The most important part of criminal law doesn’t appear in any statute book or textbook. It’s not even a formal “law” at all. It’s the concept of prosecutorial discretion, and it is at the heart of our justice system — as the pursuers of Casey Anthony and Dominique Strauss-Kahn have discovered.
Criminal laws are written in ways that leave prosecutors a great deal of leeway. Do they bring a case at all? If so, when? And when that moment arrives, what charges do they put before a jury? In both of these high-profile cases, the prosecutors made decisions that raise important questions about their judgment.