On Prosecutorial Discretion and Tired Analogies

By Dan Cadman and Dan Cadman on May 2, 2016

Columnist Ruben Navarette recently wrote that he has come to believe that the immigration executive actions undertaken by the Obama administration were a mistake — not for the reasons cited by conservatives and pro-enforcement types such as myself, but because the recipients have been fed a meal of crumbs and expected to be as grateful as if they had gotten the steak that they deserved.

Navarette went on to suggest that at the recent oral arguments before the Supreme Court, the advocates who opposed such executive actions did a poor job of making the argument that they actions exceeded the president's lawful authority of exercising prosecutorial discretion. In making his own argument, Navarette resorts to the threadbare analogy of being let off with a warning instead of a ticket by a police officer for a traffic offense. I have heard and read this umpteen times now, and it is still as inapt as the first time I encountered it.

Suppose that I am pulled over driving 52 miles per hour in a 45-mph zone. I know full well that I was being lead-footed and so docilely give the officer my license and registration when asked. He goes back to his vehicle to do all the appropriate checks and after several minutes returns, hands me back my documents, all of which were in order — nothing expired, the vehicle in good repair. He proceeds to tell me that because I have no prior violations or points on my driving record, he is going to issue me a warning instead of a ticket. An exercise of discretion? Almost certainly.

But imagine this instead: The mayor of a major metropolitan area issues a policy memorandum stating that henceforth, as a matter of "prosecutorial discretion," police officers are to issue no summonses and make no arrests for traffic offenses. In an accompanying public statement, the mayor asserts that statistics reflect the need to focus attention on serious crimes as a priority for police enforcement, not to spend needless time on lesser offenses.

Within months, police officers through their union begin objecting vehemently and publicly. Not only are they not writing tickets for parking in a cargo zone, but they assert that the policy is so restrictive that they have ceased issuing tickets for blocking fire hydrants or speeding through school zones and that they are even routinely letting drivers off the hook for suspicion of driving under the influence of drugs or alcohol. Because they can't pull vehicles over for weaving in the roadway, they can't administer breathalyzer tests to get to the bottom of it all.

When the chief of police is asked about the severity of the officers' complaints at a city council meeting, he responds that if his officers don't like following orders, they can damn well find a new job.

Prosecutorial discretion or egregious abuse of discretion? You decide.