Prosecutorial discretion means choosing when to pursue a certain offense. Prosecutors may pick and choose their cases based not only on whether or not a criminal statute has been violated, but also on the policy implications of a particular prosecution.
A prosecutor should use her or his discretion to decline prosecuting cases if there is a sound reason for doing so. When it comes to “drug cases” that churn through our county courts, there are many sound reasons to decline prosecutions.
Until legislators act to change the laws criminalizing substance addiction, prosecutors can still opt to decline prosecuting people arrested for possession.
We lost the “war on drugs.” We did not arrest and imprison our way to a drug-free society. Addictions are a persistent problem throughout America at every socio-economic level. But in waging this so-called war we destroyed entire communities in the process.
There is a lot of blame to go around. In America being “tough on crime” is a bipartisan campaign slogan. The policies that led us to the present mass incarceration crisis rests on the shoulders of Democrats and Republicans alike.
Even today, nearly one year after the murder of George Floyd and with the mass mobilization of the Black Lives Matter Movement, the old tropes about “law and order” persist. Today some in law enforcement are even trying to frame the “war on drugs” and the use of jails and prisons as a compassionate response to the addiction crisis (click here to read how DuPage and Kane county sheriffs are fighting against bail reform by selling us on the efficacy of addiction treatment behind bars).
In trying to make a case against the abolition of cash bail, Dupage County Sheriff Mendrick argued this recently:
Kane County Sheriff Hain thinks that unless we put people in jail pre-trial, crime will go through the roof.
Neither sheriff seems to think addiction rehabilitation services can be delivered outside of a jail cell. Hain knows that substance addiction is relatively similar across racial and socio-economic groups and that white people and affluent people, more often than not, do not end up in his jail. It’s usually the poor people, Black people, and other people of color. Hain knows that white people are not immune to substance addiction and that they suffer from it at similar rates as Black people.
The difference is that white people and people living in wealthier neighborhoods do not get caught up in the criminal justice system. One reason for that is the less frequent police presence in white communities and affluent communities.
Among this group of people who do not suffer from over-policed neighborhoods or from disproportionately high rates of involvement in the criminal justice system, some get help for their substance addictions nonetheless. And it comes without the stigma of an arrest and or conviction.
What if the dollars spent in the jail budgets were re-programmed for services in the community for those who cannot afford private treatment options? Imagine – people suffering from addictions getting help without being labeled a convict?
Is that so radical?
For these sheriffs and for many other law enforcement professionals it is indeed a radical idea. Some may even see this as being anathema to their raison d’etre. The crux of these sheriffs’ thinking is that since possession of certain substances is illegal, they should continue arresting people for possession and continue warehousing them in their jails.
Things are changing.
Today we have a handful of prosecutors across the country who campaigned on progressive prosecution platforms that included the policy of “declination” for certain offenses. The possession of small amounts of substances (in addition to marijuana) is one offense that some prosecutors have opted not to prosecute. This makes sense.
Oregon is the first state to decriminalize possession of small amounts of heroin, methamphetamine, LSD, oxycodone and other hard drugs (click here to learn more about what’s going on in Oregon). Until states change their laws like Oregon recently did, prosecutors like Philadelphia District Attorney Larry Krasner are opting to decline some prosecutions (click here and here to read more on what Krasner is doing).
Declining to prosecute someone who is suffering from addictions is a recognition that treatment, and not jail or prison, is the solution.
Entry into the criminal justice system results in other negative outcomes that further exacerbate the substance addiction problem. Aside from losing jobs, not being at home with families, and the economic consequences of being convicted of a crime, recovering from addiction is a process that includes possible relapses. In a criminal justice system-based rehabilitation program relapses are not well tolerated even though they are a normal part of the recovery process.
This is why, until Illinois changes the law to something like Oregon, prosecutors must decline prosecuting low level possession cases.
The “law and order” and “tough on crime” proponents decry this tactic as an abdication of the law and a violation of an elected official’s sworn duties.
These characterizations are wrong.
Police officers and prosecutors regularly exercise discretion. There are many examples of police officers exercising discretion. The decision to police certain neighborhoods over other neighborhoods is an obvious exercise in discretion. There are other examples too.
Just because something is legislated to be a crime does not mean we need to prioritize enforcement of that law.
When was the last time the police investigated adultery, and when was the last time a local prosecutor prosecuted the offense of adultery? Adultery is illegal in Illinois. It is a Class A misdemeanor.
What about fornication? When was the last time someone was investigated for engaging in fornication? That is illegal in Illinois too. It is a Class B misdemeanor.
To be very clear – I am NOT suggesting that police officers and prosecutors are wrong to not focus on adultery and fornication crimes.
I AM pointing out that not investigating and prosecuting the plentiful cases of adultery and fornication in our communities is an exercise in discretion.
Adultery and fornication rarely make the cut.
Communities are finally, albeit decades too late, recognizing that systemic racism has wrought deep dysfunction in poor communities, Black communities, and other communities of color. The Black Lives Matter Movement is helping us understand that the failed “war on drugs” has been a ruse to discriminate against Black people, poor people, and other persons of color, and that the policies attendant to the “war on drugs” and to “law and order” mindsets have led to the mass incarceration crisis we find ourselves in today.
The criminal justice system is the wrong system to address substance addiction issues in our communities. The legalization of marijuana is a good first step, but Illinois needs to continue moving in the same direction as Oregon. Doing so is not in any way sanctioning substance addiction. It is a recognition that use of and addiction to harmful drugs is a medical problem that requires appropriate solutions outside of a jail cell.
For those who suffer from substance addiction and are held in pre-trial detention because a judge has decided pre-trial release is not an option, programs to provide treatment make sense. Arguing that the existence of such services is a reason for maintaining a cash bail system that keeps more poor people and Black people behind bars is absurd.