There is a certain type of criminal defendant that doesn’t—maybe shouldn’t—have any chance whatsoever. Their conduct is undisputed, and so reprehensible, so disturbing, that no prosecutor can possibly keep a totally open mind in choosing to bring the most onerous charges against them. The weight of public opinion and, more important, the facts, are so heavily against them that any prosecutor who has them in their crosshairs simply can’t be fully objective, as we ideally might expect them to be. Think Jeffrey Dahmer, Ted Kaczynski, El Chapo, John Gotti, Osama bin Laden.

While this type of defendant is rare, he or she does surface every now and again. We trust that our prosecutors will resist public outcry and decide whether to bring a case with total objectivity and professionalism. In theory at least, we want the prosecutor to exercise the same degree of “prosecutorial discretion”—which often favors a criminal target—as if the target were some random nobody. That random nobody deserving as much prosecutorial discretion as the guy who is armed with a high-powered defense lawyer; maybe even a lawyer who recently emerged from the U.S. attorney’s office.

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