Prosecutorial Discretion Is Grounded in Law Article
Date of Publication:
Recommended Citation
Ellen S. Podgor, Prosecutorial Discretion Is Grounded in Law, 30 Berkeley Journal of Criminal Law 225 (2025)Clicking on the button will copy the full recommended citation.
This Essay examines prosecutorial discretion by building on DA Kimberly Foxx's discussion of who holds this power, while adding critical questions about what discretion actually is and when it crosses into misconduct. Argued here is that while prosecutors are entitled to significant discretionary authority grounded in law, this discretion is not unlimited—prosecutors are not above the law. The fundamental challenge lies in distinguishing between lawful prosecutorial discretion and unlawful prosecutorial misconduct, both of which are defined by law.
The essay explores the expansive powers granted to prosecutors, with particular emphasis on their authority to bring criminal charges—a power with a unique constitutional status that remains unchecked by many constitutional protections extended to defendants, particularly the grand jury requirement which has never been incorporated to apply to the states. While acknowledging that prosecutorial powers are extremely broad, the author's core argument is that law provides clear boundaries distinguishing legitimate discretionary power from misconduct. Recognizing these limits does not infringe on prosecutors' rightful authority; rather, it establishes the legal framework within which their discretion properly operates.