Prosecutorial choices can impact our local criminal legal system without any laws being changed. 

We hear and see prosecutors in the media, on tv, etc., but do we know how much they really influence our lives? Prosecutorial choices can impact our local criminal legal system without any laws being changed. 

Former United States Attorney General, Robert Jackson said that “The prosecutor has more control over life, liberty, and reputation than any other person in America.” Prosecutors are highly influential so it is important to understand their role and how voters can vote for the change they want to see in their communities. 

Ohio is made up of 88 counties. Each county has a county prosecutor whose role is to represent their community in criminal and civil proceedings.  Every office is shaped to meet their communities unique needs. This means that each office is different in size and offers different resources. County Prosecutors are elected officials and run under a party affiliation. They serve 4-year terms, and there are no term limits imposed for this office. To be able to run for prosecutor, candidates must meet three requirements: age, residency and education. Candidates must be: 

  • 18 years or older. 
  • Reside in the county in which they are running for office; and 
    • Note, for residency, there is no requirement for amount of time lived there before running.  
  • A licensed attorney able to practice in the state.  

Additionally, candidates must get petitions signed for their name to be listed on the ballot. To be listed under a major party affiliation, Democratic or Republican, candidates must gather between 50 to 150 signatures from voters, whereas minor party affiliations need between 25 and 75 signatures.

County Prosecutor’s responsibilities can be divided into three areas: litigation on behalf of individuals, litigation on behalf of the State and providing legal counsel. 

  1. The County Prosecutor is responsible for handling criminal and civil litigation on behalf of people in the county. They pursue convictions for those accused of crimes while also advocating on behalf of victims and their families. The County Prosecutor’s Office works directly with law enforcement agencies and pursues cases based on the evidence collected by law enforcement.
  2. County Prosecutor’s represent the state when the state is involved in a lawsuit.
  3. The County Prosecutor provides legal counsel to all city, township and county officials within their jurisdiction. This includes Boards and Departments within the county as well.  

Defining the Powers of the Prosecutor  

Prosecutorial Discretion: The scope of the County Prosecutor is far reaching. The office holds Prosecutorial discretion, meaning that the office decides which cases they want to pursue, and which ones they do not. The division of power between the prosecutor’s office and the police department is important because it prevents one department from holding all the power to arrest and prosecute citizens. The police department gathers evidence and decides whether to make an arrest.  The prosecutor then steps in once the arrest is made to decide if charges will be pursued.  The prosecutor’s decision is based on various factors including criminal history, motive, victim’s wishes, and the impact it would have on the community. It is the prosecutor who can also request the use of diversion programs instead of sentencing.   

While prosecutorial discretion is important to ensure community safety and justice is prioritized, it can also allow subjective practices to occur.  

Bail: While Judges determine what bail (method of pretrial release) is set at, it is prosecutors who make recommendations to judges on what should be considered. Cash bail creates a two-tiered system of justice that allows people of means to go home and those unable to pay to languish in jail. Prosecutors have the power to advocate for different methods of bail to be used. Personal bonds allow defendants to attest through a signed agreement that they will show up for scheduled hearings. Other options include GPS or electronic monitoring.  

Plea Bargain: Cases are resolved in a few different ways: plea agreement, verdict by jury, or bench trial--a proceeding where there is no jury, and the judge decides the outcome. A plea agreement happens when the prosecutor and defendant’s legal counsel come to an agreement to avoid going to trial. Utilizing plea deals allows legal counsel to avoid going to trial which can be time consuming  and costly. Plea bargains also save time and money for the courts, ensuring that not all cases brought before the court go to trial. Pleas incentivize defendants to plead guilty to a lesser charge. When a defendant is facing a lengthy sentence, plea deals may be appealing to guarantee a lesser sentence. This is troubling as we know even innocent individuals often take pleas deals to get on with their lives. While in jail you are unable to go to work, care for your family and it’s difficult to fight your case. While plea deals are designed to move cases through the courts quicker, “more than nine out of 10 cases are resolved by plea bargain.” When a plea is used, it gives the prosecutor and legal counsel all the power. Although the defendant and prosecutor enter the plea deal which acts as a contract, the judge does not have to abide by the plea or recommendations of the prosecutor. The judge will have the final say on sentencing the defendant.   That said, prosecutorial discretion can be used for good. Prosecutors also have the power to advocate for diversion programs meant to foster rehabilitation and keep the person in their community. 

Bindover: County Prosecutor’s also file charges against adults and juveniles. In Ohio, when a juvenile commits a crime, they can potentially be “boundover” to adult court.  Ohio has two types of bindovers: mandatory and discretionary. Mandatory bindovers require juveniles to be transferred to adult court based on their age and the charge they face. Mandatory bindovers can try juveniles as young as 14 as adults and transfer them to adult facilities. Discretionary bindovers can be requested by a prosecutor if the youth is at least 14 and is facing a felony charge. Judges make the ultimate decision regarding discretionary bindovers and must consider multiple factors including community safety, criminal involvement, mental health, and victim statements. However, prosecutors are the first step in a slippery slope of treating youth like adults. Sending youth to juvenile or adult prison does not promote a healthy community.  
“Contrary to expectations, youth tried in adult court reoffend more often and with more serious offenses than their counterparts in juvenile courts.” 

Bindovers not only impact youth development negatively through practices like solitary confinement, but also contribute to children in adult prison being: 

  • 5x more likely to be sexually assaulted 
  • 8x more likely to die by suicide
  • 2x more likely to be attacked by staff or other incarcerated people
  • 2x more likely to suffer from mental illness compared to adults in the system
  • More likely to reoffend and be sentenced to additional time than youth with the same crimes who remain in the juvenile system” 

Power of Political Opinions: County Prosecutors are partisan officials meaning their political stances are public and can influence how they run their office. An example of a prosecutor’s political opinion impacting their sentencing practices is their stance on the death penalty. Ohio is one of twenty-seven states that uses capital punishment. The prosecutor’s opinion on the death penalty can influence whether they pursue capital punishment sentences. In Ohio, Black or African American people make up 13.3% of our population and 55.8% of Ohio’s death row as of January 2023. In fact, the race of the victim and county of the accused, have a larger impact on whether someone might receive a death sentence than any other factors related to the offense. And we know that we get it wrong. Ohio is home to 11 death row exonerees. 

With the possibility of error and bias, it is important to know where your county prosecutor stands and how it will impact sentencing where you live.