When District Attorneys Become Gods

New York City Mayor Bill de Blasio announced that he’s now in favor of safe injection sites. Whether you think it’s a good idea (I do) or not isn’t important for the purpose of this post. What is important is that it comes from the mayor. Not Cy Vance, the district attorney.

Why? It’s not Vance’s job. In contrast, Philadelphia district attorney Larry Krasner announced the same for his jurisdiction, to the applause of reformers. It’s understandable, as they strongly support the initiative, and it wasn’t coming from anyone but Krasner. He also announced that he would stop prosecuting people for shooting up there. And for using pot.

These may well be great initiatives, the ones people had long hoped would change. But they changed not because legislatures changed the laws, or executives changed the policies, but because reform district attorneys decided to change their job. This has become the new push for reform.

I credit Fordham prawf John Pfaff for raising awareness of the significance of prosecutorial discretion and overreach in the system, where they’ve gained inordinate power over criminal law outcomes. While this may oversimplify the problem, and focus myopically on one tree in the forest, his point was crucial, that prosecutors have too much control. And to the extent they don’t have direct control, they exert enormous influence over legislation to maintain their control.

Recognizing that there was an opportunity to change the horse rather than the rider, advocates took a new tack. They pushed to challenge district attorneys, most of whom run unopposed as incumbents and are unabashedly carceral, pro-cop and strongly pro-law and order. It’s kind of a natural position to take, regardless of whether they run as Democrat or Republican. It’s the nature of the job.

So, initiatives have begun to oust these law and order DAs and replace them with reform DAs. They’re supported by serious reformers. They’re supported by goofballs.* Their goal is to put Larry Kasners into prosecutors’ chairs across the nation. Yay?

I’m deeply ambivalent about this. For those focused on outcomes rather than process, trying to elect reform prosecutors seems like the most direct route to changing myriad problems with the damage done by the legal system. Elect a Krasner and the marijuana laws disappear. Isn’t that what we want?

Or do we want prosecutors who adhere to the Constitution, diligently respect the rights of defendants, demonstrate integrity, adhere to their lawful responsibilities and, as Justice Jackson said, “do justice”?  But their job is limited. It is to prosecute those who violate the law. We need someone to perform that function.

Despite all the teary-eyed anecdotes of sad people harmed by the system, there are sad people harmed by crime. When we keep our eye peeled on one side, we fail to see the other. There are some bad dudes out there who do bad things to good people. Somebody needs to prosecute these people.

But the drug war doesn’t involve bad dudes? Well not in the same way, although I’ve known a few guys who admire Tony Montana over the years. There are some very violent, very twisted people in the drug business who aren’t the sort of people you would invite over for dinner. If drugs were legal, they wouldn’t be in a position to do as much harm as they are, but that’s not the point either. The point is that not everyone in the drug trade is a non-violent well-intended soul.

What we have now are prosecutors with too much power and the wrong sort of discretion. They see all accused as their crimes, demanding excessive incarceration because, well, all criminals are evil. But is the answer to prosecutors with too much power to give them even more power, provided they exercise it in a way we like better?

If prosecutors are encouraged to be Super-Legislators and Super-Judges, able to ignore laws at will such as Krasner refusing to prosecute weed cases, we have created Gods. They’re not constrained by laws, but by their personal agendas. When these align with ours, it’s easy to applaud. Will we do the same when these Gods of the Criminal Justice System decide not to prosecute rapists?

We hate that they refuse to prosecute cops for needlessly killing people, and do whatever we can to shame them. Yet, we have no problem with their ignoring the laws enacted by their respective legislatures on other crimes?

What if their choices shift from pot to, say, ignoring Brady because it will let bad dudes walk? Not “our type of DAs,” you say, but what if a woke DA lets drug cases slide but vigorously prosecutes sex offenses because of his sensitivity to changing views on consent. He’s all for Brady on some cases, but screw the guys women complain about.

When actions are predicated on outcomes rather than the principles that inform the position, there will be travesties of law occurring. They may not be the travesties that bring tears to your eyes, at least for the moment, because these reform prosecutors will cut loose the people you like and destroy the people you don’t. By whatever means necessary. But times change, and today’s favored defendant becomes tomorrow’s hated monster.

If the laws are wrong, it’s the job of legislatures to correct them. If the policy is misguided, it’s the role of the chief executive to change it. As for district attorneys, we can, and should, demand integrity and respect for the Constitution. But I don’t want them to be made into Gods, above the law and free to do as they please.

*At Injustice Today, Shaun King writes “Listen to me — I study injustice for a living.” There is some serious, thoughtful stuff there, but King, well-intended and followed as he may be, is a dolt.

21 comments on “When District Attorneys Become Gods

  1. Scott Jacobs

    It’s like the DA in Philly just finished watching season 2 of The Wire…

    1. SHG Post author

      Krasner has his heart in the right place, but that doesn’t tell us much about his head.

    1. SHG Post author

      That’s pretty much true of all good ideas. Notice BdB building a local prison on Sutton Place?

      1. MonitorsMost

        Prisons are great to be around. Non-incarcerated criminals avoid hanging around prisons. Free-range heroin addicts, while safer with clean needles, still create negative externalities.

          1. MonitorsMost

            No, they still aren’t organic nor GMO free. Although the heroin is usually free trade if that appeals to you. None of that subsidized opioid derivatives.

  2. PseudonymousKid

    Dear Papa,

    It’s just another episode in our lawless times. Sheriff Arpaio was once an aberration, but threatens to become the norm. Krasner is his mirror image, using the same brazen disregard, but for the “good” team. He shouldn’t Trump in his position, but the temptation to think of himself as different than the rest is too much to resist. Gods like him must feed off the worship they receive.

    Much love,
    PK

    1. SHG Post author

      Crazy Joe came into office as a reform sheriff, because the one before him was literally Hitler. True story.

      1. PseudonymousKid

        Our gods are a part of a larger pantheon and mythology. The strong do what they can, the weak suffer what they must.

  3. Charles

    Microwaved reform is ready in a minute but has too much salt to be good for you long-term. Reform tastes best when made from scratch. But you have to know how to cook.

  4. John Barleycorn

    Or what happens when Christopher Robin turns out to be Pooh’s alter ego and not the other way around…

    null

    P.S. Does all this mean you will be supporting Eeyore for president in 2020?

    1. B. McLeod

      I would have supported Eeyore for president in 2016. I support Eeyore for president right now.

  5. Jacques

    Worth pointing out that this is a symptom of much broader systemic issues. If voters are finding work arounds to unpopular laws by electing prosecutors who won’t enforce those laws, it shows that the legislative process does not reflect the will of the portion of the populace who elected that prosecutor. Gerrymandered electoral maps and blatant voter suppression are going to lead to laws that can’t really be called democratic, so voters will find a workarounds.

    If this ain’t a stark symptom of institutional breakdown, I don’t know what is. Bad vibes in weird times.

    1. SHG Post author

      Worth pointing out…

      This being a law blog (lawyers and judges and all), probably not worth pointing out. Not even a little bit.

  6. Miles

    I saw on the twitters that Rory Fleming from Harvard’s Fair Punishment project began tweeting about this post, and you suggested he leave a comment here if he wanted to. I see he didn’t. Putting aside what he was saying on Twitter, it was revealing that he was happy to tweet to the choir but wouldn’t confront the very real issues raised here.

    It seems that the activists are full of zeal when it comes to preaching to the choir, but run away when their easy answers to complex problems are questioned.

    1. SHG Post author

      Unfortunately, solutions that don’t work, or will be turned around and abused, aren’t solutions. But coming up with real answers requires thinking and being able to withstand scrutiny.

      Activists hate scrutiny even more than thinking. It makes their head hurt and makes them cry. I, too, am sorry that Rory chose to hide, but that’s Rory.

  7. Alan

    The Jackson piece you linked says “We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning, What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”

    Isn’t that (selecting the offenses that cause the greatest public harm) entirely consistent with Krasner’s reportedly “stress[ing] that the policy only applies to simple possession, not charges like possession with intent to deliver or selling it”?

    Where are you drawing the line? Are you saying that prosecutors must prosecute at least one case per year (decade?) of every last offense in the statutes? Or it’s okay if there’s zero prosecutions of a particular offense as long as this isn’t pre-announced? Or it’s only okay if the police aren’t referring any cases?

    1. SHG Post author

      There is a clear difference between the exercise of discretion based upon individualized facts and circumstances of a case and a blanket decision in advance to refuse to enforce a law duly enacted by the legislative branch of government. This ain’t hard stuff.

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