Prosecutorial Discretion: The Wrong Way on a One-Way Street

Prosecutors have a lot of power. We saw a pretty obvious example of the power of prosecutorial discretion earlier this year when Shelby County District Attorney General Amy Weirich blamed Pamela Moses’ decision to exercise her right to trial for a six-year prison sentence. “I gave her a chance to plead to a misdemeanor with no prison time,” Weirich said. “She requested a jury trial instead. She set this unfortunate result in motion and a jury of her peers heard the evidence and convicted her.”

The message Weirich sent is as clear as it is troubling. I’ll give you a “chance” if you accept my offer, the prosecutor says, but you’ll pay the price if you don’t. It’s honestly wild to put in writing. And, in a practical sense, the consequences are frightening. For Moses, the difference was six years. Had she accepted the “chance” offered by the prosecutor, she wouldn’t have spent any time in prison. But, because she didn’t, Moses faced a six-year prison sentence instead (a sentence that a judge eventually overturned for prosecutorial misconduct).

What’s extraordinary about the prosecution of Pamela Moses, though, is that nothing about the crime she allegedly committed dictated the length of her sentence. Instead, her sentence depended entirely upon prosecutorial discretion. If she did what the prosecutor wanted, she didn’t have to go to prison. But, if she didn’t, she’d be there for six years. Of course, for Moses, this six-year disparity had no public-safety ramifications because Moses wasn’t actually dangerous (which raises the obvious question why taxpayers would pay to incarcerate her in the first place).

The prosecution of Pamela Moses demonstrates the power of prosecutorial discretion.

The prosecution of Pamela Moses demonstrates how powerful prosecutorial discretion really is. Moses could not vote in Tennessee because of a prior conviction that involved tampering with evidence. Moses explained that no one ever mentioned anything about not voting, being able to vote … none of that.” Officials should have removed Moses from the voter rolls at that time, but they didn’t. And that mistake led Moses’ probation officer, not Moses herself, to fill out and sign a certificate that she submitted with her voter registration form.

Yet, if it wasn’t for Moses’ work as a Black Lives Matter activist and other activists’ efforts to get local and national media outlets to cover Moses’ prosecution, her six-year sentence may not have ever seen the light of day. But, once it did — and, perhaps more importantly, once it was compared to the light sentences of several white male individuals who fraudulently voted on behalf of dead relatives for Republicans — public pressure eventually won the day. Then, as indicated above, a court overturned Moses’ six-year sentence, and prosecutors declined to take the case to trial again.

Even after that media attention, however, Weirich, the DA who prosecuted Moses and touted the prosecution as an accomplishment, didn’t face any media pushback. Instead, she blamed the Tennessee Department of Corrections for the judge overturning Moses’ conviction. “The Tennessee department of correction failed to turn over a necessary document in the case of Pamela Moses and therefore her conviction has been overturned by the judge,” Weirich said. “When reporters or political opportunists use the word ‘state’ they need to be crystal clear that the error was made by the TDOC and not any attorney or officer in the office of the Shelby county district attorney.”

When prosecutorial discretion goes the other way, however, the narrative is different.

It’s worth noting that Weirich recently lost her reelection bid for Shelby County District Attorney General. But, beyond that delayed accountability that likely had almost nothing to do with Moses’ case specifically, no politicians or media outlets persuasively pushed Weirich out of office. In the big picture, that might be a good thing. Voters elected Weirich. And, while you can certainly criticize her motivations in Moses’ case, politically charged power grabs — even if done for the right reason — erode the already-eroded faith Americans have in our country’s criminal justice system.

Unfortunately, that same restraint doesn’t exist when prosecutors exercise prosecutorial discretion in the opposite direction. For instance, when former Hillsborough State Attorney Andrew Warren exercised his prosecutorial discretion to decline to prosecute people involved in abortions and gender-affirming care, Florida Governor Ron DeSantis intervened via executive order and removed Warren, the elected local prosecutor, from office. Warren has filed a lawsuit seeking to stop the power grab. But, for now, the governor from Tallahassee has taken over the prosecutor’s office from the official voters elected.

In a similar vein, big donors also recently led a successful effort to remove Chesa Boudin, the former San Francisco District Attorney who used to be a public defender, from office after he exercised his prosecutorial discretion to address racial disparities in policing and prosecution, reduce incarceration, lower penalties for low-level offenses and hold police accountable. But, after a $7 million recall campaign spear-headed with around $4.8 million from Neighbors for a Better San Francisco, voters recalled Boudin. Brooke Jenkins, a consultant Neighbors for a Better San Francisco paid more than $100,000 during the recall campaign, replaced him.

Efforts to hold prosecutors accountable drown in a sea of politics and clickbait.

It’s easy for the conversations around these stories to veer off the path. For Pamela Moses, the narrative shifted from a prosecutor boasting about punishing someone for exercising their right to trial into a conversation about a disparity in treatment between Democrats and Republicans and Black voters and White voters. Warren’s removal has turned into a high-profile Republican-versus-Democrat power struggle. And Boudin’s recall has been dominated by media-driven fears about how dangerous it is in a city where you have to be worth $5.1 million to be considered “wealthy.”

These conversations are obviously important. But prosecutors all over the United States exercise their discretion everyday. In this country, more than 9 out of every 10 people charged with a crime plead guilty. And, while many media outlets are blasting criminal justice reform for rising violent-crime rates, actual data is painting a completely different picture. Even this week, the NY Post published a scary-looking story about how dangerous it is in Nassau County. “87 percent of suspects arrested in NY’s Nassau County freed without bail: cops,” the headline warns.

But if you actually read the article (or the report it’s based on), you’ll learn that out of the 2,641 people released without bail in April, May and June, only 195 were re-arrested, leading to a recidivism rate of only 7 percent. And of that seven percent, we don’t even know how many were actually guilty or convicted. But it’s not just right-wing outlets like the NY Post helping this narrative grow. As this op-ed points out, even the New York Times and NPR struggle to accurately report the actual data. And, until media outlets step up to the challenge, the narrative around prosecutorial discretion will continue heading the wrong way down a one-way street.