Prosecutorial discretion is the legal doctrine giving prosecutors broad authority to use their own judgment on whether to file charges against a defendant and how to move forward litigating a case, within constitutional limits. The Supreme Court clarified prosecutorial discretion in Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978), stating “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 bring before a grand jury, generally rests entirely in [the prosecutor’s] discretion.”
Prosecutors can use their discretion to decide whether to file criminal charges, negotiate plea agreements, diversion agreements, immunity, and sentencing recommendations. Prosecutors will weigh factors such as the available evidence, seriousness of the crime, defendant’s criminal record, mitigating factors, and the likelihood of conviction as part of their discretion.
Prosecutorial discretion must still adhere to due process and equal protection requirements when deciding to pursue criminal charges. Furthermore, prosecutors cannot engage in selective prosecution, or charges based on unconstitutional discriminatory standards, like race or religion, instead of the legal merits of a crime. Additionally, prosecutorial discretion does not permit vindictive prosecution, or bringing charges because the defendant exercised their legal right, such as an appeal.
See also: Congressional Research Service – Federal Prosecutorial Discretion: A Brief Overview
[Last reviewed in June of 2026 by the Wex Definitions Team]