The Unchecked Charging Power of the Prosecutor
When Florida special prosecutor Angela Corey charged George Zimmerman with second-degree murder this week in the February shooting of 17-year-old Trayvon Martin in Sanford, the charge won praise from Martin’s supporters and more skeptical reactions from some legal commentators.
The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.
In the 22 states that require a grand jury indictment before charging, the grand jury standard is a preponderance of the evidence, although grand juries are sometimes notorious for rubber-stamping a prosecutor’s wishes.
But without a grand jury, a prosecutor’s charging power is entirely discretionary.
Once charged, a suspect often needs to hire expensive legal representation or, if he can’t afford it (and there aren’t many people who can pay for representation on a murder charge), request a public defender. It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.
A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor’s. And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they’re performing a prosecutor’s duties, they can’t be sued.