california prosecutorial-discretion
Is it legal for a District Attorney to choose a policy to not prosecute certain crimes?
<p>San Francisco DA announced that he won't prosecute certain crimes like <a href="https://sfist.com/2019/11/16/boudin-will-not-prosecute-prostitution-public-camping-and-other-quality-of-life-crimes-once-sworn-in/" rel="noreferrer">public camping</a> or <a href="https://www.newsweek.com/san-francisco-district-attorney-public-urination-prostitution-not-prosecute-1471475" rel="noreferrer">public urination</a> <a href="https://www.foxnews.com/politics/san-franciscos-newly-elected-da-pledges-not-to-prosecute-public-urination-other-quality-of-life-crimes" rel="noreferrer">(second source)</a>. "<em>San Francisco's new district attorney has chosen social justice over the rule of law</em>" according to one <a href="https://www.washingtonexaminer.com/opinion/san-franciscos-new-district-attorney-has-chosen-social-justice-over-the-rule-of-law" rel="noreferrer">opinion</a>.</p>

<p><strong>Can he do that?</strong> Is it legal for a DA to effectively decriminalize a class of crimes, and therefore substitute the laws deliberated and adopted by legislature and affirmed by courts with his own vision of <em>social</em> justice? </p>

<p>I thought DAs, as well as judges, are sworn to uphold the law as it stands rather than replace it with their own.</p>

<p>Not only is it legal for the DA to decide which cases his office will prosecute, that is his primary function. The job of a DA is to decide if, when, and how cases will be prosecuted.</p>

<h2>No, but ...</h2>

<p>The DA has discretion to prosecute (or not) each case on its <strong>individual merits</strong> considering justice, efficiency and the public interest among other things. They are not supposed to adopt a “one size fits all” approach.</p>

<p>However, while this there is in theory no difference between a “never prosecute” category and an “always prosecute” category, the former has no legal impediment while the latter is subject to legal challenge. That’s because, since no one is hurt by the “never prosecute” rule, no one has standing to challenge it in court.</p>

<p><strong>This is a <em>de facto</em> choice, not a <em>de jure</em> choice.</strong> </p>

<p>When a DA has more cases than time or resources, s/he must prioritize cases based on some criteria. S/he is not <em>refusing</em> to prosecute certain cases, s/he is putting them at the bottom of his/her priority list. This is why a stolen bike in a big city, while a crime, almost never gets to court. </p>

<p>Boudin has made the calculation that until the homelessness problem in San Francisco is better addressed by the people in charge, it is a waste of his precious resources to imprison homeless people for existing within the city limits. So quality-of-life crimes go to the bottom of the list. If he magically gets a huge budget, a whole bunch of officers, a whole bunch of judges, and a whole bunch of free time starting tomorrow, he would eventually be forced to prosecute quality-of-life crimes. But until that happens, they are no longer prioritized.</p>

<p>In New York, a DA has a limited budget of resources and staff.  The courts have ruled that the DA may exercise discretion as to where resources are spent.</p>

<p>Also in New York, a DA must prosecute a cognizable crime.  In New York, this means that a sworn complaint may be used to force the prosecution of a crime, whether by the DA or a private attorney.  This is sometimes utilized when a group of people choose to see prosecuted the actions of an elected official or some person who might be perceived as having some form of social immunity.</p>

<p>Finally, in some jurisdictions the DA and police agencies may elect to not prosecute and/or charge crimes which that agency believes are not legal, for example ones which are deemed as being unconstitutional.  In New York, such announcement was made with respect to capacity of handguns.  The down side is that creates an arbitrary discretion, which can be abused, for example by law enforcement charging persons with a crime when they know it will not be prosecuted.  This creates a criminal history for an individual, along with it inconveniences.</p>
