Stare hard at Philadelphia’s new district attorney, Larry Krasner. He is the poster boy, the first really serious reform prosecutor to be elected. Sure, there are Democrats elected prosecutor, many of whom talk progressive and, to some extent, are engaged in reforms, but compared to Krasner, they barely scratch the surface.
Larry Krasner is going at it hard.
On the same day a Philly.com op-ed was published in which Philadelphia District Attorney Larry Krasner (and Mayor Kenney) admitted the failure that was the “War on Drugs,” in the 1980s and ’90s, the DA’s office announced that it is suing 10 pharmaceutical companies in connection with the opioid epidemic and is dropping all outstanding marijuana possession charges.
Whether it’s the job of a prosecutor to sue anyone is a dubious proposition, but that’s how Krasner is interpreting his mandate. But that he’s “dropping all outstanding marijuana possession charges” is another matter.
If the law makes possession of weed a crime, is it the place of a prosecutor to anoint himself a Super-Legislature, the person who gets to decide which crimes he likes and which crimes he doesn’t, and only prosecute the ones that strike him as bad? We complain that prosecutors possess too much power to charge and overcharge, to dictate sentences, to coerce guilty pleas. If these things are wrong, and they are, then is the use of unilateral fiat in the other direction any more legitimate an exercise of power?
How does Krasner justify this choice?
“I did it because I felt it was the right thing to do,” Krasner said when asked of his motivation. “We could use those resources to solve homicides.”
“Yes!” you cry, “it is the right thing to do!” But you say that because you agree with the outcome. Are you saying that prosecutors should be entitled to do whatever they feel is right? Not every prosecutor feels that same as Krasner. Some might even feel that pot is a heinous drug. Should that prosecutor do what he feels is right too? Prosecutors wield a huge sword, but it’s a double-edged sword.
There are sound reasons for the exercise of discretion in the prosecution of people accused of possession of marijuana. There is an overarching argument that the same substance that is lawful for recreational use in some states but unlawful in others shouldn’t produce such disparate legal results as a really fun party in Colorado and a prison sentence in Pennsylvania.
There is the problem wth law enforcement efforts to arrest individuals for possession of marijuana are overwhelmingly focused on poor and minority communities, such that there is an outrageously disparate number of black and brown defendants arrested, prosecuted and convicted for the crime, while white people pass the joint around without notice.
There are reasons to not prosecute people for possession of marijuana. You may agree with them. You may not. But these are reasons. You may rationally argue that the decision to prosecute or decline should be based on individual cases, the facts and circumstances, rather than the nature of the offense. But these involve reasons.
What doesn’t involve reasons?
“I did it because I felt it was the right thing to do,” Krasner said when asked of his motivation.
This may be so very progressive, but it also very dangerous. The law isn’t what a prosecutor feels is right. It may well play to those who agree that it’s right, but “felt right” is hardly the metric by which prosecutors are entitled to apply, or ignore, the law which they are charged to execute.
As noted, criminal law reform will mostly come from the bottom up, if it comes at all. Despite the fantasy that the last president made a modest dent in reform, it’s fairly certain the current one will do nothing to help. And so, we look to prosecutors in the trenches to do the heavy lifting of eradicating prosecutorial misconduct, law enforcement impropriety and ending the decades of bad law crafted to pander to the “tough on crime” ignoramuses.
But “I felt like it” is just as bad a reason to decline to prosecute as it is to charge crimes for the sake of imposing mandatory minimums. As many eyes are on Krasner as he shows the way to a more rational use of the weapons of prosecution, he’s got to be far more careful in explaining his motivations than spewing “I felt it was the right thing.” That’s not a good enough reason to put people in prison. It’s not a good enough reason to let them out.
There are good reasons for Krasner to make the decisions he’s making, even if some will disagree with his choices. But it’s his job to explain himself better than “I felt like it,” for if that’s the only reason for his decisions, then he’s no better than the prosecutor who ignores the law to deny defendants their constitutional rights because he felt it was the right thing to do as well.