My recent Essay, Prosecutorial Discretion Is Grounded in Law, 30 Berkeley Journal of Criminal Law 224 (2025), examines prosecutorial discretion noting that while prosecutors are entitled to significant discretionary authority, this discretion is not unlimited—prosecutors are not above the law. The fundamental challenge lies in distinguishing between lawful prosecutorial discretion and unlawful prosecutorial misconduct, both of which are defined by law.
This Essay explores the expansive powers granted to prosecutors, with particular emphasis on their authority to bring criminal charges. While acknowledging that prosecutorial powers are extremely broad, it is argued here the law provides clear boundaries distinguishing legitimate discretionary power from misconduct. Recognizing these limits does not infringe on a prosecutors’ rightful authority; rather, it establishes the legal framework within which their discretion properly operates.
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