosecuted
solely because of race, religion, or other arbitrary
classifications.
Vindictive prosecution may also constitute a
violation of a defendant's rights. In most
jurisdictions a defendant must prove that a
prosecutor's decision to prosecute was motivated by
a desire to punish a defendant for exercising his
legal rights or privileges. For example, prosecuting
a person for exercising their Fifth Amendment right
not to incriminate themselves would constitute
vindictive prosecution.
Some jurisdictions also review demagogic
prosecutions. These are prosecutions instituted in
bad faith, prosecutions that reflect illegitimate
personal considerations rather than valid law
enforcement objectives. These types of prosecutions
can be separated into four groups.
- Prosecutions undertaken with no reasonable
belief that a conviction will result.
- Prosecutions directly intended to retaliate
or deter someone from exercising a protected
constitutional right.
- Prosecutions for relatively minor or seldom
enforced offences combined with political or
racial overtones.
- Prosecutions motivated by desire for
personal or political gain.