Thou Shalt Not Prosecute Crime: The Role of an Elected District Attorney

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
January 11, 2022

Before election day, many citizens spend a significant amount of time researching and discussing who should get their vote. This includes candidates for president, Congress and governor, as well as various local positions. Of all the races on the ballot, how much attention is focused on the candidates for county district attorney? Could the winner of this race actually have the most direct effect on community safety?

For most people, the job of district attorney is a role they have seen on television or in movies. It is the person who decides if a case should be prosecuted or not. They are in charge of all the deputy prosecutors who will try cases if they go to court. The decision of whether to prosecute a crime may be determined by such things as:

• Is there is enough evidence to convict?
• Are there enough resources to prosecute successfully?
• Is there outside public or political pressure?

But what if this elected district attorney simply does not agree with existing laws or has some other personal agenda? By being in the position of legal gatekeeper, deciding which crimes will be prosecuted and which will not, can the legal system be single-handedly changed in such a way that legislative, administrative and judicial branches of government become irrelevant, and offenders will not face consequences for their crimes?

Separation of Powers vs. Unilateral Directives

The American representative republic is based on the separation of powers using a system of checks and balances. Laws are created by the legislative branch, carried out by the administrative/executive branch and violations prosecuted and adjudicated by the judicial branch. But within this system, is it possible for a single person to circumvent these checks and balances? Is it possible for a single person to effectively change laws by simply issuing a unilateral directive?

Thou Shalt Not Prosecute

Recently, district attorneys in various large cities have issued directives instructing their prosecutors of crimes that they shall not charge. Recent directives from elected district attorneys to their deputy district attorneys include prohibitions on prosecuting crimes such as:

• Assault on a police officer.
• Prostitution.
• Resisting arrest.
• Shoplifting.
• Criminal threats.
• Driving on a suspended license.
• Minors in possession of alcohol.

These decisions to prohibit prosecution are not on a case-by-case basis. They are not left up to the discretion of the prosecutor. Rather, the prosecutors are directed by the district attorney that they shall not prosecute any of these (and many other) crimes.

How do these unilateral directives, issued by individual district attorneys, impact the justice system? As an example, in the case of a crime of shoplifting:

• Shoplifting is a crime and is illegal (legislative branch);
• Law enforcement can arrest the suspect (administrative/executive branch);
• The prosecutor is suddenly prohibited from charging the suspect with a crime;
• The suspect is released (pre-trial) with no charges; and therefore,
• The case never goes to court and the judge never hears the case (judicial branch).

As a result, a new de facto law has been created unilaterally by a single person—the elected district attorney. The legislative branch has been bypassed. The administrative/executive branch has carried out their role in vain. And the judicial branch has been taken out of the process. The constitutional process of ensuring deliberative checks and balances has been circumvented by one person.

When laws are removed, how will society react? In counties where the district attorney instructs prosecutors that they shall not charge anyone with traffic infractions (such as speeding, running a red light, etc.), will citizens continue to go the speed limit, or stop at a stop sign if the consequences are removed?  What can be done about an elected district attorney who unilaterally prevents prosecution? The district attorney cannot be fired—he or she answers only to the people through the election process. The only way to remove the district attorney is during the four-year election cycle or through a lengthy and costly recall process.

Unintended Consequences

While each of these unilateral directives may have lofty and altruistic goals, the results on the street are less positive. Crime is increasing, the daily news is filled with stories of, “Smash-and-grab,” robberies and organized shoplifting. Crime has become brazen with criminals knowing there are no consequences for their actions. Did people vote for these changes to our system of law and order? Not directly, or at least not knowingly. The election of one single person has profoundly altered the reality of life in many cities across the country. And forgotten in all of it are the victims, those at the other end of these crimes who will never see justice and who will never be made whole.

The Role of We The People

It is up to we the people to find a way to close this loophole and to restore the system of constitutional checks and balances. Most would agree that our criminal justice system needs to evolve and reform. But it needs to be done inside the system of constitutional checks and balances.

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Authors:

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]

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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