It is now seemingly the rule, accepted by everyone at every level of government that prosecutors have total discretion on whom to charge with what crimes. I think that such discretion is a good feature of law enforcement but only when applied in specific individual cases. It can give protection for an individual who commits an act that could fall into various levels of severity and can take into consideration individual factors like mental state, other contributing features surrounding the act and such. Granted even this discretion can be used by prosecutors to bend the law inappropriately. For example, failing to charge a very wealthy individual or a political colleague. Presently it is being used to avoid charging people felt to be victims of oppression. We probably have to accept this undesirable possibilities that exist because of a failure in the morals of the prosecutor to enforce the law equally.
However, there is another feature which is relatively new in prosecutorial discretion. That is when the prosecutor, whether it be District Attorney, State Attorney General, U.S. Attorney or U.S. Attorney General announces that they will not prosecute anyone under certain laws. This has happened with the immigration laws when “sanctuary regions” were declared. The Biden administration has certainly used this in handling the border situation at our southern border. Various law enforcement officers have previously announced they will not enforce various gun laws.
Now, across the country, prosecutors a various levels have announced they will not enforce laws concerning limiting abortions that have been legally passed by state legislators and signed by the governor. This is not a discretion of enforcing a law in an individual case, it is announcing that the law passed no longer has any meaning. This is legislation by administration and should be horrifying to a country supposedly ruled by law. The idea, even promulgated by various politicians, that since the courts have no real ability to enforce their rulings, they don’t have any meaning if the administrative officers disagree. This basically destroys the separation of powers that are the foundation of our Republic and clearly formulated in the Constitution. It reflects a loss of virtue in our public officials who swear to uphold the Constitution. The loss of this virtue is the true basic problem in the U.S. John Adams rightfully observed famously: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
Adams also wrote to the effect that the virtue of the officials of a nation only reflect that of the citizens. Now, how can a nation find and prioritize morality and virtue in its citizenry?
