Administrative Discretion in Criminal and Immigration Enforcement

Abstract

Just about all outcomes of the enforcement of law, whether beneficial or concerning, are to some extent the result of administrative discretion. In her insightful new article, Misdemeanor Declination: A Theory of Internal Separation of Powers, Professor Alexandra Natapoff expertly illustrates that this is as true in criminal administration as anywhere else. In particular, Natapoff identifies and evaluates an important moment of discretion in the administration of criminal law: a prosecutor’s decision whether to decline or file formal criminal charges after police have made an arrest. This invited response both appreciates Natapoff's enthusiasm for enhancing prosecutorial discretion in criminal administration and maintains a bit of skepticism regarding its efficacy. More specifically, it draws on the immigration context in order to explore the possibilities and hazards of internal administrative checks for constraining excessive policing in both the criminal and immigration environments. First, this response suggests that directives ensuring uniformity are important to ensuring high-quality prosecutorial discretion. Second, it argues that agency culture is an important player in the internal separation of powers that reduces prosecutors’ overarching potential to constrain law enforcement. Third, it observes that the declination decision can serve a gatekeeping function that limits desirable access to adjudication, particularly for communities with fewer resources and reduced participation in democratic process. Finally, this response notes the possibilities of institutional design and public oversight for improving law enforcement accountability.

Keywords: criminal administration, criminal law, administrative law, immigration, law enforcement, declination, prosecutorial discretion, DACA, Dreamers, internal separation of powers, administrative separation of powers, racial minorities