Prosecutorial discretion vs prosecutorial veto
I was recently asked by a reporter with the AJC whether I “was planning to prosecute anyone who violates Georgia’s abortion law, once it goes into effect?” I provided the same answer I provide below, but believe expanding on the explanation will be helpful to the public in Newton and Walton Counties. It is not appropriate for a prosecutor, even the elected District Attorney, to have a blanket approach to a law with no regard to the facts and circumstances of the specific case. Further, it is not a proper use of prosecutorial discretion to refuse to prosecute a violation of a law without regard to the facts and circumstances of the specific case. This point of view seems to rarely, if ever, be expressed to or covered by the media.
Some of my colleagues have already made public statements or issued press releases on this issue. I have a great respect for the District Attorneys all around this State. We have an unbelievably difficult job and we make difficult decisions on a daily basis to do what we believe is best for our constituents. But I believe making blanket policy refusing to prosecute a case regardless of the facts and circumstances of the specific case or situation is not prosecutorial discretion. Instead, that is prosecutorial veto.
Prosecutorial discretion is an awesome power and responsibility. On a daily basis prosecutors make decisions that affect peoples’ liberty and, at times, their lives. They do so while doing their best to achieve justice, which includes trying to make any victim whole, keeping the victim and the community safe, making sure the resolution of the case is fair, ensuring a defendant’s rights are not violated, and numerous other considerations.
This power should be exercised based on the particular facts and circumstances of each specific case or situation. This discretion must be used in making numerous decisions: what charges apply to a case, what sentence to recommend, when to seek the maximum sentence, when to dismiss the charges, when to allow the defendant to enter a pre-trial diversion program, when to place the case into an accountability court program, what evidence to present and strategy to pursue at trial, and countless other decisions. All of these, often very difficult, decisions must be made based on the facts and circumstances of the specific case before the prosecutor.
Prosecutorial veto, on the other hand, is a blanket policy to refuse to prosecute a violation of a law that makes this determination without any knowledge of the facts and circumstances of a specific case. Prosecutors are not super legislators; we cannot and should not veto a law. Refusing to make a case by case determination of a situation usurps the role of the legislative body, who is the voice of the people. Prosecutors have great power and responsibility, but with that comes the responsibility to not take our power too far. Refusing to prosecute a crime, a category of crimes, or an entire body of law regardless of the facts is taking that power too far.
Even proper use of prosecutorial discretion will inherently lead to a wide range of different outcomes in different offices even in similar cases. Some prosecutors may feel that seeking the death penalty in a heinous murder is appropriate while some may believe that seeking a life with parole sentence is appropriate based on the same facts and circumstances. Some prosecutors may feel that a prison sentence is appropriate for someone that breaks into another person’s home to steal something while some prosecutors may believe that diversion is an appropriate consequence for residential burglaries. Whatever the outcome of a specific case, there is room for disagreement by prosecutors and others. However, when decisions like these are made on the basis of the facts and circumstances of the case, regardless of someone’s disagreement with the outcome, it is a proper exercise of prosecutorial discretion.
OCGA § 15-18-6 lists the statutory duties of a district attorney. Relevant to this discussion, subsection (4) states, “to draw up all indictments and presentments, when requested by the grand jury, and to prosecute all indictable offenses.” (emphasis added by me). Based on this, the difference between prosecutorial discretion and prosecutorial veto as I have explained above is not just my opinion, it is a based on the statutory duties of the office of district attorney. Again, “prosecute” can mean going forward with charging and trying the case, but it can also mean reviewing the case and dismissing all charges or any number of outcomes. But, again, that decision should be based on the facts and circumstances of a specific case.
If a district attorney has the power to determine what laws are valid and what laws are not, where does that power end? Does a district attorney have the power to not prosecute drug possession regardless of the facts and circumstances of a specific case? Should someone that has 10 prior possession of heroin convictions that is shooting up heroin while sitting in the lobby of a daycare not be prosecuted because a single person believes the law against such actions is not worthy of prosecution? Should a district attorney have the power to refuse to prosecute theft cases regardless of the effect on the victim and regardless of the facts and circumstances? If a district attorney has that power, what stops them from having the power to refuse to prosecute any rape or child molestation case regardless of the circumstances?
There are those that would respond that no reasonable prosecutor would refuse to prosecute crimes such as rape and child molestation. But that reasoning ignores the point. If a district attorney has the power to pick and choose what laws they feel are worthy of prosecution, then they have the power to pick and choose ANY law to not prosecute. That is NOT my role as District Attorney.
Some have said that a DA has the absolute authority as to how resources within his or her office are used. While that is mostly correct, we are still subject to the laws passed by the General Assembly and we are charged with enforcing them, subject to our inherent prosecutorial discretion on a case by case basis.
Further, I do not believe that a lack of resources, even if truly the reason, is a valid justification for a prosecutor to essentially veto a law. Of course, all prosecutors do an immense amount of work with limited resources. But if a district attorney is not provided the resources necessary to do their constitutional and statutory duty, that is something to be addressed with the governing authorities that determine the budget for the district attorneys’ offices, the State of Georgia and each county’s board of commissioners.
Elected prosecutors have wide discretion in setting policies. But, I believe that policies that do not account or allow prosecutors to account for the individual facts and circumstances of a specific case are not exercises of prosecutorial discretion. I understand that there are those that disagree with my view of prosecutorial discretion. I respect those who disagree with me and believe that the concept of disagreement with respect is a concept that is sadly missing from the world today. This job is extremely difficult, one where every decision is subject to public scrutiny and second guessing. But each elected District Attorney knew that when we ran for the office.
Of course, there are still some crimes in Georgia that have not been repealed but have been held unconstitutional by the Courts. In no way do I suggest that going forward on a case involving a crime that has been ruled unconstitutional is appropriate. Further, it is my opinion that, depending on the facts and circumstances of a specific case, it may be an appropriate use of prosecutorial discretion to withhold making a decision on a case while the constitutionality of a law is currently being challenged in court.
Finally, my answer to the question posed by the media regarding the heartbeat bill is simple but maybe unsatisfying: I do not know if I will or will not prosecute something under this bill because I do not currently have a case to review to determine whether, based on the facts and circumstances, if going forward with prosecution would be appropriate. There are an infinite number of unique facts and circumstances that could arise. This bill and the topic of abortion come with extremely high emotions and firmly held beliefs by many. But, a blanket statement that a prosecutor would not prosecute a certain crime that has been properly passed by our State Legislature, signed into law by the Governor, and if found to be Constitutional is not an exercise of prosecutorial discretion. Making a decision to categorically refuse to prosecute a crime without knowing the facts of a specific case is exercising a prosecutorial veto.
Some will agree with me; some will disagree with my position. But, one must not give up their convictions to listen with respect to the other side of an issue. It is my hope that people will at least try to discuss any disagreement on these issues respectfully.
Alcovy Judicial Circuit District Attorney (Walton and Newton County, Georgia)