A friend of Law Talkin’ Guy requested a post on “prosecutorial discretion,” and with upcoming elections it is a fine topic to consider. In our legal system, the prosecution chooses whether or not to bring charges, and what charges to bring. Why this system? Consider the nature of law. Law is a tool, the purpose of which is to provide some structure to society.  Laws are human-made and imperfect, and while the rule of law is important it is not the end-all. What do we want from law enforcement? People often say that they want all laws to be followed and enforced, but most people do not actually desire this. What is desired is a general sense of law and order in society, so that people can go about their day in relative safety, free to live out their American dream. Full enforcement of all laws would mean that every car going a mile over the speed limit receive a speeding ticket; every tax return that is not completely factual will face an audit and penalties; every meter that goes one second over its time would trigger a fine; every open container of alcohol would be poured out. In reality it would force the majority of the population to be branded a criminal, with all the burdens accompanying such a label. Is that an exaggeration? Consider this. Per a Forbes article from last year, “there have been 88,899 federal rules and regulations since 1995 through December 2016, as the chart shows; but “only” 4,312 laws.” I am sure we’re all confident that we’re following all 88,899+ rules, right?  (Even for those who would welcome such a system, it is not close to feasible to administer. The criminal justice system does not have anywhere near the resources needed to undertake such a task, thankfully).

As it is not possible to police all crime, choices must be made, and our system places much of the power to make those choices in the hands of prosecutors.  This has long been part of the American legal system, meaning even when it was possible to know all the laws, not every law was enforced every time.  At its best, discretion is a built-in mechanism to directly address an injustice. At its worst, discretion is ripe for abuse by unethical prosecutors, and an excessive number of laws heightens the stakes as discriminatory prosecution could masquerade as good faith discretion. However, the lack of any discretion results in zero tolerance policies which lead to absurd injustices, and prosecutors are subject to a few layers of oversight.  Besides, while some crimes are straightforward with concrete evidence, often a prosecutor must make a judgment call as to whether the evidence the police has is sufficient to secure a conviction under the law.  This necessarily varies from case to case and the sheer volume of cases means that individual (assistant) district attorneys must often make the decision and then move on to the next case.

One method to address bad prosecutors is at the ballot box. At the state level, the chief prosecutor is the district attorney, who is usually elected at the county level. The district attorney supervises all assistant district attorneys, who are the prosecutors most commonly seen in criminal court. District attorney elections are both a safeguard against bad actors and a direct democracy method for an organized community (a county) to express a preference on law enforcement priorities. Given the close working relationship between prosecutors and local police, these elections can significantly impact daily life in a community.

The judiciary serves as a further check on prosecutorial discretion. A trial judge is in a unique position to hear all evidence and determine what actually happened, and thus what punishment is warranted and consistent with others who have committed similar offenses.  Unlike with district attorneys, however, I do not endorse oversight via judicial elections, for I agree with Charles Pierce that electing judges is the second worst idea in American politics. Electing prosecutors is not the same as electing judges. Our system is designed around prosecutorial discretion, which often involves making hard choices. This is inevitably political, and thus elections makes sense. Judges, however, are not supposed to be swayed by the winds of democracy, and do not make the same sort of tough political choices as district attorneys.  The rules must be the same for all, and we must never forget that prosecutors carry with them the full weight of the government, an obvious imbalance of power compared to defendants that require judges to maintain fairness. Elections give trial judges all the wrong incentives, for even if a community wants a “get tough” approach, that is best handled through the laws themselves and direct policing. Electing both prosecutors and judges is a recipe for mob rule justice.

There’s no way to determine the exact right amount of laws and law enforcement. Society is dynamic, and communities vary. I can safely reject the extremes, as a lawless, chaotic society  is just as dangerous as a tyrannical, fascist society. We find ourselves then in the middle, trying to establish enough order for safety with enough freedom to live. Laws are necessary for society, but they alone cannot save us. Our vast system of laws and regulations gives executives, from the President to the district attorney, broad power to interpret and enforce laws. Whether this is good or bad is irrelevant as it is the system, and it is incumbent on us to hold law enforcement accountable and promote good governance from within. For a sense of what makes a good prosecutor, what we should look for in our elected district attorneys, I will leave you with the inspiring words of Justice Jackson, delivered when he was attorney general to new federal prosecutors.