Sunday, November 23, 2014

Prosecutorial Discretion and what it means

You are going to hear a lot in the next few weeks about prosecutorial discretion and how it allows the President to do whatever he wants.  I thought I'd throw a few dissenting opinions your way, just in case the news you are watching chooses not to expound.

Prosecutorial discretion means that given limited resources prosecutors at all levels have to prioritize their resources by deciding which crimes to prosecute.  Example, lots of people smoking a little pot, a few people driving vanloads of marijuana around to sell, you prosecute the vanload guy and you ignore the guy with a joint in his pocket.  Another example, eleven million illegal aliens in the country and some of them are picked up for being illegal aliens while some of them are arrested for murder, rape, assault, etc.  With a limited budget you prosecute and deport the rapists and murderers and you let the others be.  This is a legitimate and necessary act of discretion under our legal system.  There just isn't the money or time to prosecute everyone for every little violation so you prioritize.

What the President has just announced, however, goes far beyond prosecutorial discretion.  He is extending the concept of discretion to legalize the non-felony immigrants.  He is granting them work permits and other benefits that are only available to legal immigrants.  He has basically announced that prosecutorial discretion allows him to not only choose who to prosecute but also to change the legal status of millions of these immigrants.  It is as if choosing to only prosecute drug dealers meant that it was now legal to smoke pot.  It isn't.  The President does not have the power to decide what is legal versus illegal, only the power to decide who to prosecute.

This latest Executive Action of the President may be good policy (although I tend to think not, look for further discussion of immigration from a libertarian perspective later), and it may be what a significant portion of the country wants (although this is not what the polls necessarily show) but it is illegal and a violation of the separation of powers.  Only Congress can pass laws.  Only Congress can make something illegal and only Congress can make something that was previously illegal legal.  They have to pass a law changing the statute.  Absent this action by Congress the President has no authority whatsoever to decide that action made illegal by Congress is now perfectly legal.  This is not prosecutorial discretion, it is imperial dictate and should not stand. 

I would hope that Democrats who support the President's actions would stop and reflect on what could happen under this system when a Republican is president. This action has long term ramifications for how our country is governed and knee jerk support because it is a policy you support or a President you elected may not be the best in the long run.


Cecil Henry said...

'Discretion' here just means state totalitarianism.

The state has the ability to prosecute, coerce and exploit almost all citizens, but thanks to 'discretion', they can pick and choose, always knowing (and ensuring the citizens know) that they can be attacked at any moment.

Such disgusting hypocrisy and parasitism.

heresolong said...

True statement, Cecil, but a fact of life. There are never going to be enough resources to prosecute everyone who commits a crime. Human nature, lots of crimes being committed. One remedy would be to reduce the number of things that are crimes, but then you could reduce the amount of money being spent on prosecutors. Same problem but less of your money being confiscated.

You then open up other problems related to a libertarian society which is that people have to resolve the issues themselves, which is not an easy undertaking even though it would be my preferred society.

I think another tactic that has had some success is to highlight the malicious prosecutions, causing some communities to choose to eliminate the laws that are being abused.