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Litigation Journal

Summer 2023 | Legitimacy

Prosecutorial Discretion and Legislative Legitimacy

Eli Savit


  • Prosecutorial discretion is a basic and foundational feature of our legal system.
  • No prosecutor can (or should) charge every single case that comes across his or her desk.
  • The recent trend of prosecutors publicly announcing how they exercise that discretion is a step forward toward transparency and fairness.
Prosecutorial Discretion and Legislative Legitimacy
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Prosecutorial discretion is baked into our legal system. The U.S. Supreme Court has emphasized, time and again, that prosecutors’ overarching duty is to ensure that “justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). As part of that responsibility, prosecutors regularly exercise discretion as to when, whether, and under what circumstances to charge people with crimes. Indeed, the American Bar Association advises that prosecutors have a duty not to charge cases—even if supported by the evidence—if doing so would be inconsistent with “the interests of justice.” See Criminal Justice Standard 3-4.3 (Am. Bar Ass’n 2017).

In many circumstances, the decision not to charge is context-specific. Imagine the following: An 11-year-old child, accompanying his mother on a Saturday shopping trip, pilfers a T-shirt from the store while his mom’s not looking. On the car ride home, the child becomes overcome with guilt and tearfully confesses the theft to his mother. The mother turns the car around and marches her child back into the store. He returns the T-shirt, apologizes profusely, and tells the store manager it will never happen again. The T-shirt is restocked. The child is grounded by his parents. The store manager, consistent with store policy on shoplifting, files a police report—but emphasizes that she does not want the child charged.

When that case lands on a prosecutor’s desk, the prosecutor has a decision to make. Shoplifting (including by juveniles) is a major issue in that community, and the prosecutor has made clear that she takes retail theft very seriously. This case, though, seems different. Yes, this case could be charged and easily proven (the perp confessed)! But the kid is so young. He owned up on his own. His parents imposed discipline. The store didn’t lose anything—and doesn’t want to move forward. So the prosecutor decides not to charge. After all, it seems the kid has learned his lesson. Subjecting the child, his family, and the store to a drawn-out legal process doesn’t seem to be in the “interests of justice.”

Prosecutors make these types of decisions every day. To be sure, different prosecutors may have different views about what qualifies as being in the “interests of justice.” But that human discretion is part and parcel of our system. And it is why we elect people to these positions who will, presumably, reflect community values.

Categorical Decisions Not to Charge

Recently, though, there has been a shift in how prosecutorial discretion is exercised. Increasingly, reform-minded prosecutors are running—and winning—their elections on an explicit pledge not to prosecute whole categories of crime. When these elected prosecutors take office, they generally follow through. Multiple prosecutors, for example, now decline to charge marijuana offenses. Some decline to prosecute small-scale possession of any drug. And perhaps most prominently, after Roe v. Wade was overruled, scores of elected prosecutors pledged not to prosecute abortion.

These categorical decisions not to charge certain offenses have attracted significantly more controversy than prosecutors’ long-established discretion not to charge in a particular case. Critics contend that prosecutors’ categorical refusal to “prosecute entire classes of crimes” constitutes “[u]surpation of legislative power.” Charles Stimson & Zack Smith, “Progressive” Prosecutors Sabotage the Rule of Law, Raise Crime Rates, and Ignore Victims (Heritage Found. Oct. 29, 2020). These critics assert that prosecutors who opt not to charge whole categories of crimes are, effectively, undermining the democratic function by declining to enforce laws that were validly passed by the legislature. In short, critics label these decisions as illegitimate exercises of power.

As an elected prosecutor who has adopted some limited “declination” policies—presumptions against charging certain categories of crimes—I believe that these criticisms are misguided. Prosecutors, too, are democratically elected and are expected to reflect the needs and values of their communities. What is more, categorical non-prosecution policies are nothing new. Across the nation, there are hundreds of laws that are habitually ignored because they’re archaic, because they make no sense, because they are not in the interest of justice. If prosecutors started enforcing each and every law on the books, it would send shock waves through our legal system and our communities.

That said, making a non-prosecution policy public can indeed pose some thorny issues—for democratic legitimacy reasons and because of its capacity to influence behavior. Such policies can also have value: both for transparency and good government’s sake, and for public safety reasons. I believe, however, that any public non-prosecution policy should be issued only after thoughtful and careful consideration of several factors.

Critics of prosecutors’ categorical decisions not to charge certain offenses frequently levy some flavor of a democratic legitimacy argument. The argument goes something like this: A prosecutor’s job is to enforce laws, not to make them. Making laws (or removing them from the books) is the exclusive province of the democratically elected legislature. Thus, a prosecutor who declines to prosecute whole categories of charges is effectively undermining the will of the people—as expressed through laws enacted by the legislature.

In my view, however, there are at least two major issues with this critique.

First, categorical non-prosecution of certain laws is nothing new. There are scores of laws across the country that remain on the books but that no ethical prosecutor would ever enforce. Michigan, for example, maintains an archaic criminal statute prohibiting unmarried men and women from “cohabiting” together. That law has never been overruled, nor (as of this writing) has the legislature ever bothered to remove it from the books. But I am quite confident that no prosecutor would ever actually file a criminal charge for “cohabitation.”

There are many other examples. Every so often, a lighthearted article is published about weird, archaic, and silly laws that remain on the books. One such article, for example, highlights the illegality of talking on an elevator or wearing slippers after 10 p.m. in New York City. Carly Kaufman, Craziest/Weirdest Laws in NYC That You May Not Know, City Signal, Aug. 11, 2022. These articles are good for a laugh—rather than a cause for alarm—because everybody knows that no prosecutor would ever bother filing charges against a nighttime slipper-wearer. But if a prosecutor’s job really was to file charges for every category of crime, overly gregarious elevator-riders in New York and cohabitating couples in Michigan would be staring down the barrel of potential charges.

Our System Gives Localities Discretion

As ridiculous as these examples might be, there is a more serious point. Contrary to the views of some critics, a prosecutor’s job is not to mechanistically enforce every single criminal law that the legislature deems justified. Nor does anyone really expect prosecutors to do so. For one, as the previous examples demonstrate, legislators generally don’t prioritize amending or removing archaic laws from the books. In addition, statewide actors (like legislative bodies) are not frequently attuned to the specific needs of localities.

That understanding is reflected in the systems set up in virtually every state. If we wanted absolute uniform enforcement of the laws, we’d have prosecutors, sheriffs, and police chiefs serve at the direction of statewide officials. But we don’t do things that way. We give localities (through their locally elected officials) discretion as to how to enforce state law. And we expect prosecutors to exercise it.

Second, democratic legitimacy critiques of non-prosecution policies all but ignore the fact that local prosecutors are also democratically elected. If a prosecutor’s job was to mechanistically charge all cases in which there was sufficient evidence to convict, there would be little reason to elect prosecutors in the first place. But we don’t do things that way. Instead, we elect individual human beings as our prosecutors—and expect them to exercise their discretion in a way that reflects the community’s values.

Of course, those exercises in judgment can involve case-specific discretion. But it may also be the case that a given community has different expectations about whether certain behaviors should be charged at all.

By way of example, I am the elected prosecutor for Washtenaw County, Michigan. My jurisdiction is home to the University of Michigan. On fall Saturdays, some 100,000 people descend on our community to watch the Michigan football team—and tailgate. There are likely hundreds, if not thousands, of technical legal violations associated with those pre-game tailgates: loud, boisterous gatherings; possession of alcoholic beverages on a sidewalk; and maybe (just maybe!) some underage drinking by college students.

But that’s just a part of living here. Indeed, for many people, that college environment is one reason they choose to live here. Few people in my community really want to see hundreds of people prosecuted for minor offenses after every home football game. And though law enforcement keeps a watchful eye, they’re generally on the lookout for fights, drunken driving, or other activity that’s harmful to the community. As long as football fans remain relatively well-behaved, I’m fairly confident that no candidate for prosecutor here would run and win on a platform of “getting tough on tailgates.” (Unless, of course, that pledge was directed exclusively at visiting Ohio State fans.)

But a prosecutor in a different community might well take a tougher stance on similar behavior. Our community’s regular 7 a.m. tailgate gatherings would probably be considered a significant nuisance if they took place outside of, say, a quiet retirement community every Saturday morning. In such circumstances, it would be more appropriate for a prosecutor to take a tougher line.

The general point extends far beyond football tailgates. Take marijuana. Some communities might frown on marijuana consumption and demand that their elected prosecutor treat it seriously. Many others, though, may have a more forgiving attitude. Others still may have seen thousands of community members denied access to jobs, housing, and educational opportunities because of a marijuana-related criminal record. They might go even further, demanding that their elected prosecutor stop charging those crimes so that members of their community can thrive.

These are choices communities should get to make—and choices that voters should be allowed to register at the ballot box. Again, different communities are different, and like all elected officials, prosecutors should be permitted to exercise discretion consistent with community needs and values.

To be sure, people can disagree as to whether a particular exercise of charging discretion is appropriate. Most would likely agree that it is categorically unjust to prosecute a 25-year-old man for sharing his home with his fiancée. There may be considerably more disagreement as to whether it’s appropriate to charge that same man for possessing a small amount of cocaine. At bottom, though, these are policy debates about whether a prosecutor is appropriately exercising discretion—not whether categorical non-prosecution policies are appropriate in the first place. These policy decisions should be entrusted to voters. If a prosecutor oversteps in his or her exercise of discretion, that prosecutor can be held accountable at the ballot box when running for reelection.

Publicly Announcing Discretion Is New

As demonstrated, then, non-prosecution policies (at least informal ones) really are nothing new. What is new is elected prosecutors publicly announcing those policies and informing people, effectively, that there will be no criminal consequences if they break a written law. That, I think, gets to the real issue that many people have with non-prosecution policies. It is not so much that those policies exist; rather, it is that they are public.

In my view, there is more heft to this specific critique than there is to the ill-considered (and incorrect) assertion that prosecutors must mechanistically enforce every law. When a prosecutor says that he or she will not enforce a law, it arguably sends the message that a valid state-level law is no longer in effect in that prosecutor’s jurisdiction. Thus—particularly in jurisdictions where an elected prosecutor is the only actor who can enforce a state law—a public non-prosecution policy can be seen as an effective “veto” of a law that was passed by the legislature.

There are potential real-world consequences as well. One reason we have criminal laws in the first place is to deter people from engaging in certain types of behavior. A wink-nod policy of looking the other way when certain behaviors occur still preserves some deterrent effect. But a prosecutor stating publicly that there will be no consequences for that behavior runs the risk that undesirable behavior will be encouraged.

Why Prosecutors Go Public

There are, however, countervailing considerations as well. In my view, there are at least four good reasons a prosecutor may decide to “go public” about his or her decision not to prosecute certain categories of cases.

First, a prosecutor may wish to be transparent about his or her approach to justice. Again, local prosecutors are, by and large, elected officials and ultimately answer to voters. A prosecutor may believe that his or her constituents have a right to know how he or she is spending taxpayer resources and the types of crime the prosecutor is prioritizing. That’s important for democratic legitimacy purposes. How, after all, are voters supposed to decide whether to reelect a prosecutor if all of that prosecutor’s policies are unwritten, unspoken, and inaccessible to the public?

Second, certain non-prosecution policies can help build trust in the broader community and facilitate the reporting and prosecution of more serious crime. Imagine, for example, that a person witnesses a shooting while sitting on a porch smoking marijuana with friends. That person might fear reporting the crime (or serving as a witness), given that telling the full story about how he came to witness the crime would require admitting to a crime. Conversely, if that witness knows, categorically, that the prosecutor will not charge marijuana-based offenses, it is more likely that the shooting will be reported—and successfully prosecuted.

Third, keeping one’s non-prosecution policies a secret could have the perverse effect of sending the wrong message about other, more serious criminal behavior. Imagine, for example, that a prosecutor has an unwritten policy not to charge people with simple marijuana possession. One night, a 22-year-old is pulled over in his car. Police see marijuana on the front seat. The police write up a charge request and send it to the prosecutor, who declines to charge it in line with the unwritten policy.

In that situation, the 22-year-old is not going to know why charges were declined. He will know only that the prosecutor opted not to prosecute. He might take the message that his county prosecutor is not particularly interested in prosecution. He might tell his friends, “Hey, I got off! You don’t have anything to worry about if those cops pull you over.” And at some point in the future, he, his friends, or someone else who heard that story might opt to commit a more serious crime that the prosecutor is interested in prosecuting. For example, rather than transporting marijuana, they might unlawfully carry a concealed weapon. Or they might decide to drive under the influence of marijuana.

But if the prosecutor has been clear and public about her policies on marijuana, that story could end differently. As an initial matter, law enforcement—knowing that the prosecutor won’t pursue marijuana charges—might not even bother to send charges over. What’s the point if they know there won’t be any charges? If law enforcement nevertheless seeks charges and they are denied by the prosecutor, it will be clearer that charges were declined pursuant to a policy on marijuana, not a broader disinterest in prosecuting crime.

Fourth, and finally, a prosecutor might publicly announce a non-prosecution policy to encourage certain behaviors. It may seem counterintuitive that a prosecutor would wish to encourage behavior that is technically illegal. But consider, for example, our non-prosecution policy in Washtenaw County for unauthorized use or possession of buprenorphine.

Buprenorphine is a medicine—commonly known by the brand name Suboxone—that people use to manage opioid addiction. Patients who use buprenorphine do not generally become intoxicated. They demonstrate significantly improved cognitive function. They are generally safe to drive. And it is almost impossible to overdose on buprenorphine. For many people, buprenorphine has become a tremendously effective medicine that has allowed them to turn away from dangerous drugs like heroin and fentanyl.

But unauthorized buprenorphine use or possession (without a prescription) can be a felony. Discouraging people in recovery from using buprenorphine can thus lead them back to dangerous drugs like heroin and fentanyl, with potentially fatal consequences. Given that backdrop—and given that people generally do not use buprenorphine recreationally—I made the decision not to charge for the unauthorized use, possession, or small-scale distribution of buprenorphine. If somebody in recovery needs a fix, I want them using buprenorphine rather than fentanyl. Similarly, if somebody has a friend in need of buprenorphine, I want them to share it with their friend without fear of criminal consequences.

So, yes, though it’s technically illegal, I want to encourage the use of buprenorphine rather than heroin or fentanyl. We wouldn’t be able to effectively do so if our policy remained a secret. Put bluntly, publicizing that policy was about saving lives.

There are, accordingly, several factors that could appropriately weigh in favor of publicly announcing a non-prosecution policy. It must be conceded, however, that none of these considerations entirely addresses the democratic legitimacy concerns. It is true that by announcing a decision not to charge under a particular law, prosecutors are (at the very least) taking some teeth out of a validly enacted law.

Out of deference to the law and the legislature, then, a non-prosecution policy is not something any prosecutor should take lightly. But neither should an abstract commitment to the legislative branch stop prosecutors from announcing policies that are in their community’s best interests.

How to balance these competing considerations? Every prosecutor must, of course, make their own decisions as to whether, and when, to announce a non-prosecution policy. In my view, however, there are several factors an elected prosecutor should weigh when considering whether—and how—to announce a non-prosecution policy.

Factors Prosecutors Should Consider

The first factor is campaign promises. Think of it this way: The legitimacy of a prosecutor’s decision not to charge certain categories of crimes is based, in large part, on the fact that prosecutors are democratically elected. Toward that end, non-prosecution policies bear more hallmarks of legitimacy if an elected prosecutor publicly announced that position during the campaign. For example, if a prosecutor runs (and wins) on a platform of not prosecuting people for possessing small amounts of controlled substances, a policy that implements that pledge can be said to reflect the community’s democratically expressed positions.

Of course, like any elected official, prosecutors cannot—and should not—feel strictly bound by what was discussed during a campaign. There may be circumstances in which issues arise that were not contemplated during the campaign. Prior to Roe v. Wade being overturned, for example, abortion was not front-and-center in many prosecutorial campaigns, but once the Supreme Court ruled, prosecutors in states with criminal abortion laws had to take a position one way or the other. Punting on the issue wasn’t an option.

In addition, the facts on the ground may shift. A prosecutor in a community besieged by overdose deaths might consider a non-prosecution policy on buprenorphine as a needed public health intervention—even if that wasn’t something contemplated during the campaign. Prosecutors, therefore, shouldn’t be entirely boxed in by the issues that were most prominent during a campaign.

But, where possible, candidates who are considering a non-prosecution policy should be as transparent as possible about their intentions. And an elected prosecutor who is considering such a policy should give great weight to whether the policy was something that could have been contemplated by the electorate.

Another factor that can and should weigh heavily in a prosecutor’s decision to issue a non-prosecution policy is whether the relevant law is (or can be) equitably enforced. One of the criticisms that is frequently levied against categorical non-prosecution policies is that it effectively nullifies state law in certain jurisdictions—leading to unequal enforcement on a statewide level.

But unequal enforcement is already a part of our legal landscape. Put bluntly, for certain laws, the threat of criminal sanctions is realistic only for some people. Marijuana consumption is an excellent example. We know that marijuana consumption rates are roughly equal across racial demographics. But nationwide, Black people are almost four times as likely to be arrested for marijuana than white people—and the disparity is even higher in certain states and communities.

Given those disparities, a prosecutor may wish to consider a categorical non-prosecution policy for marijuana possession in the interests of equitable enforcement in the community. It is a hallmark of our criminal legal system that individuals should be punished because of what they did, not because of who they are. But we effectively legalized marijuana for white people (and those of higher socioeconomic status) a long time ago. If the war on drugs were waged on everybody who consumed marijuana, every college campus in America would be ground zero for enforcement action. Far from creating inequitable enforcement of the law, then, a non-prosecution policy can help alleviate inequity.

A prosecutor should also carefully consider the possibility that a non-prosecution policy will undermine deterrence. In thinking about that issue, prosecutors should consider whether the criminal law has been effective at deterring certain behaviors in the past. In some cases (marijuana consumption or underage drinking, for example), the abstract threat of prosecution has not exactly been an effective deterrent. But a categorial non-prosecution policy in regard to other laws—even where the equities often might tilt toward non-prosecution—could incentivize undesirable behavior.

A fictionalized example may be helpful. In Les Miserables, Jean Valjean was famously sentenced to 19 years after stealing a loaf of bread to feed his starving family. A prosecutor may well think that thefts of this type are not worth prosecuting. But should that be memorialized in a public policy? A non-prosecution policy for “bread theft” will send the message to the community that bread is effectively free—hurting bakers and presumably driving up the price of bread for everyone else. A prosecutor may want to think carefully before publicly announcing a policy of this type. Perhaps it’s better to simply deal compassionately with people on a case-by-case basis.

There is, of course, significant debate about the degree to which criminal law actually deters behavior. But prosecutors also should not pretend as though their words and pronouncements cannot influence behavior. If police and prosecutors announced, for example, that they would no longer enforce speed limits on the highway, one would expect significantly more people to speed. Particularly when deciding whether to go public with a policy, prosecutors should carefully consider the effects their words might have.

That leads to a related point: Categorical, public non-prosecution policies are, I think, far more appropriate for crimes without readily identifiable victims (possession of contraband, for example). Even if a prosecutor believes that a law involving victims has only minor deterrent value, even one additional victim is probably too many. Again, this is not to say that prosecutors can’t exercise discretion in victim crimes on a case-by-case basis. But to avoid incentivizing behavior that could harm innocent victims, prosecutors should approach non-prosecution policies for cases involving victims with extreme caution.

In my office, we have several non-prosecution policies—but none of them involves victim crimes. This is not to say that we will never decline to charge a crime with a victim in the interests of justice (the example of the 11-year-old shoplifter is a case in point). But I am loath to even potentially incentivize any behavior that could harm a victim.

Beyond the deterrence point, I believe cases involving victims should generally be dealt with on a case-by-case basis. Victims of a crime have rights, and those are rights we are bound to protect. The needs of victims, too, might vary dramatically, and it is better to maintain maximum discretion to address victims’ unique needs. For that reason, categorical non-prosecution policies for victim crimes should be disfavored.

A final consideration: If a prosecutor is thinking about a public non-prosecution policy, it is important to be as precise as possible about what it covers (and doesn’t). Prosecutors should anticipate that their pronouncements will receive attention in the media and will be discussed in the community, and should therefore be prepared to detail, at the outset, exactly what the policy means.

By way of example, we have a general policy against charging unauthorized use, possession, or small-scale distribution of marijuana, but our policy specifically provides that we will still file charges for the unauthorized large-scale distribution of marijuana, as well as charges against adults who sell marijuana to children. Marijuana is now generally legal in Michigan, and I do not think it is fair or just to charge people for having “too much” marijuana or for selling a couple of dime bags to friends.

But large-scale distribution operations that flout health and safety standards should not be tolerated. Nor is it tolerable for adults to sell intoxicating substances to children. Thus, rather than simply announcing that we wouldn’t be charging cannabis crimes generally, we published our full policy—which includes these exceptions—for all to see, to avoid any possible confusion.

Relatedly, non-prosecution policies should ideally leave open some flexibility for exceptional cases. Every case that comes into the criminal legal system involves a unique story. Few categorical policies can anticipate every possible case that might make its way across a prosecutor’s desk. Prosecutors have tremendous authority and tremendous discretion. But we are also human, and none of us can anticipate, in advance, every possible scenario that might confront us in the future.

For this reason, our office’s policies are framed as presumptive only. Exceptions can always be granted, for public safety reasons, with the approval of me or our chief assistant prosecutor. Far from being a “veto” on a democratically enacted law, then, our policies are simply a public and transparent indication of how we will exercise our well-established prosecutorial discretion.

Prosecutorial discretion is a basic and foundational feature of our legal system. No prosecutor can (or should) charge every single case that comes across his or her desk. The recent trend of prosecutors publicly announcing how they exercise that discretion is, in many ways, a welcome step forward toward transparency and fairness.

To be sure, the decision to announce a non-prosecution policy is never one that should be taken lightly. Prosecutors should carefully consider how their words will be interpreted, as well as the mandate that they have from voters. Exercised thoughtfully, however, public pronouncements can have significant upsides. They can help voters hold their prosecutors accountable. They help to ensure that prosecutors are reflecting their community’s values. And, in the final analysis, they can help ensure a fairer, more equitable, and safer community.