Laws can sound as sure and unavoidable as math problems with one right answer for every question and there’s no arguing about it. But if you’re arrested, North Carolina police, prosecutors and judges can use their “discretion” at many points in the process.
Legal discretion is the power to make decisions based on opinion and your sense of the situation. Somebody else or the same person under difference circumstances might make a different decision. Discretion matters and can often be discussed, so defense attorneys, witnesses and arguments may make a difference in your outcome.
Prosecutors in North Carolina can often make decisions about which crime to charge you with, or whether to charge you at all. Setting aside certain facts and interpreting others differently might mean the difference between a mid-level misdemeanor or significant felony.
Prosecutorial discretion is much debated, and some argue it’s used too easily in some situations and not enough in others. Some say discretion allows racial or other discrimination to disadvantage people unfairly, for example, or for better or worse it may allow a suspect’s personal and social challenges to affect the punishment meted out. Certainly, an advocate who understand what’s at stake and the range of available alternatives is often essential to have on your side.
Judges have even greater powers to exercise discretion in North Carolina. It’s well known, largely thanks to movie and TV dramas, that judges allow or disallow certain facts, testimony and questions in a courtroom.
Less often dramatized is sentencing discretion, where judges can sometimes choose fines and prison time for the standard (“presumptive”) form of a crime such as battery, or for the mitigated or aggravated (less or more serious) forms. The difference might mean no jail time or years in prison.
Among the many other ways North Carolina judges exercise discretion in expunging, expunction or wiping clean (they all mean the same thing) certain marks on your criminal record. The law allows expunctions of certain convictions once the convicted person has satisfied a specified set of conditions. After these are satisfied, the court may have discretion in whether to erase the conviction from your criminal record as if it never happened.