Prosecutorial discretion generally refers to the authority of a prosecuting officer or agency (United States Attorney or state District Attorney) to decide what if any criminal charges to bring against a person or persons, and what punishment or sentence to seek. Prosecutorial discretion may also be used by a police officer, for example, in deciding whether to issue a driver a speeding citation (ticket) or a warning.

Prosecutors generally have broad authority to make such decisions—subject to the right of the citizens to remove them from office, directly or indirectly, in the voting or election process.

In New Mexico, as in other states, prosecutorial discretion is a significant aspect of the criminal justice system. This discretion allows prosecutors, such as District Attorneys, to determine whether to file charges against an individual, which charges to file, and what kind of sentence to recommend or plea bargain to offer. The scope of this discretion is broad, but it is not unlimited. Prosecutors are expected to exercise their discretion fairly and within the bounds of the law, guided by ethical considerations and the pursuit of justice. Decisions made by prosecutors should be free from discrimination, arbitrariness, or unreasonable bias. While the police also have a form of prosecutorial discretion, particularly in matters such as traffic violations, their discretion is more limited compared to that of a prosecutor. In New Mexico, the public holds prosecutors accountable through the electoral process, as they are elected officials. Citizens have the power to vote prosecutors out of office if they believe that their discretion is not being exercised appropriately or in the best interest of the community.