Failure To Execute: The Prosecutor’s Veto

When Florida State Attorney Aramis Ayala announced the death penalty was off the table under her tenure, there was thunderous applause by some and denouncement by others.

“I will not be seeking the death penalty in the cases handled in my office,” Ayala said. “Let me be very clear, however, I will continue to hold people who do harm to this community accountable for their actions.”

Both sides took their respective position based upon their view of the death penalty. But what of the means, notwithstanding the ends? Was it up to Ayala to decide that the law enacted by the legislative branch of government was not to her liking, and so she opted to not enforce it?

The New York Times notes that marijuana pops in New York City result in significantly disparate treatment for blacks and Latinos.

New York City was scaling back its stop-and-frisk program even before a federal judge ruled in 2013 that the tactics underlying it violated the constitutional rights of minority citizens. It’s hard not to look at marijuana arrests today without thinking of that saga. Although the city has reduced the number of arrests for low-level marijuana possession, black and Latino New Yorkers are far more likely to be arrested for smoking in public than whites, who are just as likely to use marijuana.

Notably, that little twist in the last sentence compares “smoking in public” with “likely to use marijuana.”* Whites may use weed with abandon, but if it happens in the privacy of their Sutton Place townhouse, then it’s not the same thing. But I digress only to point out how apples get compared to Chevys so as to confuse an issue.

These arrests have virtually no public safety benefit and can cause lasting damage to people who often have had no other contact with the criminal justice system. Charges are typically dismissed if people stay out of trouble for a year, but in that period, they can be denied jobs, housing and entry into the armed services.

Whether pot should be decriminalized, if not legalized, is a matter of some debate, To simply assert there is “no public safety benefit” is a bit facile, even if one agrees. But agreeing, and believing that this is totally true, is one of the great joys of living in a democracy. You see, we get to vote, and as voters, we get to elect people to office who reflect our values and beliefs. And that’s why we get the laws we deserve, good and hard.

Oh wait. If that was true, then the Times would be arguing for the New York State Legislature to change the law. But it’s not.

The city needs to do more to minimize arrests. District attorneys can take the lead by refusing to prosecute most, if not all, of these cases.

Under Section 221.10 of the Penal Law of the State of New York, smoking weed in public is a crime.

Criminal possession of marihuana in the fifth degree.

A person is guilty of criminal possession of marihuana in the fifth
degree when he knowingly and unlawfully possesses:

1. marihuana in a public place, as defined in section 240.00 of this
chapter, and such marihuana is burning or open to public view; or
2. one or more preparations, compounds, mixtures or substances
containing marihuana and the preparations, compounds, mixtures or
substances are of an aggregate weight of more than twenty-five grams.

Criminal possession of marihuana in the fifth degree is a class B misdemeanor.

Now, it’s certainly arguable that this shouldn’t be a crime, but at the moment, it is, most assuredly, a crime. Not a crime like murder, but then, it’s not punishable like murder. It’s a B misdmeanor, and it’s most likely to draw an ACD, an adjournment in contemplation of dismissal, which means if you don’t get tossed within a year (it’s a year for drugs, including pot, though only six months for other misdemeanors), the case is dismissed.

But as the Times notes, that means the burden of having an open charge is on one’s shoulder for a year (actually, it may be forever, as a rap sheet usually states the bust and notes the ACD as the disposition, so it’s there in perpetuity for future employers to see. But the Times folks don’t know what rap sheets look like, so they wouldn’t know this). Plus, the defendant has to go to court, miss work, maybe pay for a lawyer. And if he somehow misses the court appearance, a warrant will be issued for his arrest, which will also be on his rap sheet. When he gets tossed the next time and they run his prints, there will be no DAT for him. He’s going in and bail will be sought.

So it’s a really sucky scenario for blacks and Latinos, a law that may well offend a great many people and a call to arms by the New York Times for prosecutors to end the madness. What this means is that District Attorneys, elected officials of the Executive Branch of government, should be capable of engaging in a categorical veto of the law as enacted by the Assembly and Senate, the bicameral legislative branch of government, when the law does not comport with their personal notion of what the law should be.

While Justice Jackson admonished prosecutors (yes, federal, but that was just the audience), to “do justice,” that was in the exercise of individualized discretion, that they not use their awesome power to do an injustice. Here, the Times calls for prosecutors to divorce themselves from the law and their duty, to free themselves from the constraints of prosecuting violations of law as decided by the legislature.

When it comes to the death penalty, we cry “Yes!” When it comes to smoking weed, we scream “end the injustice”! We like these goals, and so we overlook the means by which they’re achieved. But do we really want prosecutors becoming super-legislators, deciding which duly enacted law they like and enforcing them, and which they don’t and not enforcing them? The governor can veto a law, and the legislature can override the veto. Yet District Attorneys would be more powerful than the governor, as there is no mechanism to override a choice to ignore a law.

The state missed an opportunity to fix this problem five years ago when a bill that would have made public display of marijuana an offense similar to a traffic violation — rather than a crime — died in the Legislature. Until lawmakers act, it’s up to the city’s criminal justice system, particularly the district attorneys, to bring fairness and sanity to these cases.

While civics may not be a strength of the editorial board, the solution to laws it doesn’t like isn’t to confer even greater power on prosecutors, to make their categorical discretion above the law. It is the legislature’s job to “fix this problem,” and if district attorneys can “bring fairness and sanity” when the Times calls for it, it can similarly bring “fairness and sanity” when drug warriors call for it as well. Or, prosecutors can do their jobs, as can legislators, which includes the exercise of discretion on an individualized basis, and not because their power is unlimited.

*A quirk of New York law is that it uses the spelling “marihuana.”

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