The American prosecutor occupies a unique position in the criminal justice system. Unlike police officers, who are constrained by the Fourth Amendment's reasonableness requirements, or judges, whose decisions are subject to appellate review, prosecutors exercise broad discretion that is largely insulated from external oversight. The decision to charge, what to charge, whether to divert, and how to negotiate a plea are all primarily within the prosecutor's control.

The charging decision is the most consequential exercise of prosecutorial discretion. A prosecutor who declines to charge ends the case. A prosecutor who charges a felony rather than a misdemeanor dramatically increases the potential consequences for the defendant. A prosecutor who charges multiple counts creates leverage for plea negotiations. These decisions are made before any judicial involvement and are rarely subject to meaningful review.

The legal standard for charging is probable cause — a reasonable belief that the defendant committed the offense. This is a low threshold. Prosecutors routinely have discretion to charge or decline even when probable cause exists. The decision is influenced by the strength of the evidence, the seriousness of the offense, the defendant's criminal history, available resources, office policy, and the prosecutor's own judgment about what justice requires.

Diversion programs offer an alternative to prosecution for eligible defendants, typically those charged with less serious offenses or those with no prior record. Successful completion of a diversion program — which may include treatment, community service, restitution, or supervision — results in dismissal of charges. Diversion serves multiple goals: it reduces court caseloads, avoids the collateral consequences of conviction, and may address underlying problems more effectively than prosecution.

Plea bargaining resolves the vast majority of criminal cases in the United States — estimates consistently place the figure above 90 percent of convictions. In a plea agreement, the defendant agrees to plead guilty in exchange for a concession from the prosecutor, which may include a reduced charge, a sentencing recommendation, or dismissal of other counts. The Supreme Court has held that defendants have a constitutional right to effective assistance of counsel during plea negotiations (Lafler v. Cooper, 566 U.S. 156 (2012); Missouri v. Frye, 566 U.S. 134 (2012)).

Critics of plea bargaining argue that it coerces innocent defendants into pleading guilty to avoid the risk of a much harsher sentence at trial — the 'trial penalty.' Research on wrongful convictions has documented cases in which innocent defendants accepted plea agreements because the risk of conviction at trial was too great. The Innocence Project has identified cases in which defendants pleaded guilty to offenses they did not commit.

Defenders of plea bargaining argue that it is essential to the functioning of the criminal justice system. If every defendant exercised the right to trial, the system would collapse under the caseload. Plea agreements also allow prosecutors to secure convictions in cases where evidence is strong but witnesses are reluctant, and to resolve cases more quickly for victims.

Prosecutorial accountability is a persistent challenge. Prosecutors are elected in most states, which creates political incentives that may not align with justice. Professional discipline through bar associations is rare and typically reserved for the most egregious misconduct. Judicial remedies for prosecutorial misconduct — such as dismissal of charges or reversal of conviction — are available but require proof of prejudice and are infrequently granted. Conviction integrity units, established in some prosecutor's offices, review past convictions for potential errors.

Research has documented racial and socioeconomic disparities in charging and plea decisions. Studies have found that similarly situated defendants of different races receive different charging decisions and plea offers, though the causes of these disparities are contested. Some researchers attribute them to implicit bias; others point to structural factors such as the concentration of prosecutorial resources in high-crime areas, differences in prior records, and the influence of victim characteristics on charging decisions.

Lafler v. Cooper, 566 U.S. 156 (2012).

Missouri v. Frye, 566 U.S. 134 (2012).

United States Sentencing Commission. (2017). Demographic Differences in Sentencing: An Update to the 2012 Booker Report. https://www.ussc.gov/research/research-reports/demographic-differences-sentencing

Rakoff, J. S. (2014). Why innocent people plead guilty. New York Review of Books, 61(18).

Pfaff, J. F. (2017). Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. Basic Books.

Innocence Project. (2023). Understand the Causes: False Confessions/Admissions. https://innocenceproject.org/understand-the-causes-false-confessions-admissions/