Prosecutorial Indiscretion

On June 15, 2012, hundreds of thousands of foreign nationals living illegally in the United States turned on their television sets to hear that they had become eligible for (1) a renewable two-year deferral of removal from the country and (2) a work permit.

While this may seem like a big change for those immigrants, the focus here will not be on what it might do for them, but how it was done, and why.

How do you think it was done? Choose one of the following: (a) Congress passed a new law and the president signed it, (b) the Supreme Court struck down an existing law, (c) the president issued an executive order, or (d) none of the above.

If you chose (c), it would be understandable, as it was President Obama who announced this change in front of the cameras outside the White House. There was, however, no executive order. An executive order cannot be used to overturn an existing law. On September 28, 2011, President Obama told a group of Hispanic journalists that “this notion that somehow I can just change the laws unilaterally is not true. The fact of the matter is there are laws on the books I have to enforce.” The rest of the transcript is here:

http://blogs.suntimes.com/sweet/2011/09/obama_on_dream_act_cant_just_c.html

The correct answer is (d), none of the above, which leaves the question, “Then how?”

On June 15, Janet Napolitano, Secretary of the Department of Homeland Security, sent a memo to three of her underlings directing them to “exercise prosecutorial discretion” in the cases of certain “low priority” illegal aliens, “effective immediately.” (Yes, she ordered them to exercise discretion.) The memo enumerates the criteria to be used to determine which illegal immigrants will get the deferrals and work permits. The memo is here:

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

That’s right; it was done by interoffice memo.

It seems odd, doesn’t it? When I hear of prosecutorial discretion, I think of cases in which discrepancies in the chain of custody of a bag of pot lead the prosecutor not to bring charges or perhaps to drop charges, that sort of thing. But in this case, according to the June 15 New York Times, “more than 800,000 young people” are now eligible for deferrals and work permits because an unelected bureaucrat fired off a memo. Upon reading that, I had three thoughts: first, “That’s quite a few people.” Then, “That’s a pretty sweeping change.” And finally, “That’s some discretion.”

In any case, that seems to be how it was done. But why was it was done in just that way?

What follows is an informal examination of the power of prosecutorial discretion in the United States that may help explain the Secretary’s memo.

I once stayed with a friend who lived in the country just outside Düsseldorf. To go into town, I had to walk a few hundred yards to the end of a narrow lane and then cross a road to get to the bus stop. There was a crosswalk with a signal light activated by a button.

The first time I went to town, I walked down the lane, pressed the button and waited. Then I waited some more. With nothing but time on my hands, I looked down the road toward town and saw a straight, empty road that disappeared into some trees about of a quarter mile away. There were neat fields on either side. I turned my head and looked the other way and saw the same thing, fields and all. I then looked across the road toward the bus stop. After a minute or so, the light changed and I crossed.

On my second trip to town, I pressed the button, looked both ways, and, seeing exactly what I had seen before, quickly crossed the quiet, two-lane road.

In the shade of the bus shelter sat a German woman who did not approve of what I had done. I could tell that she did not approve because she told me so. Though my German is limited, I pieced together her strasse, verboten, and dummkopf, along with her gestures and facial expressions, and got the message. As I stood listening, I was reminded that German could do with more vowels and less phlegm. I was also reminded that I was not in Kansas.

Under the signs that tell pet owners to use plastic bags one often finds a fresh reminder of American pragmatism that would make William James proud.

Americans tend toward pragmatism. An American might say, “The purpose of the light is to prevent people from being run over by cars. If there are no cars, then the light, pragmatically speaking, has no purpose.”

Germans tend toward what might be called legalism. A German might say, “The purpose of the light is to tell the pedestrian when it is permitted to cross the street and, more importantly, when it is forbidden to cross the street.” To the German, the cars have nothing to do with it. While this is a simplification, it is not wrong.

In Southern California, where I live now, American pragmatism is on display for all to see. Each citizen sifts all rules, regulations, and laws through a personal pragmatic filter that removes those that are without purpose or of low priority.

A few examples will make the point. Speed limit signs are, of course, viewed as suggestions. Simple rules of the road regarding merging, tailgating, and signaling lane changes are ignored more often than not. Bicyclists are generally oblivious to traffic lanes, signs, and signals. Many locals feign surprise when told that the recreational use of marijuana is not legal. Only tourists stop at the signs that read “STOP”; locals just glide through. Under the signs that tell pet owners to use the plastic bag provided in the little dispenser one often finds a fresh reminder of American pragmatism that would make William James proud.

A German might ask, “What about the police?” In general, the police exercise a great deal of discretion. They use their personal pragmatic filters to screen out low priority violators and violations. Germans are surprised to see that people continue to disobey many laws even when the police are watching. Some of these violations, like dope smoking, depend on the jurisdiction, while others, like breezing past stop signs, are universal. What really shocks the Germans is that the police disobey many laws themselves. Those who doubt this can follow a squad car through traffic in Southern California and count the violations.

Some Germans find all this pragmatism bracing. Once, when I was camping in Zion National Park, a German with an RV and a sunburn walked up to me. In a beer-fed state of shirtless ecstasy, he threw out his arms and shouted, “Everything in America feels so free!” Most Germans, however, are appalled by our pragmatism. To them, it just seems stupid. I know this because they have told me.

The legal systems of the two countries reflect the difference between pragmatism and legalism. In the United States, as Rebecca Krauss explains in her essay The Theory of Prosecutorial Discretion in Federal Law: Origins and Development,“Prosecutorial discretion is a central component of the federal criminal justice system. Prosecutors decide which cases to pursue and plea bargains to accept, determining the fates of the vast majority of criminal defendants who choose not to stand trial.” She concludes the paragraph by pointing out: “In Germany, however, a rule of compulsory prosecution constrains prosecutorial discretion, checking the prosecutor’s ability to pick and choose which cases to pursue. No comparable regime restrains American prosecutors.” The entire essay can be found here:

http://erepository.law.shu.edu/circuit_review/vol6/iss1/1

Generally, then, in Germany, citizens obey the laws, the police enforce them, and the prosecuting attorneys, if the evidence is sufficient, take cases to trial. By contrast, in the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey; police exercise enforcement discretion, deciding which offenses and offenders merit citation or arrest; and prosecuting attorneys exercise prosecutorial discretion, deciding which cases will be brought to trial. While this is an exaggeration, it is not wrong. (In China I was told, in response to a question about driving with my headlights on during the day, that “any behavior that is not explicitly permitted should be considered to be prohibited.” They make Germans look like softies.)

There is another connection between American pragmatism and Secretary Napolitano’s use of prosecutorial discretion. Pragmatism is at the root of the illegal immigration problem.

It is obvious that for millions of foreign nationals to reside illegally in the United States, millions of foreign nationals must be exercising perpetratorial discretion and knowingly disobeying what they deem to be low priority laws that cover border crossings and residing in the country without authorization.

In the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey.

In order for them to stay, of course, it is also necessary for millions of American citizens to exercise their own perpetratorial discretion and knowingly disobey low priority laws that ban hiring illegal aliens. So, undocumented immigrants are hired to pick crops, mow lawns, frame houses, flip burgers, clean hotel rooms, assemble mobile homes, and take care of wealthy people’s children. It is not difficult to find workplaces in Southern California where most of the employees are in the county illegally. Both those doing the hiring and those being hired are getting what they want. As they see it, pragmatically speaking: no harm, no foul.

In addition, entire municipalities, counties, and even states are exercising enforcement discretion, looking at (or not looking at) the offenses and the offenders and deciding that immigration regulations are low priority laws that do not warrant action. Sometimes, the federal government even gently thwarts the efforts of smaller jurisdictions to give these laws a higher priority. Put another way, the crosswalk light says, “Don’t walk,” but there are few, if any, cars.

The consequence of all this perpetratorial and enforcement discretion is that there are very roughly estimated 11 million illegal immigrants living in the United States. What could be a more fitting a punch line to this droll tale than to have the welcome mat put out for 800,000 of these immigrants with an act of mass prosecutorial discretion?

But back to the question: why was the memo sent?

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes. Secretary Napolitano could not have sent the memo without his approval. He gave his approval because he wants to keep his job and, for that to happen, there must be a strong Hispanic turnout. The memo will help him get that turnout.

If the release of the memo and its theatrical announcement were not a reelection stunt, the policy could have been quietly announced to the press long ago.

Oh, wait. It was.

According to the Los Angeles Times (August 18, 2011), “The Obama administration announced Thursday that undocumented students and other low-priority immigration offenders would not be targeted for deportation under enforcement programs. . . . The move means that those who are in deportation proceedings will have their cases reviewed and, if they are set aside as low-priority, could possibly be given work permits.” Here is the entire article:

http://latimesblogs.latimes.com/lanow/2011/08/dream-act-students-not-targeted-for-deportatiom.html

So, in effect, the change had already been quietly launched last August. The June 15 memo and White House announcement really were a political circus act.

There is a more serious problem with this memo. Prosecutorial discretion has traditionally been used by government attorneys to quietly decide if individual cases should be tried. If the circumstances of a specific undocumented immigrant’s case were such that the attorney in charge of the case judged deportation to be inappropriate, that attorney already had the discretion to defer removal. With this memo, there is not much discretion left. The criteria for deferring removal are enumerated. Discretion has also ceased to be discrete. Prosecutorial discretion has been transformed into a mass political weapon launched by the president from the White House lawn. Its purpose is not only to win millions of votes and the election in November, but also to circumvent the legislative process.

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes.

Since the failure of the DREAM Act to pass the Senate, one of the president’s slogans has been, “We can’t wait for Congress to act.” With this memo, we now see what the slogan means. Executive impatience with the legislative and judicial branches of government has a long and colorful history. Historically, many elected executives have become so impatient with the separation of powers that they have arrogated legislative and judicial powers to themselves. While using prosecutorial discretion to alter, practically speaking, the status of 800 thousand people under existing law in order to win an election may not sink to the level of abolishing the legislature, it is an unfortunate step in that direction.

In her essay (see link above), Rebecca Krauss makes three points about this expansion of prosecutorial power. First, far from being embedded in the constitution, prosecutorial discretion does not make its first appearance in American case law until 1961. It has been cited with increasing frequency ever since. Second, prosecutorial discretion is not subject to normal judicial review, and is consequently outside the balancing framework of the separation of powers. Third, the rapid growth of prosecutorial discretion in both its breadth of scope and its frequency of use has been of increasing concern to legal scholars. Summing up these points, Krauss writes:

The Framers’ “constant aim [was] to divide and arrange the several offices [of government] in such a manner as that each may be a check on the other,” yet the other branches of government provide almost no check on prosecutorial powers. Rachel Barkow has remarked that “[o]ne need not be an expert in separation-of-powers theory to know that combining [modern prosecutorial] powers in a single actor can lead to gross abuses.”

The Napolitano memo was an abuse of prosecutorial discretion. While it may have been legal, it was an electioneering gimmick and a contrived expansion of prosecutorial discretion. Some day, the shoe may be on the other foot. What if a future president, exercising prosecutorial discretion, deems an array of federal gun control laws to be “low priority,” and directs the responsible authorities to defer all action in enforcing those laws and in bringing such cases to trial? What do you suppose the New York Times editorial page will have to say about prosecutorial discretion then? Or suppose a president deems the laws that defend private property to be “low priority” and has one of his secretaries fire off a short memo that suspends “effective immediately” all enforcement of private property rights? What do you suppose libertarian journals will have to say about prosecutorial discretion then?

Our democracy is an untidy system, with its checks, balances, two houses, three branches, and 50 states. It’s full of squabbles and compromises, contradictions and delays. It is that way by design.

Tyrannies are neat. All you have to do is send a memo.