Prosecutorial discretion is the power of prosecutors to decide whether, whom, and how to charge. It is the most consequential structural feature of the American legal system from a sociological perspective, because it determines which social conflicts enter the legal apparatus at all. The vast majority of potentially prosecutable conduct is never charged. What gets prosecuted is a product of institutional priorities, resource constraints, political pressures, and — crucially — the categories through which prosecutors perceive the social world.
Discretion operates as a filtering mechanism that is neither random nor neutral. Communities that are already legible to the state — whose activities are documented, surveilled, and categorized — are more likely to have their conflicts processed through the legal system. Communities that operate through informal, relational, or non-institutional channels are less visible to prosecutors, which can mean either protection through obscurity or vulnerability through lack of legal standing when conflicts arise.
The exercise of discretion also shapes what kinds of evidence become standard. When prosecutors in a given domain routinely present certain types of institutional practice as relevant — community programs, publications, partnerships — defense attorneys must respond in kind, and institutions must prepare accordingly. Prosecutorial patterns thus generate institutional behavior at a distance: organizations modify their practices not because a law requires it but because the pattern of prosecution creates an ambient evidentiary expectation. The prairieland trial illustrates this dynamic — the prosecution’s decision to treat zine production as relevant evidence created an incentive structure that extends well beyond the specific case.
In this sense, prosecutorial discretion is a form of governmentality: it governs not by commanding specific behaviors but by establishing the conditions under which certain behaviors become prudent, expected, or risky. The prosecutor doesn’t tell institutions to produce zines; the prosecutor’s evidentiary choices create a landscape in which producing zines becomes institutionally rational.
Related terms
- Adversarial procedure — the contest structure that prosecutorial discretion initiates
- Character evidence — the evidentiary form that prosecutorial patterns standardize
- Governmentality — the mode of power that operates through environmental conditioning
- Surveillance — the technology that makes communities legible to prosecutors
- Legibility — the state’s capacity to perceive, which discretion depends on