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February 11, 2020

In speech to sheriffs, Attorney General William Barr assails "rogue DAs"

Continuing a trend of attacking locally-elected prosecutors bringing a new approach to their roles, Attorney General William Barr closed this speech at the Major County Sheriffs of America Winter Conference with a lengthy attack on the policies of what he calls "rogue DAs."  Here is the wind up and pitch from AG Barr on this topic:

Let me turn my attention to two substantial challenges to the rule of law we face today: so-called “sanctuary” jurisdictions and, what I’ve been calling them, rogue DAs, who undermine — rather than advance — our ability to carry out effective law enforcement....

Another similar problem is the increasing number of district attorneys who have fashioned for themselves a new role of judge-legislator-prosecutor.  These self-styled “social justice” reformers are refusing to enforce entire categories of law, including law against resisting police officers.  In so doing, these DAs are putting everyone in danger.

Their policies are pushing a number of America’s cities back toward a more dangerous past. Under the district attorney in Philadelphia, the murder rate in that city is at its highest point in over a decade.  Other cities with these “progressive” DAs — like San Francisco, Seattle, St. Louis, Chicago, and Baltimore — have all suffered historic levels of homicide and other violent crime.  This is while crime nationwide, generally, is going down.

The policies of these DAs strike at the very root of our law enforcement system.  Our system is based on graduated response, where we impose increasingly severe punishments based on an individual’s criminal history.  This means we have to have accurate criminal histories if we are going to be able to protect the community.  Even if we are going to treat early, and petty offenses leniently, we still need them charged and recorded so we know who we are dealing with as time goes by.  Our whole system is undermined by the practice of ignoring whole categories of criminal offenses.

The policies of these DAs also sabotage the effectiveness of community policing and “precision” policing, which depend heavily on obtaining information from members of the community.  When DAs engage in catch-and-release and revolving-door policies, people in the neighborhood who might otherwise provide information are scared to come forward.  These innocent people are rightly worried that the offender will be right back out on the street in a position to do them harm.  In some jurisdictions we are already seeing effective policing — that has taken decades of painstaking work to build — being dramatically undermined. Just in New York the other day, there was the case involving the MS-13 member who was released.  A member of the community provided evidence, and was killed by an MS-13 member who was released under new legal reforms in New York state.

These DAs think they are helping people, but they end up hurting them.  These policies actually lead to greater criminality.  Not always, but often enough, early intervention can help — with young people, in particular.  By allowing young lawbreakers entirely off the hook the first time — or the second time or even the third time — these DAs are potentially placing them on a conveyor to further and heightened criminality, which puts them at greater peril — both on the street from other criminals and from law enforcement when these young offenders graduate from petty to serious offenses, as many will if there is no intervention early on.

We have seen these policies before. They reigned supreme at the state level from the 1960s to the early 1990s. During this time, violent crime rates tripled in our country. They peaked in 1991 and 1992. By that time, the country had had enough. Following the lead of the policies of the Reagan, H.W. Bush administrations, the states started to make their systems tougher on crime.

We understood that because crime, particularly violent crime, is committed by a small segment of our population, repeat offenders need to be taken off the streets. Federal, state, and local law enforcement formed a strong partnership to get these violent offenders off our streets and keep them off.

We had tremendous success. Since 1992, violent crime was cut in half nationwide. It went up a bit in the last two years of the Obama administration, but since the beginning of the Trump administration, we have succeeded in pushing it back down. We cannot allow all our hard work over the last 30 years to be undone by the wrong-headed policies of these so-called “reform” DAs.

We have to strengthen our partnership and stand together as never before. We have to be a strong voice for sensible law enforcement policies that protect our communities from violent predators. Our freedom depends on our ability to preserve the rule of law. I thank you, the department thanks you, and the American people thank you for dedicating your lives to defending it.

As I have noted before (here and here), complaints from DOJ about local prosecutorial "practice of ignoring whole categories of criminal offenses" are pretty rich given that DOJ has itself been engaged in the "practice of ignoring" all sorts of large-scale (though state-compliant) federal marijuana offenses for many years.

Prior related posts:

February 11, 2020 at 03:55 PM | Permalink


Whether you agree with the decision of any district attorney or not (or any U.S. Attorney for that matter), it is generally understood that prosecutor's offices have discretion to set enforcement priorities and to allocate prosecutorial resources in line with those priorities. While not binding, many legal ethics scholars and the ABA think that prosecutors should consider the likelihood of conviction in making charging decisions.

So if the local prosecutor, elected by the community and reflecting the values of the community, decide that possession of marijuana is not a serious threat to the community and that juries are likely to nullify, that prosecutor is not going rogue by declining to file those charges and to allocate the resources of his office to robbery cases or child sex cases instead.

Likewise, if the local prosecutor believes that resisting arrest cases are less serious and less deserving of prosecution than drive-by shooting cases or domestic violence, that decision is within her authority.

Anybody who has ever worked in a state's prosecutor's office (or as a state-level defense attorney) has had the experience of dealing with U.S. Attorney's Offices who decide which offenses merit federal intervention and which offenses should stay at the state level. Those standards tend to change from administration to administration even though the federal statutes defining the offenses stay the same.

So it's not that these local prosecutors are doing anything new or are usurping the powers of the legislature or judiciary. What is "different" is that these local prosecutors have their own priorities that the Attorney General thinks are mistaken. But the right of local prosecutors to set their own priorities is fully protected by the Tenth Amendment and state law.

Posted by: tmm | Feb 11, 2020 4:47:52 PM

Do rouge prosecutors indict members of the cosmetics industry, or do they wear rouge? Either way, that's better than being a rogue prosecutor.

-A Prosecutor

Posted by: Jonathan | Feb 11, 2020 4:59:58 PM

I guess I am just too rosy when typing my headlines! Thanks for the correction in my now-corrected headline.

Posted by: Doug B. | Feb 11, 2020 5:12:46 PM

These "rogue" district attorneys are better than you are, Barr!

Posted by: William R. Delzell | Feb 12, 2020 9:45:07 AM

Prosecutors advocating for more lenient results because it's in the interests of justice would, I'm sure, be exactly what Barr would claim they are doing in Roger Stone's case. It's a different set of priorities in Philadelphia, of course, but not any more "rogue."

Posted by: Erik M | Feb 12, 2020 2:10:36 PM

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