The Aaron Swartz case has raised a firestorm of criticism about the use of prosecutorial discretion. The gist of most of it has been that prosecutors routinely use "draconian" sentencing (have you ever heard of any other kind?) to extort guilty pleas from innocent people -- or, if not innocent exactly, mostly innocent. These "overzealous" prosecutors (have you ever heard of any other kind of that, either?) do this sort of thing in order (1) to tack another scalp to their office wall, or (2) get a good press release.
The reality, as anyone who actually practices criminal law knows, is pretty much the opposite. Most of the hydraulic pressure in prosecutors' offices is to handle the crush of cases as quickly and cheaply as possible. What this means is that the prosecutor more often than not gives away readily provable charges in order to get the defendant to agree to plead to a fraction of what he actually did. Then there's the lenient sentencing recommendation on top of that.
Today, I ran across a particularly noteworthy instance of prosecutorial discretion. It's about the former mayor of San Diego who swindled her late husband's charity foundation for over $2 million to finance her nearly decade-long gambling spree of a billion dollars. And yes, that's "billion," with a "b."
What was the response of the flesh-eating US Attorney's Office? It was this: No prosecution, and a quasi-love note that begins, "Maureen O'Connor was a selfless public official who contributed much to the well-being of San Diego..."
Yes, there were very significant mitigating circumstances. This is not someone you'd throw the book at. But my point is not whether this handling of the case was prudent (I have my doubts). The point is that what you typically hear about prosecutorial discretion is only one side of a very, very different story.