How ‘Progressive’ Prosecutors Are Betraying the Constitution By Andrew C. McCarthy
https://www.nationalreview.com/2022/01/how-progressive-prosecutors-are-betraying-the-constitution/
They’re perverting the principle of prosecutorial discretion to mutilate the laws.
T he job of a judge is to apply the law as it has been written by the legislature. For the last half-century, that has been the most effective argument mounted by constitutional conservatives against activist courts. The judge is not at liberty to legislate. That is, the judge may not revise the laws, under the guise of clearing up nonexistent ambiguities, or filling in nonexistent gaps, or — if we may be blunt about what activist judges actually do — distorting the law to fit the jurist’s subjective sense of fairness and justice.
In a democracy, what is fair and just is left to the judgment of the legislature — the representatives answerable to the people whose lives are directly affected by the laws the legislature enacts. Legislatures are limited only by the Constitution, not by judicial sensibilities.
These principles have been so energetically touted that lawyers can recite them from memory. More importantly, they resonate with the public — to the point that, at confirmation hearings, even progressive judicial candidates pretend to be bound by the law as written. Indeed, it is the historical achievement of the late, great Justice Antonin Scalia that seventies-style judicial freewheeling is no longer de rigueur. Judges must at least go through the motions of wrestling with the text of statutes and constitutional clauses. If they fail to acknowledge the binding law (even if only as a pretext for trying to circumvent it), higher courts are virtually certain to reverse their rulings.
So here is the question: Why do we not demand that prosecutors meet this same standard?
In big cities all across the country, criminals are running amok due to the derelictions of the hard Left’s “Progressive Prosecutor Project” (a label I am proud to have had a hand in). But what are these derelictions? To hear critics tell it, they won’t enforce the laws. That’s true, but doesn’t quite nail it.
It’s not like these folks don’t show up for work every day — these anti-prosecution district attorneys, such as Chesa Boudin in San Francisco, Kim Foxx in Chicago, Larry Krasner in Philadelphia, George Gascón in Los Angeles, and, newly added to the cabal, Alvin Bragg in Manhattan. To the contrary, progressive prosecutors work very hard. They have to. Like activist judges, they seek to legitimize their machinations by masquerading them as law.
When we look at what the statutes actually say, however, we find that progressive prosecutors are not applying the laws enacted by the people’s representatives. They are unilaterally decreeing new laws — the same mischief over which activist judges endure ridicule and reversal.
No, no, progressives counter, there’s a big difference: Unlike judges, our prosecutors have been elected. Some, in fact, such as Krasner, have been reelected. They are politically accountable. If the people who live under a prosecutor’s nonenforcement policies do not approve of the inevitable surges in crime, they can oust that prosecutor in the next election.
There is some force to that argument. Maybe we should just shrug our shoulders and say, “If Philadelphians want Larry Krasner, then they deserve Larry Krasner . . . good and hard.” But ballot box aside, many people in Philadelphia and other Democrat-dominated crime sanctuaries are voting with their feet. They are moving to communities that, because the rule of law still holds sway, are strong and stable. Shouldn’t that rush to the exits be part of the “elections have consequences” ledger?
In any event, the main flaw in the “they’re elected” defense of progressive prosecutors is constitutional. Executive officials are not elected to make the laws but to enforce them. In this regard, separation of powers is not merely a legal technicality. The Framers understood that the quickest path to a democratic republic’s destruction would be the accumulation, in a single set of hands, of the powers to legislate and to enforce the laws. To have ordered liberty, the two must be kept apart. The alternative is despotism, in which the rulers either repress their opposition or, as we are seeing with progressive prosecutors, foster a modified anarchy where the laws go unenforced except to the extent they can be weaponized against political foes.
It is no answer to unconstitutional action that the offending official has been elected. Among the Constitution’s main purposes is to stave off tyranny of the majority. If a prosecutor, mayor, or governor acts lawlessly, it is not a defense that if the people don’t like it they can oust him or her next time around.
Progressives and the prosecutors they’ve heavily invested in are well aware of this. That’s why they usually resist the urge to claim that being elected is a license to mutilate the laws. Rather, in their exquisite chutzpah, they insist that the mutilation is really just the upholding of a foundational constitutional principle: prosecutorial discretion.
This is exactly what Alvin Bragg has just done.
The new Manhattan DA got caught brazenly rewriting the laws. Following in the footsteps of other progressive prosecutors, he kicked off his tenure by issuing, in the sheep’s clothing of a guidance memorandum, a radical manifesto — the so-called Day One Memo, which the orotund Bragg branded “Achieving Fairness and Safety.” The screed is a mix of lefty tropes and dense penal-code citations — statutory numbers and jargon meant to be inscrutable to the nonlawyer. If we may translate it, though (a service that former federal and state prosecutor Tom Hogan has performed at City Journal), the memo directs the DA’s subordinates to refrain from prosecuting serious crimes as serious crimes: Armed robberies, other felony gun offenses, and major narcotics trafficking — if they are charged at all — become misdemeanors. Detention is essentially verboten at the pretrial stage and deeply discouraged in the post-conviction phase (assuming that some convictions happen).
Among the memo’s more notable sleights of hand (there is an embarrassment of riches on that score), assistant DAs are instructed to “focus on accountability, not sentence length.” Get used to that word, accountability. It will soon rival such progressive glossary favorites as sustainability, choice, change, equity, and that perennial favorite, justice — the skewed leitmotiv of Bragg’s opus.
Understand that what Bragg means by accountability is the usurpation of legislative power.
See, when prosecutors focus on “sentence length,” it means they are dealing with the laws (and thus the penalties) enacted by the legislature. To the contrary, by “accountability,” Bragg means: “We prosecutors will evaluate the conduct and decide what treatment is fitting.” In an individual case, that might mean “diversion” (non-prosecution), or “restorative justice” (where targets of crime are encouraged to meet with their predators, talk it out, and come to the realization that they are really joint victims of our corrupt society’s indelibly racist power structures), or a plea to a petty, non-incarceration charge that misrepresents the real criminal conduct. In the end, the law is what the prosecutor, not the legislature, prescribes.
When the Day One Memo became public, the new DA was stunned by the outraged reactions of New Yorkers. To be fair to him, the memo is consistent with the non-prosecution philosophy he campaigned on. Alas, it is one thing to be a smooth social-justice warrior on the hustings, elected in a one-party city by winning a third of the vote in a low-turnout primary (in a borough of 1.6 million people, Bragg got 86,000 votes, nosing out the second-place Democrat by just 9,000). It is quite another thing to be responsible for the safety of the nation’s leading urban center (New York County’s population is bigger than Philadelphia’s) in a time of surging violent crime. (The 485 murders recorded in New York City in 2021 marked a 4 percent increase over 2020, which had seen a staggering 47 percent increase from 2019, to 468 murders. The trend is alarming so soon after 2017’s record low of 292, but the Big Apple is still a ways away from the 1970–1990 bad old days, when murders routinely topped 2,000.)
Reeling from rebukes, including from incoming NYPD commissioner Keechant Sewell, Bragg did what pols do: He fibbed, initially claiming that his memo was being misconstrued by the benighted masses who just didn’t understand all that legal lingo. That smug story line was exploded by the meticulous Nicole Gelinas in a New York Post column. Wading through the statutory citations, she demonstrated that Bragg’s memo clearly instructs prosecutors not to charge armed robberies as felonies. Unable to refute his critics, Bragg walked back the memo.
Or did he?
Not really. While he took responsibility for poor phrasing (the last refuge of scoundrels who won’t cop to writing substantively dumb things), Bragg maintained that his memo is simply an exercise in “prosecutorial discretion,” which he described as “a bedrock principle embedded in our Constitution.” That is a preposterous perversion of the principle, but one that became fashionable in the Obama era and remains vital to progressives, who see executive power wielded by sprawling agencies — such as big-city prosecutors’ offices — as the fastest route to imposing their unpopular pieties.
The actual principle of prosecutorial discretion (as opposed to the sinister imposter to which Bragg adheres) is a mere resource-allocation doctrine rooted in separation of powers. The number of crimes committed exceeds the public resources (police, prosecutors, defense lawyers, courts, prisons, parole officers, etc.) available to prosecute them. Therefore, finite government resources must be targeted in a way that gives the public the best bang for its buck, prioritizing (a) intolerance of serious crime, and (b) enough deterrence to discourage less serious crime, lest it evolve into the serious variety. Because police powers are executive in nature, separation of powers requires that prosecutors, not legislators or courts, decide which crime cases to prosecute.
Notice what I just said, which crime cases to prosecute. Crimes are defined by legislatures. Discretionary authority does not give prosecutors the power to redefine crime and punishment. The same separation-of-powers principles that endow only prosecutors with charging discretion also vest legislatures with the sole power to define crime and punishment.
Prosecutors, like judges, are bound by the laws that the legislature has written. Yes, only prosecutors may decide whether to proceed with a case; but if they do proceed, they are duty bound to enforce the laws as the legislature has written them. If conduct amounts to armed robbery as the legislature has defined it, prosecutors are supposed to charge armed robbery, with the understanding that the sentence must be within the range that the legislature has prescribed — not whatever the prosecutor thinks “accountability” calls for.
What’s more, even the prosecutor’s discretion to refrain from bringing cases is not limitless. Prosecutors take an oath to execute the laws faithfully. That, too, is a bedrock constitutional principle. The principle requires enforcing laws as the legislature has written them, except when the prosecutor believes in good faith that an applicable law is unconstitutional — a nigh-nonexistent scenario in the matter of penal laws, most of which have been on the books and upheld by the courts for centuries.
“Prosecutorial discretion” was never meant to be the talisman that progressives have made of it.
For good-faith, competent government lawyers, there is nothing exceptional about it: Each case is weighed individually, and, assuming there is sufficient evidence to convict, a decision whether to proceed is made based on (a) the comparative severity of the offense and (b) the criminal history of the offender. In simple, commonsense terms, this means a first-offender may get a pass for a low-level crime, but not for a serious crime, while crooks with long records should be prosecuted even for low-level crimes because they will otherwise continue preying on the community.
That, however, is not what Bragg and his progressive-prosecutor cohort are doing. They invoke “prosecutorial discretion” to rationalize refusing to prosecute entire categories of crime — not to weigh offense/offender factors on a case-by-case basis but, in effect, to repeal criminal statutes.
At bottom, progressive prosecutors look at penal statutes as suggestions, not binding law. They resist, for example, enforcing statutory gang-crime enhancements that lawmakers have enacted to address a scourge that ravages urban communities. They mulishly refuse to file such charges because they believe the legislature’s constitutional authority is trumped by the prosecutor’s perception of what social justice demands — based on the loopy “disparate impact” theory, which holds that laws must be racist, and thus illegitimate, if one racial group violates them at a higher rate than other racial groups.
Moreover, progressive prosecutors use their discretionary authority to plea-bargain as a smokescreen to rewrite penal statutes. When I was a Justice Department prosecutor, our guidelines provided that, in order to enforce the laws as Congress enacted them, our duty was to charge the most serious readily provable offense, under the congressional statute that most closely fit the conduct in question. Ergo, if a defendant committed an armed bank robbery, the prosecutor was to charge armed bank robbery; “prosecutorial discretion” did not permit a prosecutor instead to charge, say, misdemeanor theft of $1,000, just because the prosecutor believed the 20-year sentence Congress had prescribed for armed bank robbery was too severe under the circumstances. You could only decline to charge armed bank robbery if you honestly assessed that the proof was insufficient to establish that offense beyond a reasonable doubt. If the evidence was strong enough, your job was to enforce Congress’s law; and on conviction, the judge’s job was to impose Congress’s sentence. Case closed.
In stark contrast, progressive prosecutors exploit what they disingenuously call “prosecutorial discretion” to change the controlling law. They do not plea-bargain; they fact-bargain, reimagining the criminal’s conduct until it fits their standards for low-level disposition, no-incarceration treatment, or — often — no prosecution at all.
When prosecutors do this, they are not, as Alvin Bragg feigns, upholding the Constitution. They are betraying the Constitution. When they engage in a pattern of doing it — or, worse, when progressive prosecutors celebrate themselves for doing it — their dereliction of duty is misconduct warranting removal from office.
It is true enough that authentic prosecutorial discretion — allocating limited law-enforcement resources to achieve maximum rule-of-law effect — is an executive power. Legislatures may not tell prosecutors whom to charge, or with what. But invoking “prosecutorial discretion” as cover for what is a scheme to gut and distort applicable laws is an executive usurpation of legislative power. It is unconstitutional. It needs to be de-normalized and outlawed. And then, if our cities are to be safe again, the restored norm needs to be vigorously enforced.
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