Prosecutorial Discretion: What It Is and Why It Matters in a Constitutional County

Prosecutorial Discretion: What It Is and Why It Matters in a Constitutional County

By Attorney Greg Todd | November 1, 2023

As many know, the Ottawa County Board of Commissioners passed a Resolution in May of 2023, declaring Ottawa County,  Michigan a Constitutional County. The Resolution passed 9-1, with a Republican majority, and the lone Democrat voting against. *Since that time however, there have been many arguments against the credibility of this Resolution.

The more persuasive arguments against it go something like this: local officials, (such as our sheriff or prosecutor), do not have the authority to decide which laws to enforce without upsetting the balance of powers. The argument usually concludes with a hardline statement that the authority to make these decisions lays solely with the Courts.

What makes these arguments seem compelling is that they “sound like” true statements. Nevertheless, this line of argument is easily disposed of if we understand the concept of discretion. While all law enforcement agencies have very broad discretion when it comes to the performance of their duties, for our efforts here, I will focus on prosecutorial discretion.

To begin, let us first examine what a prosecutor is.

According to our Court of Appeals, “The prosecutor is a constitutional officer whose duties are provided by law. He is the chief law enforcement officer of the county from which he is elected, not the police, the newspapers, or the courts. As the civilian head of the county's law enforcement efforts, the final decisions are his, and in the end, it is he who must accept the responsibility for his decisions at the polls.”

The Court further explains that “Consistent with this role, prosecuting attorneys have discretion in Michigan to choose under which of the several potentially applicable statutes a prosecution will be instituted.” 

This discretion is completely in accord with the US Constitution. In fact, the US Supreme Court has specifically held, “In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”

As you can easily see, prosecutors have a tremendously wide range of discretion in deciding whether to charge a person with a crime.

Prosecutors may consider a variety of factors when exercising their discretion, including the strength of the evidence, the seriousness of the offense, the defendant's criminal history, and the defendant's personal circumstances. 

Not only this, but additionally, Prosecutors may also consider the impact of a prosecution on the community, the resources that would be required to prosecute the case, and—of course—politics.

It is also important to understand, there are also strong public-policy interests in allowing prosecutors to exercise their discretion. For example, prosecutorial discretion allows prosecutors to focus channel the resources of their limited time and financial resources. This helps to ensure that the criminal justice system is not overwhelmed by a flood of minor cases. 

Prosecutorial discretion can also be used to ensure that justice is served in individual cases, as when prosecutors decide not to charge a person with a crime if the person has a strong alibi or if the crime was committed in self-defense. It also promotes fairness, as when a prosecutor decides not to charge a person with a crime if the person is from a disadvantaged community, or if the person has a mental illness.

Considering all of these facts, my professional, legal opinion on the Resolution passed by the OC Board of Commissioners is that it is simply calling on our local law enforcement officials to use their discretion in such a manner as to conform to the values of the party that they claim to represent. 

Sheriff Steve Kempker and Ottawa County Prosecutor candidate Sarah Matwiejczyk state that they are Republicans.  I encourage all Republicans to reach out to these representatives directly to ask them their position on this Resolution. In Michigan, Democrats are attacking our liberties on a daily basis and we can't afford milquetoast officials.