Prosecutorial discretion is one of the most important aspects of our criminal justice system. It affords district attorneys a tremendous deal of power. Prosecutors can choose not to prosecute a crime for which someone is arrested. They can decide to pursue less serious charges. They can offer plea bargains, including reduced or deferred sentences.
This summer, there have been two cases that illustrate the respective benefits and disadvantages of prosecutorial discretion. In Rockingham County, District Attorney Phil Berger Jr. used prosecutorial discretion to good effect last week. But Wake County District Attorney Colon Willoughby used prosecutorial discretion in a way that undermined – not promoted – justice.
A Reidsville man woke up when the alarm at his business next door went off. The man grabbed his shotgun and went outside, where he found two men stealing rolls of copper wire from his business. The man ordered the thieves to stop. One of them charged him, so the man shot him. District Attorney Berger announced that he would not press charges against the business owner. This makes perfect sense, especially in the context of the shooting “victim”: The man shot by the business owner had 35 prior convictions. The district attorney was apparently satisfied that the shooting was a clear-cut act of self-defense that did not warrant a lengthy and expensive trial. This is an appropriate use of prosecutorial discretion: Berger’s actions were prudent, cost-effective, and posed no threat to public safety or order.
By contrast, Colon Willoughby seems to have a different idea about prosecutorial discretion. As the District Attorney for Wake County, Willoughby is responsible for handling the “Moral Monday” protesters arrested this summer at the General Assembly. He has been woefully inept. Willoughby urged police officers not to arrest protesters, and even attacked Chief Jeff Weaver of the General Assembly Police. Willoughby then went on to offer arrestees 25 hours of community service and $180 in court costs – hardly even a slap on the wrist. Willoughby’s use of prosecutorial discretion probably will save money: Trials are expensive propositions. But Willoughby could have – and should have – pushed for much stronger sanctions. By failing to do so, he sent a message to future protesters that there are hardly any consequences for breaking the law. That in turn could lead North Carolina down the dark path of Texas or Wisconsin, where violent and disruptive protests have become increasingly common.
Prosecutorial discretion is an important and valuable part of our criminal justice system. There are certainly misuses of this substantial power. But the answer is not to dismantle prosecutorial discretion – that would, to use the old expression, “throw out the baby with the bathwater.” Rather, voters should hold their elected District Attorneys accountable for their actions.