Law-enforcement agents shouldn’t get to choose which laws they enforce.
Law-enforcement agents shouldn’t get to choose which laws they enforce.
L aw-enforcement agents shouldn’t get to choose which laws they enforce.
In August, Florida Governor Ron DeSantis was correct to suspend a Florida prosecutor who declared that he would not prosecute violations of Florida abortion law.
Because that prosecutor has gone to court to fight his suspension, I recently filed a friend-of-the-court brief arguing that the suspension is lawful and necessary. Fourteen other state attorneys general signed on to that brief. This is why:
Prosecutors have no power to veto laws. But some are seizing it anyway — and they are breaking our system of government.
They don’t publicly admit that they are exercising a veto, of course, but that’s precisely what they are doing. Some refuse to prosecute thefts under $1,000 in value; others refuse to enforce immigration laws, or gun laws, or abortion laws, or, a year ago, laws regarding masking.
If I were a legislator, I might have voted for some of these laws and opposed others. But I’m not a legislator — and neither are the prosecutors.
To be clear, law enforcement has discretion in enforcing individual cases, and for good reason. If an 80-year-old grandmother steals food from the local carryout, no good will come from arresting her, or jailing her for theft. And most of us would be glad if a police officer used her discretion to bring our twelve-year-old son home to be punished for a playground brawl, instead of booking him into juvie.
But if the local prosecutor announces he will not prosecute anyone for stealing food, it will become open season on grocery stores. If no one is ever charged with fighting, fisticuffs will become the common means of settling disputes.
Prosecutorial discretion is one thing. Ignoring an entire class of crimes is not discretion, but lawlessness. It is antithetical to the notion of self-government.
Each of these unenforced laws is enacted by elected local, state, or federal legislators, and signed into law by an executive (who usually does have a veto). This is called democracy.
When prosecutors refuse to enforce statutes, they put themselves above the legislative branch. It is as though those laws were never in effect. What is the purpose of an elected legislature if a single person can simply decree that, in that jurisdiction, the law does not apply?
The arrogant prosecutor who cancels lawmakers’ work cancels the representation of the people.
This isn’t a new idea for polarizing times: In the 19th century, South Carolina senator John C. Calhoun theorized that states had the authority to “nullify” federal acts with which they disagreed. That idea went out of fashion along with his views on slavery — until prosecutors, playing politics instead of practicing law, resurrected it.
Prosecutors engaged in a 21st-century version of nullification will claim to be refusing to enforce unjust laws, and I accept the sincerity of their belief, but based on whose sense of justice? In a pluralistic society, competing visions of justice and public policy are worked out through our elected legislators and expressed through the laws they pass. If we reject that process, we are rejecting the very idea of democracy.
When I was a local prosecutor, I had to take an oath to uphold the constitution and laws of Ohio and of the United States. I took a similar oath as attorney general. It’s the reason my job exists. And neither of those constitutions grant me the power to make laws — only to enforce them. As I tell the constituents who ask me about legislation, I don’t get a vote or a veto.
A prosecutor who believes a law is unjust is free to advocate for its change — and many prosecutors have done so on many issues. But if they cannot in good conscience do the job they swore to do on behalf of the people — to enforce the laws of the people’s elected representatives — then the only moral course of action for them is to resign, and to run for the legislature.
A world in which each prosecutor is free to ignore the law in favor of their own individual sense of what the law ought to be is a world where what gets you arrested depends on who’s in office.
That’s a government of individual prejudices, not a government of laws.