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Deciding Who Gets Prosecuted Is Trickier Than You Think

Everyone in the criminal justice system — sheriffs, prosecutors, judges, parole boards — has enormous discretion. Some lawmakers believe that authority is now being abused.

Commentary: Kavanaugh (and other justices) shouldn't be exempt from an ethics code
“There are never enough resources — or almost never enough resources — to detain every person who should be detained,” said Supreme Court Associate Justice Brett Kavanaugh.
(Christy Bowe/Globe Photos/Zuma Press/TNS)
In  Brief:
  • There's nothing new about prosecutors deciding which cases to pursue, but more of them are going public about such policies.
  • Some lawmakers see prosecutors making public statements about crimes they won't charge as nullification.
  • It's a delicate balance, but no one would want a world where all laws are enforced and maximum penalties always given out.

  • Even before word leaked about the indictment of former President Donald Trump, Republicans were complaining that prosecutors were out of control. Last week, the Georgia Legislature passed a bill to create a new state panel with the power to punish or remove “rogue” prosecutors elected at the local level.

    Some viewed this step as revenge against Fani Willis, the district attorney for Fulton County, who may yet seek charges against Trump for election interference. But the stated motivation behind the bill was to hold prosecutors accountable for failing to pursue cases involving certain categories of crime, such as low-level drug offenses. "Far-left local prosecutors are failing their constituents and making our communities less safe,” GOP Gov. Brian Kemp tweeted last year.

    Lawmakers in numerous other states are looking at ways to punish or clip the wings of local prosecutors, including Florida, Indiana, Missouri and Pennsylvania. In Texas, no fewer than 30 bills would take away authority from prosecutors. On Wednesday, the Texas Senate passed a bill that would deem a prosecutor's refusal to pursue a category of crime "official misconduct," clearing the way for potential removal from office. A government reorganization bill passed last month in Iowa gives the sole power to prosecute election-related crimes to the state attorney general, while also allowing that office to come in and prosecute crimes of any nature without the county attorney requesting assistance.

    There have always been arguments about which cases prosecutors decide to charge, and why. That tension has become particularly acute in recent years, with progressive prosecutors announcing there are laws they simply won’t enforce, such as marijuana possession, or vowing not to seek the death penalty. “It’s always been true that prosecutors’ offices have had things they’d move to the back of the line,” says Ronald Wright, a law professor at Wake Forest University. “The discussion of the practice has become more political.”

    Last year, Florida Republican Gov. Ron DeSantis suspended Andrew Warren, the prosecutor in Tampa, for stating he would not enforce restrictions on abortion or gender therapy. At the end of last year, the Pennsylvania House voted to impeach Philadelphia District Attorney Larry Krasner, blaming his non-enforcement of certain crimes for rising rates of violence in that city. In Missouri, the state attorney general is trying to remove St. Louis prosecutor Kim Gardner for “willful neglect” of her law enforcement duties.

    The legislation in Georgia and other states moves beyond targeting individual officials in order to limit the power of prosecutors more broadly. It’s easy to view this as political interference. “This has become part of the authoritarian playbook,” Andrew Warren told NBC News last week.

    But the efforts of state legislators to assert more control over how laws are enforced at the local level is part of the ever-ongoing tug of war between different levels and branches of government about how criminal justice policy should be made and carried out. Different players at every step of the process — from the police and sheriffs who make the arrests, to the grand juries and prosecutors who decide whether to file charges, through the judges who mete out sentences and on to the parole boards who decide when and if to bring those sentences to an end — possess enormous discretion.
    Andrew Warren, the prosecutor in Tampa, was suspended by Florida Republican Gov. Ron DeSantis for stating he would not enforce restrictions on abortion or gender therapy.
    (Chris Urso/Tampa Bay Times/TNS)
    Deciding which violations are enforced and how much punishment is doled out is not a cut-and-dried issue. All these various actors will make different decisions in different jurisdictions at different times. Their choices will leave some people unhappy, which can result in efforts like the current push to take discretion away from prosecutors, or insisting that judges hand down mandatory-minimum sentences or be blocked from requiring cash bail.

    “We should first and foremost acknowledge that this is happening from both directions,” says Adam Gelb, president of the Council on Criminal Justice. “We have folks coming from both the left and the right who use their discretion to do what they want.”

    Why We Have Discretion

    Discretion is sewn into the fabric of the American criminal justice system. No one would want to live in a world where every law is enforced, with the maximum penalty handed down in all cases. One big reason progressive prosecutors are rethinking the playbook is to reduce mass incarceration, which is also behind older efforts at criminal justice and sentencing reforms that have more bipartisan support.

    It’s worth bearing in mind that no two states handle all cases — from arrests to prosecution to probation and parole — in the exact same way. And every state has outdated laws that are no longer enforced. Adultery is still illegal in 16 states.

    Even if there were a massive purge of laws everyone can agree are no longer relevant, the remaining statutes still wouldn’t be enforced without exception. There aren’t enough cops to catch every jaywalker or tag every driver exceeding the speed limit. Being given a finite budget for jail space, both cops and prosecutors decide that some infractions — many of them, in fact — should just be overlooked.

    “There is a tradition of reading statutes against the backdrop of prosecutorial discretion,” U.S. Supreme Court Justice Brett Kavanaugh said during oral arguments last November in U.S. v. Texas, a pending case that turns on the question of discretion in immigration enforcement. “There are never enough resources — or almost never enough resources — to detain every person who should be detained.”

    Laws are written broadly to account for the worst circumstances. They’re not meant to be applied without fail, except for the most serious crimes such as rape and murder. The average person likely commits multiple misdemeanors or even felonies each day. Think about what a terrible idea it would be for us all to have little AI drone robots constantly following us around and zapping us for each little infraction. We all hope that the cop who pulls us over will give us a warning rather than a ticket.

    There was once a case where two women were fighting over an item of clothing during a Black Friday sale. One injured her finger. Under the plain letter of the law in Colorado, the woman grabbing the item committed robbery and the other woman’s injury would literally be an aggravating factor. “Under the statute, it’s robbery,” says Lisel Petis, a former prosecutor at the R Street Institute. “It’s harassment at best. Just two people being dumb. If a prosecutor is required to charge every single case because of the facts of the crime, we’re going to see some awful cases.”

    This is part of the conservative complaint about the charges against Trump in New York, that it’s not a “real crime,” at most involving fudgy accounting that’s not worthy of history’s first indictment of a former president. Even some liberal commentators call the charges a stretch.

    Every prosecutor’s office in the country has informal policies regarding which cases it’s going to pursue and which ones it won’t even touch. That might mean not filing charges against shoplifters who steal less than $100 worth of goods or white-collar criminals who get away with less than $50,000. As Justice Kavanaugh says, it’s a resource issue. Well over 90 percent of criminal cases are resolved through plea bargains — by their nature, exercises of prosecutorial discretion — with jury trials comparatively rare means of resolution.

    “Let’s say you’ve had 10 marijuana cases and all of them led to acquittals — juries say it’s a waste of time,” says Akhi Johnson, director of the Vera Institute for Justice’s Reshaping Prosecution Initiative. “Should a prosecutor go for the 11th case, paying police overtime to testify? All the while, we’re diverting resources from more serious things.”

    But what if a prosecutor announces publicly that he will never prosecute marijuana cases? That’s when things become tricky, or at least more political.

    Discretion vs. Nullification

    In January, Illinois Democratic Gov. J.B. Pritzker signed a bill banning 170 assault-style weapons. That law is being challenged in court, but it had barely been passed before sheriffs in the state declared they would refuse to enforce it. In fact, all but a handful of the 102 sheriffs in Illinois have stated — in writing — that they will not enforce the law.

    It’s similar to the decision many sheriffs made around the country at the height of the pandemic not to enforce mask mandates. “If sheriffs decide not to enforce that law, there is really nothing that can be done,” says Mirya Holman, a Tulane University political scientist who studies sheriffs. “Sheriffs are getting the message, you get to make the decision about what is constitutional or not.”

    When local officials state bluntly that they won’t enforce state laws, isn’t that a form of nullification? “When you’re seeing blanket dismissals of crimes, that does nullify a law,” Petis says. “It feels less like using discretion and more like making a political statement.”

    That’s what’s different about today’s prosecutors who come out and publicly say they won’t prosecute marijuana possession or minor thefts. Robert Morgenthau, a longtime district attorney in Manhattan, was well-known for never seeking the death penalty against a defendant. He just didn’t make it a formal policy. “He never said, ‘I never shall,’” says Wright, the Wake Forest law professor. “It’s just that for decades, he never brought a death penalty case.”

    If a sheriff says he’ll never enforce an assault-weapons ban, he might be giving up a charge he can make stick when dealing with an assailant he knows (but can’t prove) is guilty of other crimes. Similarly, a prosecutor who says she’ll never seek the death penalty is potentially giving up leverage during plea negotiations.

    “To ignore a law, to say we’re just not going to do it, that has implications for democratic governance,” says Brandon del Pozo, a former police officer who now teaches at Brown University. “You want officials to have discretion, but if they say, ‘I will never enforce these laws,’ they are saying, ‘There are problems in our community that I’m telling you, in advance, I am never going to solve.’”

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    While serving as police chief in Burlington, Vt., del Pozo became the first chief in the nation to announce he would not arrest anyone for possession of a medication used to combat opioid addiction. The greater the availability of such treatment, he reasoned, the better. That’s more or less the same reasoning the Food and Drug Administration has used in making anti-opioid drugs more easily available, including last week when it allowed a medication used to treat opioid overdoses to be available over the counter.

    It's a good thing that local officials are adapting not only to circumstances but new data and evidence, which the legislative process may be slow in recognizing, suggests Caroline Nobo, executive director of the Justice Collaboratory at Yale Law School. “I tend to think about discretion on a case-by-case basis, but we’re also talking about swings as policies have failed to keep up with the evidence,” Nobo says.
    “To ignore a law, to say we’re just not going to do it, that has implications for democratic governance.” Brandon del Pozo, a former police officer and professor at Brown University. (
    In other words, it’s about motivation. Is a prosecutor or sheriff making a decision about enforcement based on the best interests of their communities? Well, certainly they would all say they were. No one is going to admit that their reasoning is less than pure.

    For that reason, there is value in having officials announce their policies openly. That way, the community can judge whether they’re choosing not to enforce certain laws based on evidence and best practices, or on bias. The flip side of discretion is arbitrariness. “Certainly, there are studies about the white kid being driven home to Mom and Dad, and the Black kid being driven to detention,” says Gelb, of the Council on Criminal Justice.

    But, again, categorically ruling out arrests or prosecution can become an open invitation to commit certain crimes, which is why so many legislators are looking to punish prosecutors who refuse to enforce laws against them. Still, lawmakers need to realize that they cannot possibly write statutes in a way that are self-enforcing, or that won’t create circumstances where discretion is clearly warranted.

    The point of discretion in law enforcement, del Pozo says, is that it offers a tool to solve problems appropriately, given the place and time. Noise ordinances that make sense on a Sunday morning in a residential area don’t make sense in Times Square on a Saturday night. “Enforcing laws about drinking in a bar district is wrongheaded,” del Pozo says. “To say you’ll never enforce those laws is a dereliction of duty.”
    Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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