« "The Sixth Amendment Sentencing Right and Its Remedy" | Main | How about some clemency grants from Prez Biden while his team works on grander clemency plans? »

February 11, 2021

Thoughtful accounting of the dynamic world of prosecutorial discretion

Marc Levin has this notable new Law360 commentary headlined "DOJ Charging Memo Rescission Aids Prosecutorial Discretion."  The piece covers a lot more than just the new interim DOJ charging memo (discussed here), and I recommend the entire discussion in full.  Here are excerpts:

[W]hile prosecutors have always declined cases, recently elected prosecutors in urban and even some suburban jurisdictions face backlash for presumptively declining to pursue certain categories of cases, such as low-level drug possession and trespassing on public property.

Of course, exercising discretion on which charges to bring in a particular case is not the same as designating categories of cases in which the default policy will be nonprosecution.  Critics charge that the latter displaces the role of legislative bodies in criminalizing conduct.

However, even policies that presumptively decline prosecution for certain offenses can be consistent with the rule of law, provided they operate within constraints that ensure accountability, individualized review and transparency....

In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of.  Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.

Default nonprosecution policies, even if implicit rather than announced, are routinely applied to such antiquated statutes, but also are required by the dramatic growth of criminal law in recent decades.  As a result, countless obscure crimes are largely unknown and unprosecuted.  Many are regulatory offenses affecting business and recreational activities, such as federal laws criminalizing ketchup that isn't thick enough, bringing too many nickels when traveling overseas or writing a check for less than $1.  Like trespassing on public property or drug possession, these obscure offenses often lack an identifiable victim.

A last-minute executive order by former President Donald Trump rightfully urges that civil, rather than criminal, penalties be pursued for unknowing violations of regulations....

This executive order also encourages prosecutors not to bring charges for such crimes if the prospective defendant did not have a culpable mental state, even though it is not required by the law or regulation.  While laudable, this is not fundamentally different than presumptively declining to prosecute an offense altogether, since it effectively restricts the scope of an offense that, as written, creates strict criminal liability.

If prosecutors indeed have the rightful authority to decline pursuing these categories of obscure offenses, then local district attorneys can presumptively not prosecute drug possession or public trespassing.  The ubiquity of the latter is simply not a meaningful philosophical distinction.

Some would argue another difference is that those who tend to be subject to drug and trespassing laws are much less powerful.  Others would point to the neighborhood quality-oflife concerns as a distinguishing factor, but that goes to the question of whether prosecution or other strategies are most effective, not the legitimacy of prosecutorial declinations.

Prosecutors must decide not just whether laws have been violated, but whether prosecution is in the public interest, taking into account the trade-off in pursuing other cases and whether prosecution would be more likely than other approaches to advance goals such as public safety and public confidence in the justice system.

In military terms, lawmakers give prosecutors ammunition, but prosecutors decide not only when to shoot but which battles should be fought.

A few recent related posts:

February 11, 2021 at 11:35 AM | Permalink

Comments

Another thing about prosecution policies is that in most counties, there is an understanding -- either express or implicit -- about what offenses stay in municipal court and which ones are referred for state prosecution. Even when I worked in a rural county, we would not get misdemeanor possession or MIP charges if the offender was stopped by a city officer. And it took a state statute to "cure" the problem of repeat DWI offenders getting processed through municipal court.

I never heard any complaints that prosecutors weren't doing their job by letting state misdemeanor offenses proceed in municipal court as local ordinance violations.

Posted by: tmm | Feb 12, 2021 11:06:02 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB