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June 15, 2019

Two different stories undermining prosecutors' claims that "we do not make the laws, we just enforce them"

Criminal justice reformers have come to give so much attention to the role of prosecutors because of the wide-spread realization of the profound power of prosecutors to shape the nature and application of modern criminal justice systems.  In this context, some prosecutors are eager to claim that they ought not be the focus of so attention (and criticism) because they are just tasked with enforcing the law and not making it.  Usefully, Josie Duffy Rice last year in in this commentary at The Appeal, headlined "Prosecutors Aren’t Just Enforcing The Law  — They’re Making It," did a terrific job highlighting numerous examples of how "DA associations are using [their] power to defeat a wide range of bipartisan reform efforts."  Similarly, others have spotlighted how, in this words of this piece, "Prosecutors Are Banding Together to Prevent Criminal-Justice Reform." 

Two recent stories about prosecutors, one state and one federal, have me thinking about these issues today.  The state one comes from Oregon and provides another example of prosecutors trying to shape the applicable criminal law.  It is reported in this new local article fully headlined: "District Attorneys Quietly Passed the Hat to Overturn New Oregon Laws Reducing Jail Time; Emails newly obtained by WW illustrate a deep divide in the state, between the people who make the laws and the people who enforce them."

The federal story is not about prosecutors seeking to make the law, but rather about their disinclination to enforce the law against persons from their ranks.  This Hill commentary, headlined "Feds gone wild: DOJ's stunning inability to prosecute its own bad actors," explains the ugliness here:

One was caught red-handed engaged in nepotism.  Another, a lawyer no less, admitted to shoplifting at a Marine barracks store.  A third leaked sealed court information to the news media. And a fourth engaged in fraud by turning a government garage into a personal repair shop.

Four cases, all solved in the past month, with suspects who cost taxpayers hundreds of thousands of dollars and significant breaches of public trust.

But these weren’t your everyday perps.  All were U.S. Department of Justice (DOJ) employees who are supposed to catch other criminals while working for the FBI, the Drug Enforcement Administration (DEA) and U.S. attorneys’ offices. Instead, they broke the law or violated the rules.  And all managed to escape prosecution, despite their proven transgressions.

Recent Justice Department disciplinary files tell an undeniable story. Under the leadership of Inspector General (IG) Michael Horowitz, DOJ’s internal watchdog is doing an outstanding job of policing bad conduct inside America’s premier law enforcement agency.

And DOJ is doing a poor job of punishing its own.  In cases closed in the past month, more than a half-dozen FBI, DEA, U.S. attorney and U.S. marshal officials were allowed to retire, do volunteer work, or keep their jobs as they escaped criminal charges that everyday Americans probably would not.

So, these stories reveal what insiders have long known: prosecutors do help make and shape our criminal laws, and they sometimes do not enforce them.

June 15, 2019 at 12:42 PM | Permalink


Regarding the Hill story, the author misses a very important angle---namely that those who were on the take (e.g., the guy who had his car fixed by the FBI auto shop) need to pay federal and state income taxes on the fair market value of what they took. (If they are required to reimburse---doesn't matter, they would pay the tax for the tax year they made their ill-gotten gains with a deduction coming in the year they had to reimburse).

The bigger issue---since government officials seem to get a break, there appears to be an Equal Protection problem lurking here--there are rational bases for basing lenience on the fact that someone is a government employee. (Note, last I checked, the Equal Protection Clause does apply to prosecutorial decisions.)

And where are the federal judges? They tolerate this sort of unequal justice---are they going to make noise?

Doug, what say you?

Posted by: federalost | Jun 15, 2019 5:36:30 PM

It's the old saying, "Don't do as I do, do what I tell you to do" attitude. All these Public Employees have signed and taken an Oath of Office, what good is the Oath if it is not enforced?

Posted by: LC in Texas | Jun 16, 2019 12:28:25 PM

federalist, I am not sure what kind of EP issue you think lurks here or what you expect judges to do. Many prosecuted defendants have tried and failed to get a prosecution dismissed because others similarly situated are not charged; courts have long said this is not an EP problem absent proof race or other suspect reason drove choices. And I am not eager to imagine a world in which judges review declination decisions and have to power to force a prosecution. Are you urging judges to go easier on those prosecuted who can highlighting that similar govt amployees avoided prosecution?

Posted by: Doug B. | Jun 17, 2019 9:08:10 AM

Doug, as you indicate, the EPC does apply to prosecutorial discretion. In the race context, obviously, the standards of proof are high (but the cases only really deal with statistics and limit discovery). However, if there was a smoking gun, it would be a real problem. Rational basis, however, also applies---I am not what the contours would be--but it seems clear that not being a government employee is not a rational basis upon which to base a prosecutor's decision. In other words, prosecutors cannot have a lenience policy that lets government employees get over like this.

Judges need to start by asking the hard questions. Law professors need to push this issue---we cannot live in a society where this occurs.

I'd dismiss charges in the right circumstances.

Posted by: federalist | Jun 17, 2019 7:32:56 PM

love your thinking here, federalist, but I see so many challenges in procedure and proof. Is the person who is charged with some low-level fraud going to be allowed to and able to collect evidence about all the folk NOT charged with fraud by the same office (or in the same city or state or nation)? And even if able to prove that there was some invidious/irrational basis for not charging some folks, will a judge think the right remedy is to dismiss an otherwise reasonable/rational prosecution when there is not reason to believe the person prosecuted was not targeted as a "non-official"?

These are comparable issues that have generally thwarted race-based selective prosecution challenges. Moreover, as is my concern with any EP challenge in this arena, the sensible way to respond is actually to bring more prosecutions and pursue equal levels of harshness. Perhaps that is what you hope to achieve, but I would rather see prosecutors be as forgiving of all as they are of their own.

Posted by: Doug B. | Jun 18, 2019 8:37:42 AM

Doug, I think the issue is that we all know what is going on here. And all the courts have to do is ask the hard questions of the prosecuting attorneys. Courts have inherent power. And that includes asking a prosecutor to compare and contrast and to deny that a person's status as a member of federal law enforcement isn't the cause of extreme special treatment

This is an intolerable state of affairs. There is simply no legitimate reason to forego prosecution of a guy who has his cars repaired by the government and who lie about it, don't pay taxes etc. We all know why. yet we tolerate it.

At the end of the day, the DOJ's argument, if ever pressed, is "We can do this." And that will change it because it is so offensive.

Posted by: federalist | Jun 18, 2019 7:42:41 PM

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