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November 27, 2019

Deputy AG Rosen continues his hypocritical attacks on local prosecutors for "nonenforcement of the law"

In this post a few weeks ago, I noted and criticized this speech delivered by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  In my post, I noted that the speech emphasizes making the reduction of violent crime a priority and then assailed local DAs for giving less attention to non-violent crimes.  The speech also complained about DAs adopting non-prosecution strategies for certain low-level offenses without addressing the fact that the federal government for a full decade has formally or functionally adopted non-prosecution strategies with respect to state-compliant federal marijuana offenses.  

Well, DAG Rosen is at it again, this time with this new Washington Post piece run under the headline "'Social justice reform' is no justice at all."  Here are excerpts:

Unfortunately, a trend is emerging that could threaten the hard-fought progress in public safety. A small but troubling number of state and local prosecutors are vowing that they will not enforce entire categories of core criminal offenses as part of a misguided experiment in “social justice reform.”

A prosecutor has a vital role: to enforce the law fairly and keep the public safe. These purportedly progressive district attorneys, however, are shirking that duty in favor of unfounded decriminalization policies that they claim are necessary to fix a “broken” system.

The Philadelphia district attorney, for instance, has in effect decriminalized thefts of up to $500.  Boston’s district attorney actually campaigned, before her election last year, with a list of crimes her office would not prosecute — including drug distribution, “larceny under $250,” receiving stolen property, trespassing, malicious destruction of property and resisting arrest.

In San Francisco, the new DA has vowed not to prosecute “quality of life” crimes such as public urination and prostitution. And the new DA in Fairfax County said during his campaign that he wouldn’t prosecute as a felony any larceny below $1,500 (ignoring the state threshold of $500), would not seek cash bail for felonies and would charge unlawful immigrants more leniently than U.S. citizens for the same crimes in order to circumvent the immigration consequences of the crimes.

While the Trump administration is dedicated to enforcing federal criminal law, as shown by the record number of violent crime prosecutions during the past two years, not every state crime is prosecutable as a federal offense. Contrary to the belief that inspires these so-called social justice policies, the “system” is not broken. Just as violent crime rates are near historic lows, national incarceration rates have also fallen 13 percent over the past decade, hitting a 20-year low, according to a 2019 report by the Bureau of Justice Statistics.

Those who still believe that certain criminal laws hinder “social justice” should vote for a legislature, not a prosecutor, to address their concerns.  Outright nonenforcement of the law is an affront to the separation of powers.  The legislative branch writes the law. The judicial branch interprets the law. And the executive branch — of which these prosecutors are a part — enforces the law.

Prosecutors have discretion to decide what individual cases to bring and how best to resolve them.  But the categorical refusal to enforce basic laws geared toward public safety goes far beyond prosecutorial discretion, violates the duty to enforce the laws as passed by the legislature and flies in the face of the fundamental concept that no one part of government exercises total control.

Prosecutorial policies that disregard core criminal laws — and the inflammatory rhetoric that often accompanies those practices — also erode respect for the rule of law.  These prosecutors risk demeaning the very institutions they are appointed to lead and fueling mistrust by promoting false narratives about the criminal-justice system and law enforcement.  The prosecutors are essentially flipping the script, casting criminals as victims and police as villains.  This distortion is not only demoralizing to law enforcement but also emboldens hostility toward both the rule of law and those entrusted with enforcing it.

As a general matter, I continue to be intrigued and troubled by an unelected federal prosecutor making proclamations about how elected local prosecutors ought to apply state laws.  Notably, the Philadelphia, Boston and San Francisco DAs all clearly articulated their planned prosecutorial policies during their campaigns and they will continue to be directly accountable to local voters.  But DAG Rosen was not elected by anyone and is not really directly accountable to anyone, and his appointed responsibility concerns only the application and enforcement of federal law.

And speaking of federal law, DAG Rosen ought to explain his own work in his own backyard before attacking state and local prosecutors.  Beyond the fact that the federal government has been formally or functionally engaging in "outright nonenforcement" of (state-compliant) federal marijuana offenses, in just Washington DC alone a simple Google search reveals dozens of marijuana offenders advertising in plain sight.  Of course, DAG Rosen is seemingly okay with "categorical refusal to enforce" federal marijuana law in these settings because there are very sound political and practical reasons for federal prosecutors to allocate its limited resources elsewhere.  But, as I commented in the prior post, apparently in the view of DAG Rosen, what is good for the (unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Prior related post:

November 27, 2019 at 07:23 PM | Permalink


I typically think less about comparing the democratic consequences of DAG Rosen vs. local prosecutors, as compared to the state general assemblies vs. local prosecutors. After all, DAG Rosen is simply requesting the elected local prosecutors enforce the laws as passed by the also elected state legislatures. There is then the interesting question of who should win out between two elected bodies. I tend to think the legislatures should prevail. In general I believe people think of legislatures as the body deciding what is illegal and legal, and DAs as merely enforcing legislative will w/ some discretion, not complete non-enforcement. That level of discretion essentially makes it the DA, not the legislature, the person deciding what is criminal. That doesn't seem like exercising discretion to me, and reminds me more of the notion that blanket non-enforcement is actually the absence of discretion, not the exercise of it. And while its certainly true legislatures could amend any criminal statue to include a no-drop policy if they wish, I don't think state legislators necessarily would prefer that state of affairs either. They most likely prefer ordinary discretion but enforcement in general nonetheless, and if that is what the legislature prefers, I think that is what the DA should follow. (Sentencing law student of Prof. Berman's)

Posted by: Connor Strait | Nov 28, 2019 10:56:28 AM

"In Oakland, the new DA has vowed not to prosecute “quality of life” crimes such as underage smoking and carrying assault-weapons in schools."

As long as DAs are elected officials they have no duty or oath to faithfully execute the law or otherwise do the job that they're receiving compensation for. The most basic right of an elected official is to refuse to enforce the law and do their job. The law can only exist if enforcing it is optional.

Posted by: Bart Simpson | Nov 29, 2019 10:42:53 AM

Thanks, Connor and Bart, for your comments, though how responsive do we think locally-elected DAs ought to be to the interests of the people who elected them locally. Should the Franklin County DAs be expected to enforce fully the underage drinking rules on the Ohio State campus unless and until the Ohio legislature lowers the drinking age even though probably everyone in the county thinks that would be a poor use of time/resources? Why should enforcement policies be set at the state level when local impacts are most consequential and localities may reasonably want to prioritize different types of crime issues?

My main point is that there are lots and lots and lots of blanket non-enforcement policies that we all think are just fine --- I stressed the federal marijuana one in my post --- but often these function only for the privileged and we think of this as a non-brainer (e.g., think of all those driving 72 MPH in a 70 MPH zone). Perhaps these policies do in some ways erode respect for the rule of law, but would mass enforcement of underage drinking laws on college campuses enhance respect for the rule of law? Would perfect enforcement of traffic laws (which technology could not permit) enhance respect for the rule of law? Juts some food for thought.

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