Let’s say a father finds out a creepy 30-something year old raped his daughter.
So he finds out where the guy lives and shoots him dead in his own home. (clearly premeditated)
The DA then discovers the man in question has a previous rape conviction.
Can the DA say “Fuck it. I’m not going to charging this father with a crime”?
There is plenty of discretion. A prosecutor so inclined could decide not to press charges against your hypothetical father. In some states, prosecutors serve at the pleasure of the governor, who can replace the prosecutor if the governor dislikes how the prosecutor is using discretion. In other states, prosecutors are elected, so voters can decide whether the prosecutor is using discretion appropriately. For a crime like murder, where in many (most? all?) states there is no statute of limitations, a later prosecutor could decide to prosecute even if an earlier prosecutor declined.
There have been some historical abuses of prosecutorial discretion. For example, lynch mobs weren’t charged by white prosecutors for murdering black people. Here’s a good law review article on the topic. [PDF] The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion | Semantic Scholar
In some states, the governor or attorney general can effectively reassign a case if he disagrees with the assigned prosecutor’s decisions. For example, Rick Scott reassigned a number of capital cases to another state attorney’s office after Orange County SA Aramis Ayala announced she would no longer seek the death penalty.
(not sexually related) in SF years ago, a bicyclist killed an elderly Asian pedestrian. There was witnesses, evidence, even admission, but DA refused to prosecute because victim’s family didn’t want to prosecute, regardless of DA’s duty to charge for all crimes
I think I remember this case and that, as opposed to not prosecuting, the DA actually arranged a plea agreement whereby the cyclist received probation. Partly because the family wanted him to have and keep a job, so they could then sue him. But that has to be weighed against just how much prison time you would expect a bicyclist to get for a fatal cycling accident to begin with. Distracted drivers even manage to avoid prison sometimes.
Probably a bad idea. Maybe this father got the right guy, and maybe he didn’t. But even if he got the right one, the next person in that situation may well go shoot somebody who’s innocent.
So even if they can not prosecute, I hope it doesn’t happen very often.
Should the jury convict, and if so for pre-meditated murder instead of for some lesser charge; and if convicted, should the judge impose much of a sentence? Those are two separate questions.
[Moderating]
“Can the DA do this?” is a factual question. “Should the DA do this?” is not.
OK, sorry. Will try to pay more attention to what forum I’m in.