Mimesis Law
6 March 2021

Prosecutorial Discretion Cannot Save Poorly Drafted Statutes

September 20, 2016 (Fault Lines) – Those who paid attention during social studies, or can remember School House Rocks, might recall that we have a system of separation of powers. This means the legislature makes the laws, the executive enforces the laws, and, in the event of a dispute, the judiciary interprets the law. While not entirely accurate, this description provides a useful mental framework.

In theory, since the decline of royal prerogatives, the ascent of Parliament and then the Congress of the United States, the legislature is the primary policy-making body. The executive branch is delegated some administrative policy-making authority, but, at least in theory, that authority is circumscribed by statute and guided by its language. While there is debate, at the federal level, whether this delegation has gone too far, by and large the primary policy-making is done by the legislators.

Putting aside administrative rule making, executive branch agents still have a lot of informal power in the use of discretion. The executive officer gets to decide who, what, when, where, and how the laws are applied. This informal power is broadly referred to as discretion. Thus, even if the legislature passes a universally applicable law, because of the executive officer’s discretion the law can be unevenly enforced.

When it comes to prosecutors, we typically think about prosecutorial discretion as it relates to charging decisions, the seriousness and number of charges sought, plea bargaining, and sentencing recommendations. These are all decisions that occur in every case and depend on a wide range of variables that are difficult or impossible to forecast in advance. This is because, in part, the variations of human behavior are practically limitless. No grid can hope to capture the entire universe of possible criminal behavior.

In contrast to this sort of individualized, case-by-case decision-making, is decision making by class of persons. Such as example is Governor McAuliffe’s decision to pardon 200,000 felons to restore their right to vote. Unlike a typical pardon, where the governor makes an individualized decision, McAuliffe used a broadly inclusive criterion to make a decision. This had the effect of overriding the state’s laws about felons voting.

Similarly, the Department of Justice decided not to enforce certain immigration laws, effectively granting immunity to a number of people who entered the U.S. without inspections. Although in this particular case, the DOJ argued that Congress had both refused to fund full enforcement and, in any event, delegated decision-making authority to the President, the basic fact is still the executive branch was making categorically rather than individualized decisions.

But immigration isn’t the only case where a legislature appears to abdicate its law making responsibility. Fault Lines contributor Matt Brown wrote about an Arizona law that made diaper changing a crime. When the law was challenged in the Arizona Supreme Court, the Court saved this seemingly overbroad law by claiming that prosecutorial discretion would save the otherwise overbroad and vague statute.

At the threshold, this is curious because this basically a non sequitur. The issue before the court was whether the legislature had the authority to pass the law, not whether there are lawful ways that the prosecutor could apply the law and by the transitive properties of legal magic, save the statute. But this is in accord with the hostility courts usually have to facial challenges of statutes.

This kind of legislative delegation of defining crimes is most common in white collar crimes, as opposed to street-type crime. Street-crime lends itself to relatively straight forward law making, such as did the person take something with force; the person have sex without consent; did the person unjustifiable kill someone? Of course we still have trials because the facts surrounding “consent” or “unjustifiably” might not be clear. But as a mid-level of mental abstraction we all basically agree that these are crimes.

On the other hand, white collar crimes tend to involve complex schemes, diffused agency, collaboration, and the use of otherwise legal instruments and procedures. Plus, in commerce, people lose money on bad deals, sellers engage in legal puffery, and sharp practices abound. So, it’s not always easy to distinguish between the criminal wrongdoers and people who are deemed merely reckless with other people’s money.

To that end, the legislatures may want to delegate more discretion to executive officials, such as prosecutors, to distinguish on a case-by-case basis whether the conduct is criminal. Of course, that can lead to executive over-reach. Governor McDonnell’s prosecution for honest-services fraud is an example. And it can result in officials hiding behind the law to avoid prosecuting the powerful. Street criminals caught up in the scope of white collar crimes usually do not fare as well.

Without having the scope of a statute defined, it lies entirely with the individual prosecutor to decide the boundary. The problem with this is that the application of state and federal crime can be uneven depending on where the crime was committed and who the prosecutor is on the case. Generally, people are uneasy with this unevenness, at least when they think about it.

Fault Lines Editor Scott Greenfield discussed this trend of broad law making that legislatures, particularly Congress, has recently been doing. Scott primarily addresses sloppy lawmaking, where getting the bad guy is more important than drafting:

The problem arises for many reasons. Writing clear constitutional laws is hard. It’s often difficult to find the right words to express with precision the harm to be ameliorated without encompassing conduct that the law wasn’t meant to criminalize. Some want to stop a harm so badly that they don’t care how many innocents could also be swept into the net or what rights get trampled in the process.

This certainly seems to be the case of the Arizona law. The passions behind sex crimes involving juveniles can lead to emotionally infused law-making. And when later read dispassionately, one can question the collective thinking of the legislature. But unless we are going to endorse prosecuting thought and speech crimes, it’s not extraordinarily difficult to write a statute that criminalizes sexual activity, without criminalizing diaper changing.

In fact, the opposite tends to happen over time. Every time there is a crime that gains a lot of publicity, the legislature responds with a law, named after the victim, to ensure never again. These cases make clear that legislatures know how to write laws tailored to specific conduct. Occasionally, relatively narrow laws result in a complete avoidance of prosecution for the suspect, but more often it means that the suspect will face a lesser degree or less prison time upon a conviction. So, it’s not like many putative defendants receive a windfall by a less broadly drafted law.

From that perspective, the criticism of Scott and Matt land squarely. And so do the suggestions of Shon Hopwood. Yes, legislatures are putting judges in the position to be dad taking the keys away from his reckless teenager. But that’s the job they have. If you’re a pig farmer, then you’ve got to learn to at least accept the slop and the filth.

And prosecutors should not be seen as a backstop to these sorts of overbroad and vague statutes. For one, it conflates the job of the legislature with the prosecutor. Second, prosecutorial discretion ought to be exercised case-by-case and rarely categorically. We expect executive officials to enforce the law, not decide by non-enforcement which laws are truly valid. It invites prosecutors to act as policy makers influenced by personal feelings. Typically, we want legislatures representing our views on issues such as marijuana legalization and same-sex marriage—not attorneys for the state.

But what about the laws, like white collar crime, where the legislature intends to vest prosecutors with the power to define the outer limits of crimes? In such cases, neither the rule of lenity nor vagueness doctrines are likely to be of any help. Although, the Supreme Court has cast an increasingly wary eye on these crimes. These crimes are intended to be broad to ensure that specific instances of conduct that has yet to be imagined can be prosecuted when it hurts people.

Certainly there is some cost to allowing prosecutors to have this much discretion, e.g. the Ted Stevens, Conrad Black, and Robert McConnell. But on the other hand, these defendants not only are typically powerful and wealthy, but they have the power to destabilize global financial markets, e.g. Enron, WorldCom, Global Crossing, and Arthur Anderson. There is some reason to think that lesser wrongdoers are being prosecuted thanks to judicial narrowing of statutes. In the case of the housing financial crisis, almost no person was ever held criminally accountable. Perhaps if honest services fraud was still robust, we would have had prosecutions.

Plus, over time, common law develops in areas like RICO, mail and wire fraud, and honest services fraud that judicially define the outer limits. So, it’s not like there are no checks whatsoever on prosecutors. Yet, without a coherent doctrine that distinguishes improper broad delegations of power to prosecutors, you end up with the Arizona case. Whereby an improper legislative action gets saved by hypothetical prosecutor conduct. But so long as there are no costs with passing bad bills, it’s not going to stop anytime soon.

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  • Jeff Gamso
    20 September 2016 at 10:06 am - Reply

    The problem, of course, is the collateral damage. Sure, when some crazy prosecutor actually does bring charges against an MD for conducting an exam or a parent for changing a diaper (and it will happen), we can hope the jury will acquit or, if not, that some appellate court will vacate a conviction. Same with an unexpected and bizarre prosecution for some unimaginable white-collar, regulatory offense.

    But maybe there won’t be relief. And if there is, at what cost to the victim of the prosecution – and the victim’s family and friends?

    John Roberts (and I’m no fan) got it exactly right when he said in Stevens v. U.S. “But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

    The same rule should be applied across the board. Yeah, prosecutors should have discretion. But the statutes and rules should constrain that discretion before, not after the fact.

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