Prosecutorial discretion has become a political battleground in state and local government. Among other initiatives, reform prosecutors in cities like San Francisco (where I teach) have claimed authority to categorically suspend enforcement of certain criminal laws on social-justice grounds. The San Francisco district attorney, for example, campaigned on declining prosecution of certain “quality of life” crimes. Similarly, just this this month, the newly elected Manhattan district attorney released a policy this month ending prosecution “under any circumstances” of crimes including misdemeanor marijuana possession, turnstile jumping, trespassing, driving without a license, interfering with arrest (unless it’s “significantly physical[]”), and resisting arrest for any offense subject to the non-prosecution policy.
While progressives have cheered such blanket policies, critics have argued they contribute to rising crime rates and undermine the rule of law. Both sides, however, have often presumed that all prosecutors nationwide either do or do not have plenary authority to decline enforcement of laws. In fact, as I discuss in a draft paper, there is no uniform answer to this question: the laws of the fifty states vary widely with respect to categorical nonenforcement’s validity.
Beginning with the federal context may help frame the discussion. With respect to federal separation of powers, I have argued that executive policies categorically suspending enforcement of laws are at odds with the President’s duty to ensure faithful execution of the laws, among other features of separation of powers. Of course, federal officials, like their state and local counterparts, cannot realistically enforce every law in every case. But declining enforcement in particular cases, or even adopting internal priorities for enforcement, is different from announcing in advance that a given law will not apply to an entire category of offenses. Taking the latter step is not faithful execution. It amounts in effect to altering the law itself, something the President’s duty of faithful execution was meant to foreclose.
In principle, this same understanding might carry over to state systems, as some critics of nonenforcement have presumed. But at least two features of state governance complicate that inference. First, whereas the federal executive branch is led by a single President, most states have “unbundled” executive branches composed of multiple elected officers (a Governor and Attorney General, for example). Accordingly, although most Governors, like the U.S. President, are obligated to ensure faithful execution of the law, it may be unclear whether and how governors can compel other state law enforcement officers to do so.
Second, nearly every state also has locally elected prosecutors. These provisions for local election—a feature of state law that took hold beginning in the 1830s, well after the adoption of many gubernatorial faithful-execution clauses—could suggest that local electoral preferences should dictate whether state-wide criminal laws are given effect in a particular jurisdiction. Some scholars in fact have argued for this inference, at least if prosecutors disclose their intentions to the electorate ahead of time.
The case for nonenforcement, then, might be stronger in the state context than with respect to the federal government, but ultimately even these features of state law do not support any uniform answer. In fact, different states fit these pieces of the law enforcement puzzle—governors, attorneys general, and local prosecutors—together in different ways with different implications.
At one end of the spectrum, several states (Massachusetts, New Hampshire, and Indiana, to name a few) have constitutional provisions specifically forbidding not only executive suspension of laws, but also the “execution” or “operation” of the laws. These provisions, which apply to all executive officials from the governor down to local prosecutors, expressly foreclose actions like categorical nonenforcement policies that halt execution of state-wide legislative enactments.
A few other states have provisions that, though not so explicit, seem equally designed to foreclose categorical local nonenforcement, notwithstanding local election of prosecutors. In California, for example, the state constitution imposes a “duty” on the state Attorney General to “see that the laws of the State are uniformly and adequately enforced” and to prosecute local offenses if “in the opinion of the Attorney General any law of the State is not being adequately enforced in any county.” Though this provision leaves it up to the state Attorney General to assume prosecution, the duty it imposes on the state AG seems designed to ensure that state laws are enforced, whatever the wishes of local prosecutors.
At the other extreme, some states vest authority over criminal prosecution in local prosecutors while generally providing no mechanism for state-level officials to override local prosecutorial choices. The Mississippi Supreme Court, for example, has interpreted Mississippi law to allow the state attorney general only to “assist,” and not supplant, local elected prosecutors. According to the court, “[i]ntervention of the attorney general into the independent discretion of a local district attorney regarding whether or not to prosecute a criminal case constitutes an impermissible diminution of the statutory power of the district attorney.” Illinois courts, similarly, have held that the state Attorney General “lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority.”
A few other states allow displacement of a local prosecutor, but only in limited circumstances or through specific procedures. To prosecute most types of local cases, the Pennsylvania Attorney General must go to court and “establish[] by a preponderance of the evidence that the district attorney has failed or refused to prosecute and such failure or refusal constitutes abuse of discretion.” Wyoming generally allows the state attorney general to prosecute in place of the local prosecutor only “at the request of the board of county commissioners of the county involved or of the district judge of the judicial district involved.” Insofar as these legal arrangements insulate local prosecutors from outside control, they effectively guarantee that local prosecutors may adopt nonenforcement policies if they so choose, even if state law does not affirmatively authorize such polices.
Finally, in between these extremes, quite a few states permit state-level officials to take over local prosecutorial functions, but impose no particular obligation to do so. These states may well leave the scope of local nonenforcement to a tug-of-war between different levels of government, or might allow state courts and other legal interpreters to draw different conclusions based on the state’s particular history and past practice.
Going forward, debates over prosecutorial policies should attend to these differences in state law and not presume any single nationwide model of prosecutorial authority. In some states, local prosecutors should lack authority to suspend particular laws’ enforcement. In others, they may hold authority to do just that. These differences, moreover, do not track existing partisan divides among states: nonenforcement appears permissible in both Illinois and Mississippi, and impermissible in both Massachusetts and Indiana.
This perspective should lower the stakes of legal and electoral battles in particular jurisdictions: upholding or rejecting categorical nonenforcement in one jurisdiction need not support the same result in other states, much less with respect to the federal government.
At the same time, however, it’s worrisome that that these variations in state law have so far had so little effect. Despite the variations in state law, the categorical approach to nonenforcement has spread nationwide, and prompted equally uniform objections. But state laws are not all the same, and ignorance of state law may carry serious consequences: As Miriam Seifter has observed, intra-state conflicts between branches or levels of government can escalate dangerously because state legal and constitutional limitations are poorly understood and weakly enforced outside of litigation.
To mitigate this problem, scholars and commentators should pay more attention to state law. Giving effect to the fifty states’ varied laws on prosecutorial discretion could be a good place to start.