Another Dose of Prosecutorial Discretion

Here’s a footnote to my recent post on prosecutorial discretion. Of course, the Grand Jury verdict not to indict Darren Wilson in Ferguson was a product of prosecutor McCulloch’s decision to perform a non-directive prosecution accompanied by a “jury dump” without benefit of clear guidelines and instructions. This had the predictable result that the jury would carry on its own trial, not only absent vigorous prosecution, but by all accounts a prosecution that played more of the role of a defense attorney then a representative of law enforcement prosecuting a crime.

The way McCulloch proceeded in the case is almost never done by prosecutors and it illustrated perfectly the contrast between prosecution for me, and discretion for thee, the very mark of a legal system that is broken, failing to produce equal justice for all, under the law. This is perfectly acceptable to many Americans when it is not their ox that is being gored. So, we recently heard thunderous recriminations from the right over the President’s executive orders on immigration, but perpetual loud silence about the IRS’s failure to enforce the law prohibiting tax exemptions for claimed 501 (c) (4) organizations that are not exclusively engaged in social welfare activities. Now, we’re seeing rage against a prosecutor who obviously fixed an unjust outcome in a prosecution he did not want to engage is at all. The rage is justified, of course, and there are many lessons we can draw from Ferguson, but surely one of them is that we need to limit prosecutorial discretion. It gives prosecutors far too much power to ‘fix’ justice, which in various ways they do all the time.

3 responses to “Another Dose of Prosecutorial Discretion

  1. Heartily agree, espeically where there is a conflict of interest. The prosecutor who is supposed to seek the indictment is employed by the local gov’t and has an interest in not undermining local law enforcement, including police who is also employed by the same local gov’t. It’s a conflict of interest. Crimes committed by gov’t employees should be prosecuted by independent public interest prosecutors, not by their co-workers.

  2. Steven Greenberg

    Perhaps Rob Hollander has the better solution. Taking away prosecutors discretion because you don’t like the way one prosecutor used his discretion in one case is not a good idea. There is a reason why we give government officials some discretion. Like zero tolerance policies, it frequently leads to zero intelligence outcomes.

    It is just impossible to write any law or rule that covers every possible nuance. In fact, that is exactly how some criminals come up with their schemes. They look for loopholes in the law.

    No matter how closely you pay attention to the details, some judge will come along and find a way to say that the words mean the exact opposite of what they were intended to mean. Just look at many recent Supreme Court decisions.

    According to the recent book “Corruption”by Zephyr Teachout, the Supreme Court is interpreting the Constitution’s attempt to rein in corruption in exactly the opposite way that the framers had intended. The framers considered corruption to include the subtle ways that the giving of money to government officers would influence their behavior. They wanted the statutes against corruption to not be limited to cases where you could prove a government officer took a specific action in response to an offer of money for that action.

  3. The judge should not have allowed McColluch to proceed in this manner. The judge should have cut McColluch off the instant he started to dump what would have been construed as evidence for the defense. If McColluch continued to insist on this strategy, then the judge should have dismissed the jury. Then the judge should have told McColluch to either prosecute or not based on the evidence held by the prosecutor’s office. Grand jury hearings are simply not run this way and shouldn’t be run this way. When a judge allows this type of behavior from the prosecutor, it generally insinuates that the judge and the prosecutor had a pre-trial arrangement.