Prosecutorial Discretion

What You Need to Know About Prosecutorial Discretion in Post-Roe Georgia

You have likely heard the news that, with its decision in Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court has overturned the landmark case of Roe v. Wade. The case prevented states from regulating abortions in many circumstances and stood as binding precedent for 50 years. 

So what happens now? The short answer is that it depends on where you live. Several states had “trigger laws” in place. Trigger laws are laws that are “triggered” by another circumstance. In this case, they were triggered by the repeal of Roe v. Wade. Now, states may regulate abortion as they (or their legislatures, at least) see fit. 

Georgia does not have a trigger law, but in 2019 it passed House Bill 481, which banned abortion after six (6) weeks except in a few limited situations. The law, also called the LIFE Act, has stalled in the 11th Circuit Court of Appeals, temporarily preventing the law from taking effect pending the Supreme Court’s ruling in Dobbs. In upholding the stay from the 11th Circuit, the Court of Appeals reasoned that the Supreme Court’s decision in Dobbs could determine the legality of the Georgia law. Georgia government officials are urging the 11th Circuit Court of Appeals to lift the stay and allow the law to take effect now that Roe v. Wade has been overturned. 

So what happens if this law does take effect? While some aspects of the law are murky and future litigation is likely, the law defines a fetus as a person. Presumably, then, a person who terminates a pregnancy will be subject to criminal charges (including murder, possibly). 

However, prosecutors from seven jurisdictions in Georgia have signed a letter indicating their intention to “refrain from prosecuting those who seek, provide, or support abortions.” 

The letter reads, in part: “Not all of us agree on a personal or moral level on the issue of abortion. But we stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions.” 

Prosectors from these jurisdictions signed the letter: DeKalb County, Augusta Judicial Circuit, Gwinnett Judicial Circuit, Chatham County, Macon Judicial Circuit, Western Judicial Circuit, and Douglas County. Fulton County District Attorney Fani Willis has also indicated that she will not use “precious tax dollars” prosecuting abortion cases.

“But Kevin,” you may ask, “isn’t a prosector’s job to bring charges against anyone who breaks the law?”

Not exactly. Why? Because of a concept called prosecutorial discretion. Keep reading to learn more about prosecutorial discretion and how it works in the context of Georgia criminal cases.

Why does prosecutorial discretion exist? 

In the United States, we have an adversarial system of justice. This means that, in a court case, there are generally two sides that work in opposition to each other. In a trial, both sides present the facts and legal arguments most favorable to their case. They also try to poke holes in the facts presented by the other side.

In theory, this adversarial system allows the jury to hear a complete picture of what happened. The jury can then make an educated choice on whether to acquit or convict a criminal defendant.

So who are the “parties” in a criminal case? The defendant is one of the parties. Defense lawyers represent the defendant. A defense lawyer’s job is to represent their client. They ensure that the police respect their client’s rights during an investigation. At trial, they advocate for their client’s position by presenting evidence in the form of witness testimony. They also cross-examine the State’s witnesses.

On the other side, prosecutors represent the government. In federal courts, prosecutors represent the federal government. State prosecutors represent the State. 

Functionally, prosecutors do many of the same things that defense lawyers do. In court, they present evidence through witness testimony and cross-examine the defense’s witnesses.

However, because the prosecutor represents the State, their job is not perfectly analogous to the defense attorney’s job. Instead, their “duty is to seek justice, not merely to convict.” They are urged to “make decisions in the public’s interest.” See State v. Wooten, 273 Ga. 529 (2001).

What discretionary decisions can prosecutors make?

In American courts, therefore, prosecutors have broad authority. They have the power to decide:

  • Whether to file charges,
  • What charges to file,
  • Whether to maintain charges,
  • Whether to reduce charges during plea negotiations, and
  • What sentence to ask the court for during sentencing proceedings.

See, for example, State v. Perry. In that case, the Georgia Court of Appeals wrote: “In the district attorney’s [or solicitor-general’s] role as an administrator of justice, he or she has broad discretion in making decisions prior to trial about whom to prosecute, what charges to bring, and which sentence to seek.” State v. Perry, 261 Ga.App. 886, 887 (2003).

To file, or not to file?

Prosecutors may decide whether to file charges in a case. The American Bar Association provides some clarity on this concept. In the Fourth Edition of the Criminal Justice Standards for the Prosecution Function, the ABA provides: 

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.”

Even if there is evidence to support criminal charges, the prosecutor is not obligated to file charges. Individual jurisdictions may develop standards for applying prosecutorial discretion. Some have adopted the ABA’s Criminal Justice Standards for the Prosecution Function, which list the following factors that can influence a prosecutor’s decision:

  • The strength of the case;
  • The prosecutor’s doubt that the accused is in fact guilty;
  • The extent or absence of harm caused by the offense;
  • The impact of prosecution or non-prosecution on the public welfare;
  • The background and characteristics of the offender, including any voluntary restitution or efforts at rehabilitation;
  • Whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or the offender;
  • The views and motives of the victim or complainant;
  • Any improper conduct by law enforcement;
  • Unwarranted disparate treatment of similarly situated persons;
  • Potential collateral impact on third parties, including witnesses or victims;
  • Cooperation of the offender in the apprehension or conviction of others;
  • The possible influence of any cultural, ethnic, socioeconomic or other improper biases;
  • Changes in law or policy;
  • The fair and efficient distribution of limited prosecutorial resources;
  • The likelihood of prosecution by another jurisdiction; and
  • Whether the public’s interests in the matter might be appropriately vindicated by available civil, regulatory, administrative, or private remedies.

Quoted directly from Standard 3-4.4: Discretion in Filing, Declining, Maintaining, and Dismissing Criminal Charges 

What charges to file

The prosecutor may also decide what charges to file. See, for example, Grimsley v. State. In that case, the Georgia Court of Appeals wrote that “the decision of…what charges to file are decisions that rest in the prosecutor’s discretion.” Grimsley v. State, 233 Ga.App. 781 (1998).

Sometimes, multiple criminal offenses can apply to the same behavior, and the prosecutor has to use discretion to decide which statute to apply.

Here’s an example:

Say a case comes across a prosecutor’s desk. A person punches another person in the nose, causing bleeding. The victim never goes to the hospital and doesn’t file a report until weeks later, when they are mostly healed. But he says he’s pretty sure the punch broke his nose. There are witnesses to the incident who saw the victim with a bloody nose after the incident.

Now, in Georgia, we have a Battery statute and an Aggravated Battery statute. A notable difference between the two is the severity of the injury caused by the defendant’s behavior. For a Battery, the State has to prove that the defendant’s actions resulted in physical harm perceptible by another person. This can be a black eye, a swollen lip, etc. In an Aggravated Battery case, the injury is much more severe, including “serious disfigurement.” But the damage doesn’t have to be permanent. 

The prosecutor would have to decide how to charge this case. They can probably prove a Battery – witnesses saw the incident, and the victim had a bloody nose afterward. But can they prove an Aggravated Battery? There’s caselaw that says that breaking someone’s nose can be an Aggravated Battery. But can the prosecutor prove that the victim’s nose was broken? 

The prosecutor would have to weigh all the evidence, including witness testimony and statements of both the victim and the alleged perpetrator. How credible are all the witnesses? Are they biased for or against one of the individuals? 

All these things would factor into the prosecutor’s decision, and they would use discretion in deciding which charges to file.

Whether to keep fighting a case

Sometimes circumstances change after the prosecutor files a case, and the prosecutor has to decide whether to keep pursuing a conviction. This can happen for a few reasons. 

Here’s an example.

A good defense lawyer doesn’t just rely on the evidence the State gives them during the discovery process. Instead, they do their own investigation. Sometimes they uncover details that the police missed during their original investigation. Say, for example, they find a witness that gives the defendant an airtight alibi. Depending on the defense’s strategy, they may choose to present that evidence to the prosecutor. The prosecutor then has to decide whether to proceed with the case. They have evidence of the defendant’s innocence. If they think the evidence is compelling, they may drop the case. 

Another situation where this can come up is after a motion to suppress.

Motions to suppress evidence are key tools in a defense attorney’s arsenal. In cases where police misconduct led to the discovery of evidence, motions to suppress are essential. These come up a lot in drug cases.

Read more about motions and where they fit in a criminal case in my blog post here.

In a hearing on a motion to suppress, the defense attorney argues that evidence was illegally or unconstitutionally obtained. If the judge agrees, they may deem the evidence inadmissible. The prosecution cannot use it at trial. 

Then the prosecutor has to decide: can they prove the case with the evidence that remains? Sometimes the answer is yes. Other times, such as a case where the main piece of evidence is thrown out, the answer is no. 

If that happens, the prosecutor may dismiss the case.

Reducing charges during the plea process

Especially when a good Criminal Defense Attorney is involved, prosecutors routinely reduce charges during the plea negotiation process.

This can happen for many of the same reasons discussed above. Maybe the defense attorney points out a flaw in the prosecutor’s case that might make it more difficult for the prosecutor to win at trial. As time goes on, evidence can deteriorate or go missing. Witnesses move away, die, or otherwise become unavailable. Or it could come down to resource management – the prosecutor may have bigger fish to fry, as the saying goes. (As noted above, this is the reason cited by the Georgia District Attorneys who have vowed not to prosecute people who terminate pregnancies in Georgia).

These are just a few reasons prosecutors reduce charges or agree to allow a defendant to only plead guilty to a lesser offense in a charging document. A zealous Criminal Defense Lawyer can play a big part in making this happen.

Check out my Avvo page to read reviews written by clients whose charges got reduced during plea negotiations.

Sentencing recommendations

Ultimately, sentencing is up to the judge. However, there are a few situations where prosecutors make sentencing recommendations, and prosecutorial discretion plays a role in those situations.

Pre-conviction, the prosecutor’s sentencing recommendations factor into plea negotiations. Prosecutors have discretion over their plea offers. As long as they stay within the range of possible sentences written into the law by the legislature, they have wide latitude. They can ask for a more or less severe punishment based on a host of factors, including (but not limited to) the victim’s wishes, whether the defendant cooperated with law enforcement, or the strength of the case. Depending on the policies of the particular office, they can often modify their offers based on negotiations with defense attorneys. 

Prosecutors also make sentencing recommendations after the defendant is convicted, either due to a plea or because they were found guilty by a jury.

For example, a blind plea is when the defendant agrees to plead guilty, but the State and the defense cannot agree to a sentence and leave it up to the judge to decide. After the defendant enters his plea, the defense and the prosecution tell the judge what they think an appropriate outcome should be. The judge may take either recommendation, somewhere in the middle, or neither. 

After a trial, sentencing recommendations work in much the same way, with both sides making suggestions and the judge ultimately deciding how to sentence the defendant.


If I’ve made it sound like prosecutors have a lot of power, that’s because they do. But a good Criminal Defense Attorney has a lot of tools at their disposal as well. Charged with a criminal matter in Georgia? Call me today at 404-403-2665.

Read More

Bruce Frederick, Don Stemen, The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making – Summary Report, Vera Institute of Justice, December 2012,

DeKalb District Attorney Won’t Prosecute Georgia’s Abortion Law

How The Supreme Court Killed Roe v. Wade (by LegalEagle on YouTube)

Some Georgia DAs pledge they will not prosecute abortion crimes

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