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Prosecutorial Discretion vs Directive: Impacts on Policy & Policing

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Linda-Marie Sundstrom & Mark Kling
March 17, 2021

Our criminal justice system has many moving parts. Laws are:

  • Passed by the legislative branch or a vote of people.
  • Carried out by law enforcement.
  • Charged by the District Attorney.
  • Upheld in the courts.

Once laws are enacted, the criminal justice system allows for discretion. But where is the line between using discretion (not enforcing laws on a case-by-case basis) or disregarding the Rule of Law entirely? When one branch chooses not to enforce a law, what are the downstream impacts? A recent California injunction has called this issue into question.

Police have discretion to cite, arrest or give warnings for violations of law. Deputy District Attorneys (DDAs) can decide to charge a person with various criminal codes, choose not to file charges or choose not to add sentencing enhancements that are upheld by the court. But recently, District Attorneys, in several parts of the country, have issued directives to their DDAs prohibiting them from charging various criminal codes because the District Attorney did not philosophically agree with the law. Is this an example of prosecutorial discretion, or a breach of the duty to uphold the Rule of Law?

Bills, Referendums & Prosecutorial Discretion

In 2018, the State of California’s legislature passed Senate Bill 10, which eliminated cash bail for most misdemeanor crimes. The Governor signed the bill to take effect in 2019. However, a referendum was drafted to halt the implementation of the law and repeal the Senate Bill. The referendum went on the November 2020 ballot, and SB-10 was repealed by voters 55%-45%. The vote meant the cash bail system (which SB-10 tried to eliminate) would remain in effect throughout the state.

One month later, a newly elected District Attorney in California issued a directive to his DDAs. Even though California voters chose to retain the cash bail system, he believed it was time for a change and personally decided to eliminate cash bail. His official directive to his DDAs stated they shall not request cash bail for any misdemeanor, non-serious or non-violent felony offenses. The District Attorney believed that he could not wait for statewide reform before imposing meaningful changes to the system. He explained that the changes reflected his values and, therefore, by extension, the values of the people of his county.

Changing Roles

Over the past few years, communities are realizing District Attorney positions, across the country, exercise great, unilateral discretion and power over the criminal justice system. These District Attorney elections are attracting more attention, along with more agenda-driven financial campaign support, to enable the election of DAs who can carry out issue agendas that expeditiously override the current Rule of Law. Is leveraging the power of the District Attorney position the correct path to true criminal justice reform, by bypassing the proverbial “red tape” of getting agreement from the legislative branch or the vote of the people?

A District Attorney may, out of a desire to mitigate adverse impacts of incarceration (especially impacting underserved populations), decree that DDAs shall not charge crimes such as drug possession, public intoxication or prostitution, among many others. Some District Attorneys will prohibit charging a variety of crimes, or adding enhancements, in favor of directing those violators to services and treatment providers.

Impacts on Community, Policing and the Courts

Once a District Attorney sets forth a directive prohibiting DDAs from charging a variety of crimes, it results in a de facto law and serves to override the established law. For example, if it is known that a DDA is prevented from charging a crime of drug possession, law enforcement personnel are unlikely to arrest people committing the offense, and the public are unlikely to report the crime. If the community does not report a crime, if arrests are no longer made (because DDAs cannot charge the crime) and if the cases never come before a judge, it may be unlikely that the intended mitigation assistance (services and treatments) will ever materialize.

Preliminary Injunction

California’s Three Strikes Law requires (among other things) that if a person is convicted of any felony with two or more prior strikes, the person is mandated to state prison for a minimum term of 25 years to life. This is considered a sentencing enhancement. One District Attorney has set a decree stating that sentencing enhancements (including Three Strikes, gang enhancements, violation of bail, etc.,) shall not be filed in any cases. In February 2021, a California judge issued a preliminary injunction stating the District Attorney cannot order DDAs to ignore laws that protect the public from repeat offenders.

Criminal Justice Reform

Most people agree that criminal justice reform is needed, and diversion programs may be preferable in some cases. But who should decide? The Rule of Law is a principle under which all persons, institutions and entities are accountable to laws. Should one person in our criminal justice system have the power to override laws in order to achieve what they personally believe is the greater good?

With more campaign money being earmarked for District Attorney races across the country as an avenue for enacting change, these questions will continue to be raised for years to come.


Dr. Linda-Marie Sundstrom is a former Fulbright Scholar who taught Public Administration in Ukraine at a university under the Office of the Ukrainian President. She worked for two decades in local government, and has taught in Masters of Public Administration Programs for nearly two decades. She is currently the MPA Program Director for California Baptist University in Southern California. Email: [email protected]

Bio:Dr. Mark Kling has been in law enforcement for 34 years, 13 as police chief. He has taught both Public Administration and Criminal Justice courses for the past 20 years. He is currently the Criminal Justice Program Director for California Baptist University and came out of retirement to transition the Rialto Police Department to new innovative executive leadership. Email: [email protected] / [email protected]

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