The Bright Line of Prosecutorial Discretion

The topic is immigration.  The question is highly political.  And yet, what comes of it may well prove critical to criminal law at its most mundane.  From the New York Times Room for Debate:

Frustrated by congressional inaction on immigration, President Obama is said to be considering executive orders to protect up to 5 million unauthorized immigrants from deportation, including parents of children who are citizens or legal residents and even more undocumented immigrants who came to the United States as children.

But does the president have the power to decide unilaterally whether to exempt millions of immigrants from deportation?

Before we go any farther, keep your opinions about immigrants, pro or con, to yourself.  Just because the Times says this is about immigration doesn’t make it so.  Rather, the fact that the issue arises in the context of immigration, because it’s not like the president, who, according to Attorney General Holder, strongly believes that crack cocaine should be sentenced on a one to one basis with powdered cocaine, would be capable of using the same argument to accomplish that goal. 

This is about the line drawn in the exercise of prosecutorial discretion as a matter of executive policy.  This is a line that matters in criminal law, and if it can be drawn here, it can be drawn elsewhere. This is a line that, once drawn, cannot be denied later as available for any other exercise of prosecutorial discretion.

For context only, the background to the debate is that Congress has enacted laws relating to immigration that would, if exercised to their fullest, require the deportation of about ten million people. However, Congress has only allocated funds to deport about 4%, or 400,000 of the potential deportees.

The president’s position, using the justification of prosecutorial discretion, is that he has the constitutional authority to allocate resources, the funding for the 4%, as a matter of policy such that he can exempt between 5 to 6 million people, regardless of whether you prefer to call them undocumented aliens or illegals, from deportation.  This has happened, de facto, before, most notably with President Bush, but this is the first time it has been formalized as a matter of executive policy.

Against the constitutionality of this scenario is Josh Blackman, who argues:

But just because the president can’t deport everyone, doesn’t mean he can choose to protect millions. Executive discretion cannot be unfettered, and along the continuum from complete enforcement to nonenforcement, the presumption of unconstitutionality increases. As nonenforcement of the law leans toward thwarting Congress’s statutes, rather than merely conserving resources, prosecutorial discretion turns into an abuse of power.

In favor of the constitutionality of this exercise of prosecutorial discretion is Eric Posner:

Critics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.

Yet the Constitution also gives the president “executive power,” which has always been understood to include the discretionary power to allocate resources among enforcement efforts.

The lines over the line are well drawn.  Posner sums up the real issue at stake:

If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn? It might be surprising that after two centuries of constitutional experience, we don’t know the answer. Probably the reason is that most of the time, the president’s nonenforcement decisions are not controversial. Every day, an executive branch official decides to drop an investigation, or not to prosecute a case, because resources are scarce and the harm caused by a particular legal violation does not seem serious. We don’t object because that’s a sensible thing to do.

While Josh’s position, that at some point we cross the line from prosecutorial discretion into abuse of authority and dereliction of duty, is well taken, he doesn’t offer any argument as to where, and why, that line should be drawn.  As Josh notes, there is a “continuum” between individualized prosecutorial discretion and sweeping abrogation of laws duly enacted by Congress.  Is there a point beyond which constitutional discretion becomes unconstitutional abuse?

Elizabeth Price Foley, a prawf at Florida International University law school, brings the question back to criminal law:

But would it be prosecutorial discretion if the president instructed U.S. attorneys to prosecute only heroin cases, and ignore other drugs prohibited by federal law, such as cocaine, P.C.P. or methamphetamine? What if the president instructed U.S. attorneys not to prosecute any drug case where the arrestee was under age 31, had no felony convictions and was a high school graduate?

Or marijuana, in states that have legalized the use, whether medicinal or recreational?  And what of the flip side, where by executive policy, the Attorney General informed his minions that in the exercise of their prosecutorial discretion, they were not bound by the canons of ethics? How about the exercise of discretion where it involves a policy to not seek the death penalty for any person who has an IQ below 80, or better yet, not at all?

As Posner notes, the question isn’t whether there should be a line beyond which the executive cannot cross, but that no court has, as yet, drawn such a line.  He’s probably correct that it’s a matter of the issue never having been so contentious before, though Josh notes that it would be problematic as no one would ever have standing to raise the claim.

There is a huge void where this controversy falls, which is largely conceded by both sides of the debate.  The question thus becomes which side has the burden of proving the constitutionality or lack thereof, and how would we be capable of determining whether that side was right.

But if this sweeping exercise of prosecutorial discretion is constitutional, the ramifications for many of the outrageous failures of the criminal justice system suddenly shift. The executive can fix them, by mere fiat, based on prosecutorial discretion.  And if the executive says one thing and does another, then he has no excuse.

21 thoughts on “The Bright Line of Prosecutorial Discretion

    1. David M.

      True facts: I have a friend who’s decided to treat life positively. I watched as, in a drugstore, she complimented each pack of crayons on how attractively it was presented.

  1. Scott Henson

    Can only speak for Texas but here it happens all the time, especially on DWI, pot and paraphernalia. In fact, such policies on prosecutorial discretion are openly debated in DA elections.

    In Houston, a DA made an explicit policy not to prosecute “trace” drug cases (sending crack pipes to the crime lab to be scraped for evidence then charging Ds with felony possession). She was defeated in the 2012 primary and the new DA changed the policy back. But nobody ever challenged their authority to set it, nor is it controversial that other Texas DAs charge those cases as Class C (ticket-only) misdemeanor paraphernalia violations. The system is so big, some choices must be made in volume.

    Also, there’s never been any excuse.

  2. Chris Ryan

    This debate (no not talking this post specifically) reminds me a lot of listening to my children when they get caught doing something stupid. But dad…she did it too and you aren’t punishing her!

    Most of the debaters want prosecutors to use their discretion for the debater’s pet interests, but not on someone else’s. I would be worried about a court ruling that banned any ability to flexible, regardless of if you believe that the ability isn’t commonly used well now.

  3. Jake DiMare

    The triple constraints! They’re everywhere…

    Honestly, if Congress doesn’t want to fully fund deportations, but also doesn’t want the President deciding which deportations happen, why don’t they just pass a law specifying priority? Oh, right, because they’d have to actually do something besides blame, complain, and pontificate.

      1. Jake DiMare

        That’s fair, I find it very difficult not to be snarky sometimes.

        My point, which I subsequently discovered the Federalist Society agrees with, is Prosecutortial Discretion includes wide latitude to set priority. I believe this discretion is regardless of resource constraints, which only serve, in this context, to further support the President’s position.

        1. SHG Post author

          I was fair? I’ll try harder.

          No one disputes that there is discretion. Not even “wide latitude.” The question is whether it is unfettered latitude, discretion without limits. Most would say, “of course it’s not unfettered,” but if so, then where does the line of fetter lie? That ain’t so easy to say.

          1. Jake DiMare

            And now I shall try to foist you on your own petard, while referencing back to a conversation we had long ago:

            Where does the fetter lie? By the education you gave me on the subject of Justice, there is nothing but the laws of men make that determination. Hence the point in my earlier comment…If Congress wants more of a say in the prioritization law enforcement then I believe it falls to them to be more specific…

            1. SHG Post author

              Close, but no cigar. Congress doesn’t draw the line between constitutionality and unconstitutionality. That’s the province of the judiciary. Marbury v. Madison. How they do so, however, is often a mystery. In this instance, they have not yet done so, which is both sides see the problem, but neither wins the day.

  4. Levi

    I realize the concepts of prosecutorial discretion and pardon power are different, but does the latter not enter into the equation a bit when the executive is leaning towards clemency against Congress’s wishes? It seems like there would be a high bar to declare any sort of government inaction/clemency as unconstitutional, given the general tone on bounds/limitations of government in the constitution. Plus, in the case at hand these are not crimes that have not yet been committed, but rather have been committed and the executive is deciding what to do about it.

    I know this president has not exactly been generous with his pardon pen, but could he not conceivably (with adequate resources, and without regard to the popularity of it) prosecute all 5MM of these people and then immediately pardon them? I’m just saying that if that is possible, how does it become constitutionally impossible for him to skip the step of prosecuting them?

    1. SHG Post author

      Is it impossible to focus on a concept and not comment on the underlying immigration issue? Again, what part of “this isn’t about immigration” makes you think, “I know, I’ll write about immigration, because that’s what I want to do on someone else’s blog.” Sheesh.

      First, yes, the two powers are very different. The President’s pardon power is his and his alone, to use (or not) as he deems fit. He doesn’t need Congress’ approval. And yet, second, no, that scheme wouldn’t work. Aside from the structural flaws (he can’t prosecute 5 million people at a time, and then pardon them), it doesn’t resolve the problem. They remain undocumented. A pardon won’t change that, and the duty to be in the United States is ongoing, so one day’s pardon doesn’t make the next day lawful. They still need a path to become lawfully here.

      Next guy who leaves a comment about immigration gets banned for life. Maybe.

      1. Levi

        Focusing entirely on the question in your last paragraph, I guess the issue then is that the president can conceivably fix issues by fiat with prosecutorial discretion, but that “fix” has an expiration date as of the next inauguration date. He could also change his mind in the interim, so the official exercise of discretion may be a welcome reprieve to the accused but would not make people “safe” from the criminal justice system. Would it then change to whether this creates an equal protection problem for similar/related crimes?

  5. Ted H.

    Maybe this will be another constitutional moment (a la Ackerman [Ed. Note: Ackerman?]) where we find that there is indeed no limit. Maybe there was, but once previous limits are surpassed, new limits are put in place by implication. Furthermore, the allocation of resources, in an already overly burdened judicial system, would include time allocation of prosecutors as well e.g. we’re not going to spend our limited time dollars going after death penalty cases anymore because they take too long. Congress and the states can step in and change the constitution, or we just keep on going on.

    1. SHG Post author

      And if the government decides that death cases were a poor allocation of scarce resources, that wouldn’t be a terrible thing.

  6. Pingback: Legal Authority for Deferred Deportations of Five Million | Josh Blackman's Blog

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