Let me start with a very clear message to every district attorney (DA — essentially, the chief prosecutor of a county) around the country:
We the People are paying you to uphold and enforce the law as it currently exists.
We are not paying you to be a professional activist, picking and choosing which laws you want to (or don’t want to) enforce based on your personal preferences, biases, beliefs and agendas.
(Shouldn’t this be common sense? Well, apparently the answer is no…)
1. What has been happening?
Prosecutors, much like police officers, have a certain amount of discretion over what enforcement actions they may take.
And that’s not an inherently bad thing.
Prosecutorial discretion, when used properly and in good faith, is a great tool to prevent the criminal justice system’s limited resources (i.e. taxpayer-supplied money and taxpayer-funded manpower) from being wasted on prosecuting meritless, un-winnable cases.
But what if they abuse that discretion — and even pride themselves in doing so, to the point that they run election campaigns based on it — which is precisely what’s been happening lately?
Take Boston, MA’s new DA Rachel Rollins, who ran her campaign on a platform (and won the election in December 2018) promising that she’d flat-out refuse to prosecute:
- Trespassing — as long as they claim it’s only “for the purpose of sleeping,” they would face no consequences for breaking into anyone’s occupied house
- Wanton or malicious destruction of property — which means anyone can vandalize any number of vehicles, buildings or other property as they please
- Drug possession, including with intent to distribute — essentially a “get-out-of-jail-free card” for drug dealers (unless they’re caught in the middle of a transaction, I guess)
- Theft — as long as it’s under $250 (unless they’re stealing from a store, in which case they may steal any amount without consequences)
Well, I wish Rollins were just an anomaly. I wish.
But the same is happening in Dallas, TX, where DA John Creuzot announced similar policies refusing to prosecute theft of “necessary items” (which is conveniently undefined and can therefore be arbitrarily interpreted) under $750.
The same is happening in Philadelphia, PA, where people are already seeing the disastrous consequences (number of homicides is higher than it’s ever been in the last 10 years) following DA Larry Krasner’s electoral victory in 2017.
And don’t even get me started on Chicago, IL’s DA Kim Foxx.
Oh, and the latest one? Queens, NY’s DA-elect Tiffany Cabán, a self-described socialist endorsed by DSA and her comrades nationwide (to include, not too surprisingly, the like of Bernie Sanders and Alexandria Ocasio-Cortez).
Update: Cabán has conceded after a ballot recount showing that her opponent won the race (thank God) by a very small margin.
2. Why should you be worried?
2.1. Unenforced laws embolden and enable criminals
This trend of blatant abuse of prosecutorial discretion is extremely dangerous and can (and has already had) catastrophic impacts on public safety.
To start off, it obviously emboldens and enables (if not encourages) criminals, because it quite literally gives them “get-out-of-jail-free cards.”
Boston-area career criminal Glenn Kerivan is a perfect example for this.
In May 2019, he went on a shoplifting spree after seeing on TV (while incarcerated, no less) that DA Rollins won’t be prosecuting shoplifters anymore.
Though what happened next is rather comical — Kerivan didn’t realize he was actually stealing outside of Rollins’ jurisdiction, and was therefore promptly arrested.
Michael O’Keefe, a DA in another jurisdiction in Massachusetts, has a spot-on comment on the Kerivan case:
“As district attorneys, we felt this was just a matter of time. I would like people to be assured that irrespective of what happens in Suffolk County [Boston], shoplifting is most certainly a crime in the rest of Massachusetts.”
2.2. When criminals are emboldened, the most vulnerable people suffer
“Don’t criminalize poverty!” That’s the logic of many of these self-proclaimed “progressive” prosecutors.
Of course, I completely agree no one should ever be punished for being poor.
But what about when the poor (or other vulnerable members of society) end up on the receiving end of crimes, which actually happens more often than these out-of-touch activists-turned-prosecutors think?
Rather than the criminals, shouldn’t we focus more on their victims, whom these “progressive” policies will end up harming rather than helping?
“Mercy to the guilty is cruelty to the innocent.”
— Adam Smith
Perhaps break-ins are not a concern for politicians who live in gated mansions and have personal bodyguards. But what about the rest of us who don’t have that luxury?
What if your house is broken into as you and your family are sleeping, because you can’t afford a high-end lock or a home-invasion alarm system?
Will that not put you in serious fear for your and your loved ones’ safety? Will it not make you terrified and worried about what the uninvited stranger might do to you next, since you don’t know if it’s a robber, a murderer, a rapist, or someone who’s there only “for the purpose of sleeping”?
Perhaps $250- or $750-worth of property being stolen is not a big deal if you live on a prosecutor’s salary. But what if you’re unemployed or disabled, and rely on social security checks? Would it still be not a big deal?
When drug dealers can operate with impunity and the law can no longer stop them, how many more overdose deaths will they contribute to? How many more kids will be addicted to meth before they’re even born? And how many more drug-fueled illegal activities — e.g. sexual assaults enabled by so-called “date-rape drugs” — will occur?
And perhaps no one cares when a Walmart is stolen from (“they have insurance anyway”™). But what about mom-and-pop corner-stores?
When storeowners helplessly witness themselves being stolen from over and over again as they already struggle to make ends meet, how much longer can they afford to stay in business (and contribute to the society by paying taxes, where the prosecutors’ paychecks come from)?
2.3. If you don’t like the law, change it — don’t circumvent it
2.3.1. Marijuana
I’ve always supported legalizing marijuana, like the states of Washington and Colorado did.
And the same goes for legalizing prostitution, like the state of Nevada did.
Notice, though, that I said legalizing and not decriminalizing.
The latter is easy and can be done right away: it’s (de facto) decriminalized as soon as the prosecutor refuses to prosecute it.
On the other hand, the former is significantly harder — you’ll have to convince at least more than 50% of people before it can be legalized.
But decriminalizing without legalizing — as is the case of many of the prosecutors mentioned above — is only going to benefit criminals and no one else.
Because when marijuana is legalized, there will be legal, licensed marijuana stores that are subject to government-enforced taxation, regulation, inspection, and quality-control measures (just like alcohol).
Illegal marijuana dealers can be expected to go out of business soon (because, obviously, who would buy it illegally when they can do it legally?).
But what if it’s only decriminalized? Sure, you won’t go to jail for marijuana use or possession anymore, but there still won’t be any stores to buy marijuana openly and legally from. You’ll still have to go to an illegal drug dealer who, by the way, still won’t have to pay taxes.
And because illegal drug dealers are obviously not regulated by the government, you can’t complain when they jack up the price, you’ll never know if their marijuana is bad quality, and you won’t know what impurities or pesticide residues (or worse!) it may contain.
See — in the end, only drug dealers will benefit from decriminalization.
Now more emboldened than ever, they’ll continue to receive a steady flow of cash, which will continue to fund their illegal activities and larger criminal organizations.
2.3.2. Prostitution
The same can be said about decriminalizing prostitution, which is apparently something Queens, NY’s DA-elect Cabán is passionate about.
But unless prostitution is legalized (and properly regulated), it will remain a dangerous hotbed of human trafficking and coercion.
Decriminalizing, if anything, can only make the situation worse, since now the police will no longer have a reason to investigate suspected victims of human trafficking whenever they see prostitutes on the street.
And yet this is exactly what Cabán thinks should happen.
She has openly claimed, in an interview with socialist/communist-leaning magazine Jacobin, that treating prostitutes as potential human trafficking victims (instead of as criminals) is not good enough, and they should instead be left alone altogether:
“The [special court for human trafficking] takes the approach — which is incredibly disempowering — that everybody who comes through that court system is a victim. It’s this paternalistic approach that doesn’t acknowledge the serious barriers that some of our communities face. It doesn’t acknowledge that sex work is a choice, that’s made for a number of different reasons, all of which are valid.
“In Queens, in Jackson Heights we have a population of trans Latina women engaged in sex work. In our Flushing area we have migrant communities that are doing work in massage parlors. This is work, it’s how they support themselves and their families.”
Sure, I fully understand and agree that sex work is a choice, and those who voluntarily choose this line of work should never be punished for their conscious, voluntary choice. Except that…
Not all of them made the choice!
Seriously, what about those who are forced into it?
She mentioned Flushing — a New York neighborhood heavily populated by (mostly working-class) Chinese immigrants.
But she doesn’t seem to know (or care) that many (I didn’t say all or most) women, in Flushing and elsewhere, did not voluntarily become prostitutes and are actual victims of cross-country human trafficking from East and Southeast Asia.
Cabán’s blanket implication that “everyone is doing it voluntarily, so we should simply leave them alone” is not only completely ludicrous and detached from reality, but also catastrophically dismissive of women who are bona fide victims of human trafficking.
Hence her policies, in the end, can only make human traffickers and pimps happy. Victims of crime? Not so much, like I said.
(Also, speaking as a feminist myself, I can hardly think of anything that’s more misogynistic — or, in Cabán’s own words, “incredibly disempowering” — than condoning human trafficking and forced prostitution.)
She also mentioned it’s upsetting that the court doesn’t acknowledge sex work is a choice.
Well, you know why? Because the court — unlike herself — actually follows the law, and it’s the law as it currently exists that doesn’t acknowledge sex work as a (lawful) choice.
I, too, want to see that changed.
But like I’ve said before: if you think things are not right and want to see changes, try to change the law; you’re not supposed to try to circumvent the law by changing the enforcement.
2.4. “Non-violent” crimes, when unaddressed, are gateway to violent ones
Of course, there is always the (seemingly) noble, self-described “compassionate” and “righteous” people that think “non-violent” (too often confused with “harmless”) criminals never deserve prosecution, much less punishment.
(For the record, possession or trafficking of child pornography is also by definition “non-violent”… and anyone thinks they don’t deserve some serious jail time is either purely stupid or purely evil.)
That’s the reasoning behind Washington D.C. Council’s decision in December 2018 to decriminalize fare-evasion on their subway system (WMATA), even though it already has reduced-fare and fare-exemption programs for those in need.
Because apparently holding every passenger to the same standard is somehow considered “racist” these days — or so did the politicians insist.
In other words, they’re basically saying as if people of certain racial groups were somehow inherently incapable of abiding by the rules and paying like everyone else, and therefore it would be unfair to judge them by the same standard. (Now that sounds racist to me — but I digress.)
As a result, in addition to fare-evasions, the police are now told to ignore eating, drinking, sleeping, playing loud music, and other disorderly conducts onboard altogether. Even though all of these activities are (theoretically) against the law.
But it’s not really a bad thing, right? “Quality-of-life” crimes and infractions are, after all, “victimless” and should therefore be left unpunished, as some would claim.
…that is, unless you look at examples like San Francisco’s subway system (BART), where an epidemic of fare-evasion has led to a significant increase in violent crimes — more than doubled, to be exact — over the past four years. (Yes, we’re talking about robberies, aggravated assaults, and even homicides here.)
And you know who gets hurt the most in the long run?
That’s right, the most vulnerable and underprivileged people, like I said earlier — poor people who can’t afford to buy cars and have no choice but be forced to take the train along with, um, “justice-involved returning residents” (yup, that’s actually what San Francisco actually calls criminals these days).
Oh and by the way, before you say fare-evasion is a “victimless” offense, guess what?
When some refuse to pay, that cost will be shouldered by the rest of us — all honest law-abiding taxpayers who actually do the right thing and pay like we’re supposed to.
3. Now what?
3.1. The status quo: whatever law you have on the book, it only takes one prosecutor to screw it up
Prosecutors are supposed to uphold and enforce the law as it currently exists.
They themselves are not supposed to single-handedly make the law — and that’s for a good reason.
It takes numerous lawmakers and citizens, through hundreds of hours of debates and discussions, under a delicately designed democratic procedure, to make proposals into laws.
And this is where the legitimacy of laws comes from: laws are deemed as a reflection of the people’s collective will and general consensus, because they are made by representatives (i.e. members of congresses and city councils) who are elected by all citizens.
Yet it only takes one prosecutor to kill those laws (because, needless to say, laws don’t exist if they aren’t enforced).
Sure, the prosecutor has to be voted in first. But once elected, they can arbitrarily pick and choose which laws to ignore — with no due process, no citizen input, and no accountability at all.
And when the prosecutor allows their own personal preferences, biases, beliefs and agendas to override the people’s collective will and general consensus (i.e. the law) — how can this not undermine and deteriorate our nation’s fundamental values of democracy and rule of law, the very fabrics that hold our society together?
Take Craig “Good Christian” Northcott, DA of Coffee County, TN, who has openly declared that he would not pursue domestic violence charges if the couple in question is gay.
And it’s all due to his personal belief that gay marriages shouldn’t be legally recognized.
But guess what?
It’s not Mr. Prosecutor’s job to make laws — that’s for the legislative branch (congress) of the government.
And it’s not Mr. Prosecutor’s job to interpret laws — that’s for the judicial branch (courts) of the government.
Regardless of what he personally thinks about gay marriages, the Supreme Court’s Obergefell v. Hodges (2015) decision is still binding in every jurisdiction in the country, and even if he disagrees with it, as long as he’s working on behalf of the government (i.e. as a prosecutor) he still needs to abide by it by treating married gay couples the same as married straight couples.
That said, it’s also worthwhile mentioning that this guy is a numbskull who doesn’t seem to understand how the U.S. Constitution works at all (you really wonder if he graduated from University of American Samoa Law School): he also believes that non-Christians have no constitutional rights because the Constitution only protects “God-given” rights; never mind that the Constitution in fact never uses the word “God” even for once. (The First Amendment be damned.)
3.2. Now, where do we go from here?
I’m sure that at this point, I’ve stressed enough the grave impacts of prosecutorial misconducts.
When prosecutors undercharge or refuse to charge because they’re biased (whether such bias is ideological, racial, personal, etc.) toward the suspect or against the victim, they’re abusing their discretion.
And with each instance of such abuse comes re-victimization — as crime victims feel that justice is not done and they’re not cared about — as well as the erosion of the general public’s faith in our criminal justice and judicial systems.
At this rate, it’s only going to be a matter of time before someone decides that since the government doesn’t seem to be committed to maintaining law and order, they’d better just take things into their own hands.
Which is a scary scenario none of us would like to see.
As we all know, without any doubt, that vigilantism is extremely dangerous and should never be encouraged in a civilized society — but the question still lingers:
If the prosecutor refuses to do their job, do We the People have any other recourse (aside from voting them out)?
I’m by no means an expert on other countries’ laws and legal systems, and I certainly understand that Japan uses the Romano-Germanic legal system (which drastically differs from the U.S.’ Anglo-American legal system).
But there’s one interesting practice, rather peculiar to the Japanese jurisprudence, that we could perhaps draw some inspiration from. This is how it works:
- The law mandates that when crime victims feel the prosecutor’s decision of nolle prosequi (non-prosecution) is not warranted or when they feel the prosecutor is undercharging the defendant, they may petition to have a “Prosecution Inquest Committee” (検察審査会, PIC) assembled.
- The PIC, modeled after and closely resembling a grand jury, will be made of randomly selected ordinary citizens.
- Evidence will be presented to the PIC, which will then decide whether the prosecutor’s decision is justified.
- If a majority of PIC members believe the prosecutor’s decision is unjustified, a mandatory prosecution procedure will be triggered, in which the court will appoint a special prosecutor for the case.
Of course, this system is not without criticisms — the ethicality of many PIC-initiated prosecutions is often challenged, sometimes slammed as “trial by public opinion.”
There have been a number of cases that were meritless and un-winnable from a legal standpoint, but were nevertheless seen as deserving of prosecution from the layperson’s perspective (in which emotions and subjective perceptions tend to play a bigger role).
In these cases, the defendants usually would end up being acquitted in the end; however, until an acquittal is secured, the defendants would be placed in unfair legal jeopardy as they face potential conviction and imprisonment, not to mention all the legal resources wasted on these cases.
Also, the U.K.’s Crown Prosecution Service has something called “Victims’ Right to Review Scheme” which also appears to be an interesting idea.
Indeed, no solution will ever be perfect. But regardless, there must be a more effective mechanism to curb this rampant, blatant trend of abuse of prosecutorial discretion, or we risk it eventually spinning out of control and witness the society degenerating into lawlessness.
And in the meantime, voters must be better educated on this issue, too.
They must understand that, despite being yet another “sounds-good” and “feels-good” policy, there is absolutely nothing “progressive” about arbitrary, selective enforcement of the law. Regardless of whom it favors or for what cause it serves, abuse of prosecutorial discretion is dangerous and unethical; it is but a hotbed of corruption and a formula for disasters.
