Short-Circuiting the System to Play Elected Dictator


Prosecutorial discretion.

Now there’s a nice phrase.

Another phrase that’s almost synonymous with prosecutorial discretion is selective prosecution. One is considered a sometimes valid, if often abused, tool in the prosecutorial toolbox. The other heads off into the dark hinterlands of overt discrimination and flat-out corruption.

From what I’ve seen, selective prosecution is closely aligned with those other destructors of justice: subornation of perjury and tampering with the evidence.

Taken together, these little prosecutorial peccadilloes have the ability to overturn our justice system and make it into a tyranny.

Prosecutorial discretion, when mis-used for political demagoguery, can easily become a means of blocking the system and turning the whole legislative/judicial process into a sham. Prosecutorial discretion aligned with political demagoguery is so close to selective prosecution that it’s difficult to differentiate between them.

My colleague, Leah Libresco, chimed in on the question of prosecutorial discretion yesterday with a fine post on the behavior of two elected officials. These two people are at the opposite ends of the ideological spectrum on what they are demagoguing about, but their misbehavior is based on an identical misapprehension of the powers of their office.

One is Kathleen Kane, the Attorney General of the State of Pennsylvania. Attorney General Kane announced a few weeks ago that she would not do the job the voters of the state of Pennsylvania elected her to do. She would not defend the state’s law defining marriage in court. Why? Because she doesn’t agree with the law. She seems to think that the law is immoral.

Her announcement was greeted by cheers from gay rights activists and uncomprehending silence from most of the citizens she betrayed. Attorneys General have gone about the business of doing their jobs for so long that most people just take it for granted that they will do them. In fact, a lot of people don’t really understand that when an attorney general flat-out refuses to do their job in this way, it is, and should be, an impeachable offense in most localities.

The other is a sheriff in Baton Rouge Louisiana who has been arresting homosexuals for violation of what sounds like the state’s anti-sodomy law. The Supreme Court overturned this law in 2003. I would guess that the sheriff didn’t agree with this decision. He may very well mirror Attorney General Kane by thinking that the decision is immoral.

This debate about where personal morality ends and the responsibilities of office begin is not nebulous. It also does not apply to employment situations such as whether or not a pharmacist is required to fill prescriptions for RU486, a nurse should be required to assist in an elective abortion or a florist must sell flowers for a gay wedding. But it applies absolutely to elected officials.

The difference — and it is an enormous difference — is between ordinary employment and elected office. An elected official who refuses to fulfill the requirements of their job or who deliberately oversteps the limits of their powers, is violating a public trust. They are violating the Constitutional privilege to hold office and execute the powers of the people in the name of the people.

Public office is not mere employment. It is the indispensable ingredient of the smooth functioning of a just and stable government. As such, it is incumbent on every and all elected officials to do their jobs to the best of their abilities and not the abuse the powers of their office.

I react to both the situations described above, not, as Leah did, as a philosopher, but as an elected official who has been charged with fulfilling the duties of office for 18 years. I understand several key things that proponents of these two elected officials’ actions won’t accept.

First, law enforcement, from top to bottom, is not law making. Law enforcement enforces laws. It does not write them. If Attorney General Kane wanted to work to overturn Pennsylvania’s marriage law, there were many options open to her, including running for election to a law-making position. Since she is an attorney, she might also have considered not running for office at all and filing cases against the law, maybe doing it pro bono.

An Attorney General is not supposed to even take positions on the laws which they are sworn to defend and uphold. By that I mean that she should not be out making stump speeches against such laws — or for them, for that matter. Her job, and I keep saying this, but nobody seems to hear me, her job is to uphold and defend the laws of the State of Pennsylvania.

This is especially grave since, like all elected officials, she is the only person in her jurisdiction (in this case, the entire state of Pennsylvania) who holds the power of her office. If she refuses to do her job, the job can not be done by anyone else.

This is equally true of the sheriff in Baton Rouge. As an elected official, he is the only sheriff in that jurisdiction. No one else can do his job. Also, he is not a law maker or a law interpreter. He is a law enforcer. The decisions about what laws he should enforce are made by Congress, the legislature and the courts.

Elected office is a privilege, not a sentence to be served. If any elected official finds that they cannot in good conscience perform the duties of their office, they have the free right to resign at any time.

Leah Libresco used a quote from a play and movie about my patron saint, St Thomas More, in her analysis. Thomas More was the Chancellor of England. Despite the enormity of this position, he resigned when his conscience would no longer allow him to discharge his duties as the King demanded. This is a good example for all of us who hold office.

If Attorney General Kane can not in good conscience do the job that her office requires of her, she has the clear option of resigning. What she does not have is the option of refusing to do her job and thereby depriving the people of Pennsylvania of the legal representation they are Constitutionally entitled to.

I am glad that Leah found this example giving the other side of this argument. Maybe it will help clarify what is at stake for those people who are so enthralled with their particular advocacy that they are willing to support overturning the very structure of government that gave them the right to advocate in the first place.

From Unequally Yoked:

I’m a little troubled by the way same-sex marriage is becoming de facto legal in Pennsylvania.  When I was having SCOTUSblog parties back in June, I found the reasoning based on standing kinda messy.  If a law is challenged, it seems like the appropriate state officials should be obligated to defend it.  Ducking it seems like a odd kind of de facto veto.  And not a proper civil disobedience-y one, a la Mayor Jason West of New Paltz, who conducted then-illegal marriages and was charged for it.

And now this is playing out in Pennsylvania.  The PA Attorney General Kathleen Kane declined to defend her state’s ban on same-sex marriage, and it’s unclear who will pick up the baton, or if anyone will be left with standing to do so.  The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court.  Not short-circuiting the system over a conscience objection.


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  • TheodoreSeeber

    I completely agree with both you and Leah.

    I’m reminded of a STTNG episode- the one where Riker is the only officer available to try the case of the Personhood of Commander Data in court. Had he refused to prosecute the case the summary judgement would have gone against Data. The character clearly didn’t want to prosecute his friend, but had to because it was his duty- and in so doing, provided justice for his friend that would otherwise have been unavailable.

    I sure wish these State AGs would look upon defending laws they disagree with the same way, because without their participation, we end up with a subverted system.

  • D. A. Christianson

    I’m glad you understand, many, maybe most, do not.

    The law, is the law, is the law. It may be a good law, it may be indifferent, it may be bad, it IS the law. It may be a just law, it may be an unjust law. It is the law. It may be a moral law (to you) it may be an immoral law (again to you). It is the law.

    Enforce it (equally) or resign. It’s a binary solution set. It’s as clear as distilled water. Anything else is a corrupt officeholder.

    • Bill S

      “Enforce it (equally) or resign.” Or, alternative 3, don’t enforce it and deal with the consequences. Where does it say that she can’t do that? It happens all the time. Whether you complain about it or not really depends on your own personal bias. I’m glad she has chosen not to defend it. If she ran for office in my state or district, I would vote for her.

      • D. A. Christianson

        No, if she morally feel that she cannot do the job she was elected to do, whether she is right or wrong is irrelevant, it is completely anti-ethical for her to take money and occupy the office of someone who is able to do the job. If she ran for office knowing this, her candidacy was fraudulent. The same is true for the Sheriff.

        If you don’t like the law, get the legislature to change it, or move.

        Anything less subverts the system.

        • Bill S

          ” it is completely anti-ethical for her to take money and occupy the office of someone who is able to do the job.”

          So, she weighed all her options and chose to do nothing, which to you is anti-ethical. She would rather look like an ass than feel like one. You go, girl!

  • Sven2547

    I’m reminded of the phrase “Serve and Protect”.
    One of these officials is protecting the people. The other is not.

    • hamiltonr

      Sven and Bill: You guys are so biased, you’re comic. Does either of you have any other value besides allowing homosexuals to do whatever they want, the Constitution, this country and all the rest of the world be damned?

      • Fabio Paolo Barbieri

        I have come to the conclusion that Bill S is the invention of a shadowy collective of Evangelical propagandists. To be so continuously wrong in everything to do with basic morality ought to be impossible for any human being. This is a caricature, not a person.

        • Bill S

          “Evangelical propagandists”??

          No. You’re getting colder.

          “To be so continuously wrong in everything to do with basic morality ought to be impossible for any human being. ”

          Your “basic morality” not society’s. there is a big difference. For the most part, society has got it right and Catholics have got it wrong. It is an integral step in our evolution. Religion is like wisdom teeth or the appendix.

          • Fabio Paolo Barbieri

            Your support for omerta’, for state omnipotence, for prejudicial behaviour in government officials, for self-indulgence in the powerful, IS NOT supported by the majority of society. On the other hand, it ought to be a very good basis for a swift career in the service of the corrupt.

            • Bill S

              When I say that people should mind their own business, I am not advocating omertà. And I recognize the authority of the government. Is that such a bad thing?

      • Sven2547

        I think people should be able to do what they want, as long as it doesn’t hurt anybody / anything.
        It’s called “freedom”. It’s a shame you’re against it.

        • FW Ken

          So you think that business owners should be free to pick and choose which customers they serve? What insurance coverage they provide?

          • Bill S

            Freedom is for people but not necessarily businesses. When you start a business, you become subject to a stricter set of rules that can’t help but to reduce your freedom. For example, when I drove cab for my father, I was not free to refuse to take a black to his home in a section of Boston that was dangerous to whites and especially white cab drivers. Was I being persecuted? No. Was I less free to refuse him than if I had picked him up hitch hiking in my personal car? Yes. Because my father owned taxis and a condition of that ownership was that his drivers could not discriminate even if it cost them their lives. If they did, my father could lose his hackney licenses. Personal freedom does not apply to businesses.

            • D. A. Christianson

              That’s another subversion of the system, if I own my business I (should) have the right to serve (or not serve) anybody I choose for any reason. And I do, frankly I don’t really care about their beliefs, other than perhaps their honesty, but if they have a record of not paying their bills, I’ll turn them down every time, I’ll say so clearly and effectively too. It’s my business, my property, how I use it is up to me.

              And you don’t want to hear me on the abuses of the licensing system.

              Government is however different, it belongs to all the people, even those you disagree with, and must serve them as directed by the legislature.

            • FW Ken

              Then there is no such thing as private property.

              • Bill S

                This is not a discussion about private property. It is about freedom. You tried to apply personal freedom to say that a business owner should be free, and I will be specific based on where you were going with this, to refuse to serve gays or pay for contraceptive coverage. Don’t deny it. That’s what you were thinking about even though you didn’t get there yet.

                I responded that businesses do not have as much freedom in this country as do individuals.

                • FW Ken

                  Sven brought up freedom. Historically, property rights are bound up to freedom. Perhaps if you rose above your personal obsessions for a moment, you might have something to say that is worth hearing.

  • Bill S

    The Attorney General is taking the high road and the Sheriff is taking the low road. The AG is choosing not to discriminate against gays because it is immoral. The Sheriff is harassing gays because he is immoral.

    • hamiltonr

      Bill and Sven:

      You both sent me irate diatribes (especially Sven) when I said your extreme bias was comical. To be honest boys, those diatribes were pretty comical, too.

      Here’s the point: You think that the state of PA’s top law enforcement official is A-OK in refusing to do her job because you don’t like the law that she doesn’t like and is refusing to do her job over.

      On the other hand, you think that the chief law enforcement officer in the county where the sheriff in LA has jurisdiction is wrong to overstep the boundaries of HIS office because, again, you don’t like that law.

      Your reasons have nothing to do with anything except your desire to have elected officials everywhere follow you and your opinions. When they do what you would like, then they’re right. If they don’t, they’re wrong.

      Your opinions are so entirely self-referencing and — dare I say it? — downright narcissistic in how they are supported that they are, truly, comical. You don’t care if an elected official does their job or not. You also don’t care if the citizens are deprived of their right to representation in the courts, or even if law enforcement is consistent in following the law when it arrests people.

      All you care about is that those in power support whatever the gay rights movement wants. Period. Democracy, this country, the rights of other citizens, just and stable government, be damned. All you want is your way.

      Sorry if I don’t take you fellas as seriously as you seem to think I should.

      I don’t normally reference private insults that people send me on this blog. I just delete and forget. But this was so funny I had to do it.

  • Manny

    Elected non-legislative officials are elected (and therefore hired) to execute the laws of the land. They have a responsibility to carry out what was dutily legislated. I can understand how their might be some discrection in interpretation (and if so the legislative branch needs to refine their language if such ambiguity occurs), but I cannot understand purely choosing which laws to enforce. It really undermines the entire system. Both you and Leah are right on here.

  • FW Ken

    We had two sheriffs in Texas who 20 years ago or more, ran sting operations on highway rest stops. They would charge a guy with public lewd then shake him down to not actually file the charges. This had nothing to do with gay stuff; it was about the money, pure and simple. Actually, the Johnson County rest area was a known hook-up site which could have used some cleaning up, but that wasn’t what they were doing. I wonder what the Louisiana sheriff thinks he is doing?
    The Pennsylvania situation thing doesn’t bother me much, since apparently the state has a decent work-around. I can imagine being a prosecutor with moral reservations – like about the death penalty – and not wanting to work a case.

    • hamiltonr

      Ken, prosecutor’s offices are full of asst das. Someone else could pick it up.
      However, the AG for the state is the only one of those there is.

      Also, deciding what crime to file and which sentence to seek is well within any prosecutor’s job description. Deciding that you simply will not prosecute some laws because you don’t like the law — lynching, or gay bashing or wife beating, come to mind as historic examples — is not within a prosecutor’s legitimate job authority. Neither is selective prosecution where you apply the law to some people and not others — again, lynching, gay bashing and wife beating come to mind as historic examples — is also not within a prosecutor’s legitimate authority.

      Also, a prosecutor, whether federal or local, does not have the job of defending the law itself. That is the unique and very important — irreplaceable — responsibility of Attorneys General. That particular job is what we are discussing in the instance of Attorney General Kane.

      • FW Ken

        Rebecca -

        I hear what you are saying, and, overall, agree with the point, but Pennsylvania apparently allows from an alternative, which is a sight better than California. I’m sure the AG also has assistants (ours does), but removing it from the moral sensibilities that certainly pervade her office seems smart to me. Do you think she could put on a real defense of the law she abhors?

        This is something that Pennsylvania voters can consider at the next election. If she is doing the job otherwise, Pennsyvanians can factor that into their votes. Californians have a more stark choice.

        • Bill S

          “This is something that Pennsylvania voters can consider at the next election.”

          I think that is the bottom line. This is not going to be detrimental to her political aspirations at all. Why would she not go this route? Because some people who have no influence over her career think it is unethical?