Testing Categorical Prosecutorial Discretion

What if an elected official ordered his subordinate, a lawyer, to issue a legal opinion that the law permitted the elected official to do something it did not? No, not President Trump ordering the attorney general to assert that the Pardon Power allows him to pardon himself. Not this time, anyway. Rather, the newly elected Los Angeles County District Attorney, George Gascón, is being sued by the union representing his subordinates for directing them not to apply charging enhancements.

The union representing Los Angeles County prosecutors has sued their boss, newly elected District Attorney George Gascón, over his attempt to impose justice reforms.

The lawsuit filed in Los Angeles County Superior Court on Wednesday aims to gut Gascón’s platform by proposing to end his mandate to stop seeking prior felony conviction enhancements — including for gun possession, gang membership and violating the “three strikes” law — that lengthen sentences when suspects are convicted.

This has nothing to do with whether you agree with these enhancements or think they reflect sound policy. For the most part, they’re awful ideas representing the sort of mindless knee-jerk ratcheting created by legislatures to pander to the public in reaction to particular outrages, almost always creating terrible collateral problems and Draconian unintended consequences. They’re bad. But they’re still law.

The Association of Deputy District Attorneys for Los Angeles County argues in the lawsuit that deputy district attorneys cannot follow the directives without violating state penal code.

“The directives violate California law, which imposes a mandatory duty on prosecutors to plead and prove strike priors,” the union said in a statement. “Dismissals of those priors can only be based on individual circumstances, not a blanket policy.”

And that has long been a fundamental problem with much of the agenda of progressive prosecutors, as discussed here with some regularity, that the exercise of discretion, authorized and necessary in order to address individualized cases, does not extent to “blanket policies,” or as I prefer to characterize it, categorical discretion.

No matter how much you disagree with California law, it nonetheless is what the state legislature enacted and the governor signed. It is the considered (stop laughing) decision of the law-making branches of government that this is how the criminal legal system of the state should be run. You don’t have to like it. Gascón doesn’t. I don’t either. Who cares? We’re not the legislature.

What is happening is that prosecutors, on their own, are deciding what acts of their state legislatures and governors are worthy of enforcing. If an individual prosecutor doesn’t like a law, or even an entire niche of law, he just says “meh” and, poof, the law ceases to be enforced, as if it doesn’t exist. Except it does exist. Who cares if all the elected lawmakers in a bicameral legislature have argued for days, weeks, months, agonizing over whether to enact a law, how to word it, where to draw lines and what crossing those lines will mean? Along comes a newly elected local prosecutor who announced, “I dunno, I don’t think weed should be a crime, so neither I nor any deputy in my office will prosecutor anyone for weed.”

Now, you may well agree that possession of marijuana shouldn’t be a crime, and so you applaud this move because you prefer the outcome. Of course, the place to make your case and win your cause isn’t with the prosecutor, that marijuana should no longer be prosecuted, but in the legislature, where criminal laws pertaining to marijuana should be repealed. But that’s hard, involves lots of people, lots of elections, and could take forever, and still prove likely to fail. Instead, you need only convince and elect one person, a local district attorney, who will then override the entirety of the lawmaking system of government with a shrug.

But it’s weed, you cry? What about larceny? What if it was a different law that you really want enforced but they don’t. What if it’s not just criminal laws being ignored, but procedural laws? What if a prosecutor decided he was going to toss some defendants with skin color or genitalia he disfavored into black holes for a few weeks before bringing them to court? What then?

What if you aren’t the perpetrator of a now-ignored crime, but the victim?

Then again, it’s not as if Gascón doesn’t come by his position honestly.

Gascón said Los Angeles County voters “embraced” the effort when they elected him.

The voters elected Gascón, and it’s not as if he was unclear about what he planned to do if elected. Is it wrong that he’s merely keeping his promises? On the other hand, does the fact that the voters elected him mean that the processes of governance are thrown out the window and he’s unconstrained by law? Do the LA County voters get to reinvent their state government by electing a progressive prosecutor?

“This new approach will take some fine-tuning and a tolerance for change,” he said in a statement. “I invite open and respectful debate based on the facts. … However, the people have spoken, the direction is clear and, in the end, we all want the same things – safety and equal justice under the law.”

That we “all want the same things” may be a bit dubious, but no matter. The question is how we achieve them, and the mechanisms by which that decision is made.

For the deputy district attorneys under Gascón’s command, this presents a problem. They are legally and ethically obliged to do as the law mandates, but they are directed by their boss to do otherwise. Is that how law works?

Even if you agree with Gascón’s views, that these laws are bad and shouldn’t be enforced, does that relieve his deps from their legal and ethical duties? If it’s good for Gascón, because you agree with him, is it good for less benevolent governmental officials to pick and choose which laws they like and ignore the rest? Perhaps this suit will determine whether categorical refusal to enforce duly enacted law is within the discretion of a local prosecutor. But if so, consider what that means when the prosecutor doesn’t favor doing things that make you smile.

13 thoughts on “Testing Categorical Prosecutorial Discretion

  1. Hunting Guy

    H. L. Mencken.

    “ An idealist is one who, on noticing that roses smell better than a cabbage, concludes that it will also make better soup.”

  2. Rengit

    As attorneys, and also in the case of DAs as public officials, we take an oath to uphold the U.S. constitution, the state constitution, and the law generally. Saying that you will ignore the acts of the legislature, which I think most people would consider to be “the law” so long as they are upheld by the judiciary (also popularly conceived as “the law”), without violating your professional and public oath amounts to an embrace of the Judge Dredd-theory that it is in fact the enforcers of the law who are really “the law.”

    And in that case why have legislatures or independent judges?

  3. El_Suerte

    First, everyone should read the complaint from the ADDALA website (I’d post the link for convenience, but rules). Really interesting stuff.

    Second, I don’t think they’ve established a ministerial duty to apply enhancements/charges. If there was, it seems like that would conflict with plea bargains and discretion as otherwise practiced.

    Third, there’s no functional difference between categorical and individual discretion for the sufficiently determined. This situation is reminiscent of the Virginia re-enfranchisment fracas in 2014. The governor tried to restore felon voting rights en mass. The state SC ruled that it could only be done by individual acts. The governor used an autopen to sign tens of thousands restorations.

    1. SHG Post author

      Here’s the petition. It’s curious that they argue that pleading and proving enhancements is “ministerial” and mandatory, as you’re right that it would appear to preclude any discretion, individual or categorical, in plea bargaining.

      Although a district attorney has discretion to determine what charges to file (if any) in any particular case, the district attorney cannot wholly decline to exercise that discretion by indiscriminately prohibiting the prosecution of all violations of certain offenses. Simply put, Respondents have a ministerial duty to enforce the law and to exercise their prosecutorial discretion in particular cases. Respondents have failed, and are failing, to do either.

      If the duty is ministerial, then it cannot, by definition, be discretionary. It appears that they’re painting themselves into a corner.

      As for the analogy to voting rights, I’m not sure that coming up with ways to circumvent the law is as great a solution as some folks believe. There’s a lot of that going around, but it’s a “solution” that cuts both ways.

      1. Kathryn M Kase

        They’re calling it a ministerial duty because mandamus applies only to ministerial duties.

        1. SHG Post author

          No one forced them to seek mandamus, but even so, they might have argued it was ministerial in consideration, not application. Yet they didn’t.

  4. Chaswjd

    How is a blanket policy an exercise of discretion? I had thought discretion entailed an evaluation of individual circumstances. On the judicial side, appellate courts have reversed judges who have made “discretionary” rulings which were really enforcement of blanket policies.

  5. Kathryn M Kase

    The precedent for Gascon’s exercise is found in other elected prosecutors’ decisions to require prosecution of certain charges to the fullest extent allowed by law. We have seen this with DWI cases, child sex offenses — and previously in various Texas and Arizona counties, elected DAs have decreed that the death penalty would be sought in every single capital case. Fewer people — and appellate courts — seem to flip their lids over that. Gee, I wonder why?

    1. SHG Post author

      When they did it, we argued it was wrong to refuse to exercise individualized discretion. Is it any different when Gascon does it?

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