There’s little new in the New York Times’ lament over the reaction to the new breed of progressive prosecutors. Neither legislators nor judges are taking particularly well to their assertion that they were elected to provide their brand of “justice” to an unjust system and subject to no constraints.
Laws? Feh. Judges? Meh. They were elected to be free to do as they please, subject to no limits but the cries of the righteous.
These Prosecutors Promised Change. Their Power Is Being Stripped Away.
As a new crop of district attorneys takes a different approach to criminal justice, some are seeing their authority removed and their actions blocked in court.
Suddenly, prosecutorial power and authority are now virtues? When they’re your prosecutors, absolutely.
Across the country, similar clashes are playing out as prosecutors who were elected in recent years promising a different approach to criminal justice have seen some of their efforts frustrated. Opponents with a more traditional view of law and order are taking concrete steps to try to block them in court and strip them of discretion or money to run their offices.
Just as activists relish in owning their piece of the power structure, others, like the legislatures that enact laws that these prosecutors simply choose to ignore, or the judges positioned between the defense and the other defense, expected to rubber stamp decisions of district attorneys untainted by the law, resist their failure to respect their governmental functions. And, as the Times article reflects, undermining the election of prosecutors who reject the old “law and order” mold that brought us to mass incarceration, mass misery,
For decades, district attorneys enjoyed almost unlimited discretion in how they could pursue cases. Most of them used that authority to send more and more defendants to prison, helping to drive the nation’s incarceration boom.
What is now at stake is the latitude of prosecutors to make decisions meant to slow, instead of accelerate, the pipeline to prison.
Except this isn’t quite an accurate characterization of what happened before, or what’s happening now. Sure, it’s the simplistic way activists prefer to describe it, but they have an unfortunate tendency to gloss over the salient details to their own advantage, preying upon the toxic combination of ignorance and desperate belief to whip their fans into a frenzy.
For decades, district attorneys enjoyed the discretion they were expressly given by legislatures. They didn’t steal it. They didn’t make it up. It was handed them on a silver platter and they used it exactly the way legislatures wanted them to. Inherent in pushing the “incarceration boom” was that leges, prosecutors, judges and, hold on to your hats, the public were all in favor of it.
It wasn’t that prosecutors were usurping power. They were doing exactly what everyone expected and wanted them to do. Much as many of us fought against this unconstrained use of power, we weren’t legislators, judges or governors. We had no power to prevent the exercise of authority in the most harsh, most counterproductive ways.
Comparing the exercise of discretion by progressive prosecutors, who lack the support of legislatures, governors and judges, to old “tough on crime” differently-caceral prosecutors is a lie, both from the fact that they are not exercising discretion in individual cases but categorically as well as failing to take care to execute the duties of the office as determined by the legislatures.
And the Times condemns the effort to strip discretion from progressive prosecutors to do as they promised, as they were elected to do.
“When D.A.s were ramping up, no one had a problem,” said Miriam Krinsky, a former federal prosecutor who is executive director of Fair and Just Prosecution, an umbrella group of district attorneys seeking change. “Now we’re in a different moment, where some are trying to de-incarcerate, and some people invested in the status quo are trying to clip their wings.”
But what about Rensselaer County District Attorney Joel Abelove, who deliberately sabotaged the potential attorney general’s prosecution of Troy Police Sgt. Randall French for the murder of Edson Thevenin? Abelove then lied about it and was indicted for perjury. The indictment was dismissed as the court held that the AG exceeded his jurisdiction by sticking his nose into a job that only a district attorney could do.
The Appellate Division, Third Department, has now reversed the dismissal, reinstating the indictment against former District Attorney Abelove.
Here, as typical under these situations, OAG obtained authority to conduct the 2017 grand jury investigation through a combination of Executive Law § 63 (2) and EO163. The statute gives OAG power, but only when the Governor “require[s]” OAG to act (Executive Law § 63 [2]). Relatedly, the Governor would have no authority to give powers to the Attorney General – through an executive order or otherwise – without the Legislature having granted the Governor that ability.
The lege authorized, by statute, the governor to authorize, by executive order, the attorney general to seize the jurisdiction of a local district attorney. It was done when local prosecutors, like Abelove, exercised discretion by failing to prosecute cops like French for killing a guy. And there is an exceptionally good chance that this decision will bring cheers of appreciation from criminal reformers, as the prosecutor who made sure a killer cop would walk won’t get away with it.
Will they recognize that this is the same exercise of authority to strip discretion from prosecutors that they applaud when the discretion is exercised to no longer prosecute conduct they don’t feel should be crimes?
The Third Department “clipped [Abelove’s] wings” when he fought the attorney general’s pushing her (as Eric Schneiderman was unceremoniously ousted for his #MeToo roughness and Letitia James was elected in his stead) way into the district attorney’s job, because the DA wouldn’t follow the law. This is the flip side of giving prosecutors power beyond anything the legislature, the governor, the judges imagined.
While one can appreciate that the Abelove outcome is different than refusing to prosecute petty theft cases, it’s only a matter of preference, not law. And, indeed, when the tide turns, as it always does, this won’t make the absolute, unconstrained power of prosecutors you handed them with love and blind faith any more palatable.
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SHG,
Although the analogy is not perfect, and I don’t mean to criticize nor lionize him, once President Obama decided to give the DACA kids mercy on a class wide basis, it was inevitable. Local politicians when picking preferred prosecutor candidates got the notion that the preferred prosecutor could get elected by promising to prosecute or not depending upon which flavor of ice cream was preferred. Once elected, there was little anyone could do.
The “rule of law” BS is spread too far and wide, but your post describes a trend that deeply troubles anyone who seriously thinks about that rule. Of course, the foregoing is contingent upon my local prosecutor promising not to prosecute old people like me for reckless driving.*
All the best.
RGK
* I swerve wildly at minivans and scream profanities at the children in safety seats, who inevitably have snot running down their noses, while Mom gabs on a cell phone and refuses to get over to the right lane so I can pass her.
Having been a passenger in a car you were driving, no explanation necessary, Judge.
Your DACA analogy is informative, as President Obama’s “pen and phone” were used to address an exigent “catastrophe” (though largely of his own making, given his zeal toward deportations) when Congress was paralyzed and failed to fix what both teams acknowledged needing fixing.
But I think there’s an additional component here, that some very smart activists recognized that district attorney was the weak link in the process, a position few really cared much about that could be flipped by activist turnout and could exercise substantial discretion without much effective oversight. It’s hard to flip a legislature or statehouse, but it’s easy to seize a DA’s office.
If you will, it’s the old joke about which part of the body rules.
President Obama decided to give the DACA kids mercy on a class wide basis, it was inevitable…”
“The public sucks; fuck hope”
– George Carlin
Democracy is the theory that the common people know what they want, and deserve to get it good and hard.
H. L. Mencken
“People invested in the status quo. . .”
When a particular system is substantially imperfect, and has been for a long time, it is because some powerful constituency wants it to be so. “Progressives” can elect whomever, but it won’t make those “people invested in the status quo” go away.
For a very long time, the surest route to getting elected was to be tough on crime, which is why Dem candidates invariably tried to out-tough Reps.
At the moment, that doesn’t appear to be the way to get the Dem nomination, but it has yet to be seen whether it can win an election. Bear in mind, Hillary should have beaten the least qualified candidate in the history of this nation 80-20%.
Something of note has happened in U.S. politics since 2008. When Obama ran, party and platform were largely irrelevant. The nominee would be the candidate who successfully imposed his or her organization and platform on the “party.” It was a contest of candidates.
By contrast, for 2020, the candidates are all but irrelevant. Whomever becomes the Democratic nominee comes with the rigid, intersectionalist ideology and the hat on the pole. The incumbent comes with four more years of paralysis. That is the choice voters will have in 2020. Is the continuing, federal paralysis better or worse than going back to hijacking federal agencies in order to impose the ideology by fiat? The public will be eating a dung sandwich, but can chose between a plain dung sandwich or a dung sandwich with a spoiled piece of lettuce.
Decades of corruption have accelerated political entropy, just like the years before the fall of the Roman Republic. Someday soon I imagine a patriotic general will cross the Rubrik (now known as the Potomac) with the noblest of intentions. Thanks, Boomers!
You’re doing it again, Jake.
I shall recite the preamble 10x and send you a box of donuts, as an act of contrition.
Jelly, please.