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Thou Shalt Not Prosecute Crime (Part II): Alternatives to District Attorney Prosecutions

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

By Mark Kling & Linda-Marie Sundstrom
February 10, 2022

In our January 2022 article, “Thou Shalt Not Prosecute Crime: The Role of an Elected District Attorney”, we explored how a growing number of district attorneys across the country are issuing unilateral directives mandating that their prosecutors shall not prosecute crimes in an effort to achieve their vision of fairness for the offenders. These directives override laws passed by the legislative branch, ignore arrests made by the executive/administrative branch and prevent the alleged offenders from being brought before a judge (judicial branch).

Since the district attorneys are elected, they cannot be terminated from employment for failing to uphold the rule of law. The only recourse for citizens is to vote them out of office after four years, or engage in a costly recall. Faced with issues of escalating crime, options for removing an elected district attorney may be, at best, years away. As stopgap measures, two “work-around” solutions are beginning to emerge that could result in prosecuting offenders to get them off the street, provide treatment/rehabilitation and deter further violence. Two possible work-around options include:

  • Cities may request to authorize their own city attorney’s office to prosecute misdemeanor crimes in their jurisdiction that have been unilaterally prohibited from prosecution by the district attorney
  • Local jurisdictions may request that some cases bypass the district attorney completely and be heard directly by Federal U.S. Attorney’s Office

Work-Around Option #1—City Attorney Prosecution

In the past year, district attorney’s offices have prevented the prosecution of tens of thousands of cases. Despite state law, the DAs have unilaterally prohibited prosecutions for crimes they personally believe are unfair to the offenders, such as:

  • Assaulting a police officer
  • Resisting arrest
  • Shoplifting
  • Criminal threats
  • Prostitution and many others.

These district attorneys believe the focus should be on rehabilitation rather than punishment. Currently, cities can arrest alleged offenders, fingerprint, book them and then the alleged offenders are immediately released back to the streets. No charges are ever filed by the DA— which means there are no consequences for criminal behavior. Additionally, the offender receives no treatment, rehabilitation or other diversion assistance to prevent future offenses.

Charges Filed with the City Attorney’s Office

Cities are beginning to study the option of authorizing their own city attorneys to prosecute misdemeanor crimes in their jurisdictions when the county DA fails to do so. This practice currently exists in cities such as the City of Los Angeles, where the city attorney prosecutes all misdemeanor criminal offenses and infractions within the city’s jurisdiction. However, this is rarely done and is not the practice in smaller municipalities who rely on the DA to prosecute crimes. Most state laws require that, before cities prosecute their own misdemeanor crimes, they must first:

  • Obtain approval from the district attorney;
  • Create a formal agreement; and
  • Take on the high costs of prosecutions in their jurisdiction.

Prosecution is costly to cities, but may be the only option to hold offenders accountable for their crimes and truly provide options for treatment and rehabilitation to reduce recidivism. However, the likelihood of obtaining approval from the DA is questionable.

Work-Around Option #2—Utilize the U.S. Attorney When Possible

In many states, a murder conviction holds a minimum sentence of 25-years to life. The gun and gang enhancements add a sentence of life without parole. However, if the district attorney personally believes that no one should be sentenced to more than 20 years, he/she may prohibit prosecutors from charging enhancements, as well as longer sentences. Gun and gang enhancements add time to offender’s sentences over-and-above the time to be served. For example, if a gang member shoots and murders a police officer, the maximum sentence from the DA would likely be 20 years. Additionally, the offender could then be released on parole after only serving a fraction of that time.

Charges Filed with the U.S. Attorney’s Office

However, if there are possible federal charges involved, such as a gang affiliation that has known ties to organized crime, local law enforcement can bypass the district attorney and request that the case be moved to the U.S. Attorney’s Office. If the case is tried at the federal level, the alleged offender(s) receive a minimum sentence of life in prison without the possibility of parole, or the death sentence if convicted—rather than only serving a fraction of a 20-year prison term under the prosecution of the district attorney. However, this can only occur if a federal violation exists.

The Path Forward is Uncertain

Some district attorneys believe in unilaterally prohibiting certain prosecutions, reducing penalties for crimes (including heinous crimes) and prohibiting enhancements that could increase the required time to be served in prison. However, some cities believe that these practices have resulted in the escalation of violent crime in their communities, and they are desperately trying to work around the elected district attorneys who will not prosecute and sentence offenders. Cities are searching for ways to create safer communities and provide justice for the victims of violent crimes. Solutions need to be explored to ensure that the rule of law is upheld and checks and balances of the three branches of government are restored.

Author: 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]

Author: 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 20 years in local government and has taught in Master 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]

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