Using Prosecutorial Discretion to Negate Law
In a City Journal article former District Attorney Thomas Hogan notes that progressive DAs are abusing their discretion to set countywide policies to prevent the enforcement of laws enacted to discourage and punish crime.
Baltimore is not prosecuting shoplifting or drug-possession crimes. Despite recent violent protests and occupations, St. Louis is not pursuing cases for looting and rioting, while Portland isn’t pursuing charges for trespassing. Philadelphia won’t allow prostitution charges. San Francisco is not prosecuting indecent exposure offenses. Chicago declines arrests for thefts of less than $1,000.
Prosecutorial discretion historically has been defined as a case-by-case judgment about whether to charge someone with a crime and whether to permit a plea bargain to some agreed-upon sentence or take the case to trial. The discretion is exercised based on consideration of the facts of the case, the characteristics of the defendant, and factors related to the victim…It requires a fact-intensive, case-specific analysis. Prosecutorial discretion does not grant prosecutors unfitted authority to negate the legislative process by simply delaying that and entire class of crimes will go unpunished.
Prosecutors have not been granted a line-item veto to go through their respective criminal codes and simply cross out the laws that they personally don’t like. Enacting or repealing criminal laws is a legislative task conducted by elected officials. Prosecutors, like police, take an oath and have a duty to enforce the law as written by the legislature and approved by the executive.
The mostly Soros-bankrolled progressive District Attorneys setting blanket policies to decline prosecution for selected categories of crime are breaking their oath to enforce the law. It appears, at least in Los Angeles and perhaps San Francisco, there may be a political price to be paid for this type of abuse of authority.
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Categorical refusal to enforce any given law or set of laws is a de facto repeal, and thus impermissible simply because repeal is a legislative and not an executive prerogative. It’s easy to see this by asking yourself what the reaction would have been if Trump administration US Attorneys had categorically refused to enforce environmental or civil rights laws. Would anyone have said then that this was merely an exercise in “prosecutorial discretion?”
Should states pass laws to crack down on Gascon-type DAs, similar to how former Florida prosecutor Aramis Ayala lost jurisdiction over death penalty cases? If so, would such laws pass constitutional muster?
I think it would depend on the state’s Constitution, and whether that and/or state statutory law allowed a Florida-type solution.