Insight into Prosecutorial Discretion in Georgia

The Georgia Criminal Process is overwhelming and can be challenging to understand. As a Georgia Criminal Defense Lawyer, I believe it is crucial for people to be allowed to better understand Georgia Criminal Law as well as their rights.

Most people believe that they will never be arrested. According to one of the most recent crime statistic reports by the Georgia Bureau of Investigation, there were over 55,000 arrests in 2017 in the state of Georgia. Contrary to popular belief,  arrests happen to all different types of people. Being arrested for a crime is one of the most horrific and humiliating experiences. This is where we step in. We understand the differences between crimes and know how best to defend them.

There are many different moving pieces in the criminal justice system. As a firm of criminal defense attorneys, we represent those individuals who have been accused of committing crimes. On the other side, there are prosecutors - those who are responsible for conducting the criminal case against those individuals on behalf of the city, county, or state. The majority of people underestimate the power that a prosecuting attorney holds, and in today's post, I will outline the importance of prosecutorial discretion in our criminal justice system in Georgia.

Prosecutorial Discretion in Georgia

Prosecutorial discretion refers to the power of prosecutors to decide whether or not to charge a particular person and which charges to file. This power also includes the authority to offer and enter into plea bargains in Georgia.

Furthermore, prosecutorial discretion allows prosecutors not to file certain charges, to drop charges or to offer a plea deal. For instance, if the facts and evidence of a case show that a homicide offense was made in self-defense in Georgia, the prosecutor may reduce the charges from murder in Georgia to involuntary manslaughter in Georgia or may even drop the case.

One of the reasons, prosecutorial discretion is so important to understand because just because a crime occurred doesn't mean that the prosecutor has to file charges. Prosecutors also have the power to decide which charges to file and the severity of the sentence to seek. When making these decisions, prosecuting attorneys consider both the strength of the evidence as well as what the fairest charge should be.

Given the current political state in Georgia, I would like to focus in on an example of prosecutorial discretion regarding the Living Infants Fairness and Equality (LIFE) Law. There is a great deal of misinformation spreading about what charges can result from violating this new law. I write all of this regardless of anyone's views on abortion and regardless of any political stances.

The LIFE Law states:

It shall be the policy of the State of Georgia to recognize the presence of a fetal heartbeat as the point of “fetal viability,” creating a compelling state interest to protect “the independent essence of the second life” as an “object of state protection” from abortion; and it shall be the policy of the State of Georgia to recognize unborn children as natural persons.

This means that a natural person in the state of Georgia now includes any human being - including an unborn child (including embryos and fetuses after 6 weeks).

Now, you must be wondering how prosecutorial discretion fits in here to this controversial topic. Many district attorneys have come forward regarding their opinions and their stances on the law. Leaning hard on the side of broad prosecutorial discretion, Macon District Attorney David Cooke has come out this week saying that he will not be prosecuting women or their physicians for abortion services despite the new law that imposes criminal liability.

“I will exercise my discretion not to prosecute women and doctors for exercising their constitutional rights,” Macon District Attorney David Cooke said this past Tuesday. “It's unfortunate that this law may turn a miscarriage into a crime scene, and I will not allow that to happen on my watch.”

From the opposite viewpoint, Douglas County District Attorney Ryan Leonard has also come forward this past week stating his concerns about the law. “I think it's improper to say I'll never prosecute anybody under the law,” Douglas County DA Ryan Leonard said. “We don't have the luxury to say, ‘I don't like this law, and I'm not going to enforce it.'”

Practice Note

The topic of prosecutorial discretion reveals the ongoing battle between branches of government. Here we can see the contrast between prosecutors who are unwilling to use their power to bring cases such as those mentioned above forward versus the limitation of that power by the mere language of the law.

As a Georgia Criminal Defense Attorney and regardless of my political views, the language of the new LIFE Law in Georgia can lead to a lack of prosecutorial discretion in my opinion. From just the language, a person could be charged as violating the law or as a party to a crime in Georgia for this new law if: he or she directly commits the crime; indirectly causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; intentionally aids or abets in the commission of the crime; or intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

The most important thing to to take from this discussion is that electing prosecutors who have good values and integrity is extremely important.  The decision to choose whether to prosecute is an awesome responsibility. Making the right decision is sometimes difficult.  Additionally, it is important to elect legislators that understand that the actual language of the laws they pass truly matters.  Prosecutorial discretion is sometimes a function of inartfully written laws that are open to interpretation.

If you or a loved one has been arrested, contact our offices today. We can help you now.