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. Did a sudden decision from the Supreme Court invalidate these crimes? Are the police on strike? Are the prosecutors’ offices short-staffed? No: each office is not prosecuting these cases based on the discretion of the city’s chief prosecutor. Unfortunately, these officials misinterpret, misunderstand, and misapply the legal concept of prosecutorial discretion.

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. For instance, in an aggravated assault by shooting case, the prosecutor might consider how many shots were fired, the distance between the defendant and the victim, the victim’s preferences for charges and case disposition, whether the victim did anything to provoke the defendant, the defendant’s prior convictions for similar conduct, the strength of the evidence, a defendant’s confession, a defendant’s remorse, mental health issues, and other factors. It requires a fact-intensive, case-specific analysis.

Prosecutorial discretion does not grant prosecutors unfettered authority to negate the legislative process by simply declaring that an 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.

Los Angeles district attorney George Gascón has been a leader in disguising the flouting of his duty as prosecutorial discretion. On taking office, Gascón informed his line prosecutors that they would no longer be allowed to prosecute such offenses as drug possession, trespassing, resisting arrest, public intoxication, driving without a license, and other misdemeanors in current California law. Gascón also told his team that they were not allowed to pursue sentencing enhancements in felony cases for gun possession, gang crimes, and “three strikes” offenses for violent criminals.

The experienced line prosecutors working in Los Angeles responded by suing Gascón. The assistant district attorneys pointed out that the duties that Gascon was ordering be ignored are mandated by California law. “The touchstone of prosecutorial discretion is the exercise of case-by-case discretion, which [Gascón’s] special directives expressly, intentionally and undisputedly prohibit,” the lawyer for the line prosecutors stated. “Those directives are thus unlawful.” A Los Angeles court agreed, ruling that Gascón could not order his prosecutors to ignore California laws based upon his own whims. Gascón has vowed to appeal. (Tellingly, Gascón himself has never served as a line prosecutor, where he would have been required to step into the courtroom on cases.)

Gascón is part of the new wave of progressive prosecutors who intentionally distort the concept of prosecutorial discretion. These officials campaigned on a platform of not enforcing the law, without regard to the case-by-case analysis required by the traditional notion of discretion. They act in effect as a super-legislature, bypassing the checks and balances imposed on lawmaking bodies.

This unchecked interpretation of prosecutorial discretion can lead nowhere good. What if a prosecutor declines to pursue rape offenses where the victim and offender are married or in a relationship? Or to ignore child abuse cases? Or hate crimes? Or theft cases where the victim has a net worth of more than $1 million? Or shooting cases where the victim and offender are of different races?

Criminal laws exist for a reason. Prosecutors exist to enforce those laws. Those interested in changing the criminal laws in their state or locality should run for the legislature, not for district attorney. Blanket decisions by prosecutors to invalidate duly enacted criminal laws sets a dangerous precedent.

Photo: erhui1979/iStock


City Journal is a publication of the Manhattan Institute for Policy Research (MI), a leading free-market think tank. Are you interested in supporting the magazine? As a 501(c)(3) nonprofit, donations in support of MI and City Journal are fully tax-deductible as provided by law (EIN #13-2912529).

Further Reading

Up Next