Faithful Execution in the Fifty States

Abstract

Amid heightened political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly. Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to statutory law’s primacy. Under an emerging alternative approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise. The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act. More recently, a number of self-described “progressive prosecutors” have employed the same theory at the local level to nullify state laws forbidding theft, shoplifting, drug possession, prostitution, and other crimes on social-justice grounds.

Although these developments have provoked heated public debate, most discussion to date has presumed incorrectly that a generalized model of prosecutorial discretion applies nationwide. In fact, far from prescribing a common model of prosecutorial authority, the laws of the federal government and the fifty states vary widely with respect to the degree of enforcement discretion they presume and the degree of autonomy they afford to local prosecutors.

Some states forbid categorical nonenforcement altogether, while others afford near total autonomy to locally elected prosecutors. Most states fall somewhere in between. These varied laws—and not generalized abstractions about the rule of law, criminal justice policy, the proper prosecutorial function, or even the proper degree of local policy-making autonomy—should govern whether categorical nonenforcement is lawful in a particular jurisdiction. Refocusing debate on these varied state arrangements would not only give proper effect to governing positive laws, but also lower the stakes in each particular controversy. At the same time, it might help build greater capacity to enforce state constitutional law in other areas, helping to stabilize state government amid increasingly turbulent politics.

Keywords: prosecutorial discretion, faithful execution, law enforcement, nonenforcement, federalism