Prosecutorial Discretion vs Executive Legislating

Posted: Aug 04, 2014 2:30 PM

President Obama is currently testing public opinion to see just how many more illegal immigrants he can grant temporary amnesty to.

So on some days, his minions will leak to the press that the White House is considering granting temporary legal status to more than half of all illegal immigrants in the country. And then on other days, after there has been some blowback in the press, other minions will walk back the scope of the proposed new amnesty.

None of this is being done with any input or consent from the American people's elected representatives in Congress. Obama plans to act unilaterally claiming he has the "prosecutorial discretion" to enforce immigration laws as he sees fit.

And, in fact, prosecutorial discretion does play an integral role in our democracy. No law enforcement agency has the resources to enforce the law perfectly, nor is blind enforcement of the law always justified.

Take, for example, a situation familiar to almost all Americans: speeding.

In Virginia, for example, it is Class 1 misdemeanor if you are caught going more than 20 miles an hour above the posted speed limit. So, completely hypothetically, if one was to get pulled over going 76 miler-per-hour on I-66 (posted speed limit 55 miles-per-hour) that person would be facing conviction of a crime on par with drunk driving, assault, or battery.

But very few people who get caught going 76 miles-per-hour on I-66 are charged to the full extent of the law. If they have a clean driving record, if the road was empty at the time, and if they are otherwise outstanding citizens, then a prosecutor may let them off with a simple speeding ticket or even just a warning.

But if they have a history of speeding, or a past DUI, or other trouble with the law, the prosecutor may go for a stiffer sentence. That is classic prosecutorial discretion.

Now imagine, that the Fairfax County Commonwealth's Attorney is up for reelection, and locals have become upset about the speed limit on I-66. But for whatever reason the Fairfax County Board of Supervisors refuses to raise that speed limit.

The Commonwealth's Attorney sees a political opportunity and announces his Deferred Action for Resident Commuters (DARC) program to address the "problem".

Under DARC, Fairfax County residents can fill out a special form created just for DARC. After paying a $465 fee, the Commonwealth Attorney's office will check to make sure that the applicant meets all the other program requirements: DARC recipients must have been in the county for five years, they must have at least a college degree, they must be at least 31 years of age, and they must have a good driving record.

Once their DARC applications have been approved, DARC recipients are given a special sticker for their car that means they are now allowed to travel 75 miles per hour on I-66. The stickers are only good temporarily and can be renewed every two years. All other motorists, even those who would otherwise qualify but only recently moved to Fairfax and are unlikely to vote, can still be prosecuted for going over 55 miles per hour on I-66.

Is our fictional Commonwealth Attorney's DARC program really acting within the scope of "prosecutorial discretion"? Or is it an abuse of his office? An act of legislating, perpetrated purely for political gain?

If you see no difference between every day prosecutorial discretion and the fictional Commonwealth Attorney's DARC program, then you also should have no problem with Obama's existing Deferred Action for Childhood Arrivals (DACA) program, or his yet to be announced expansion of that program.

But if you would be outraged if your local law enforcement officials started making up DARC/DACA programs out of thin air, then you should also be outraged by what Obama has already done, and by what he is surely about to do.