Faithful Execution in the Fifty States

• Publication year: 2023

Faithful Execution in the Fifty States

Zachary S. Price
UC Hastings Law, pricez@uchastings.edu

Faithful Execution in the Fifty States

Cover Page Footnote

Eucalyptus Foundation Endowed Chair, University of California College of the Law, San Francisco (formerly UC Hastings College of the Law). Portions of this article were included in a paper prepared for a conference on "Presidential Administration and Political Polarization" at the George Mason University Scalia Law School's C. Boyden Gray Center for the Study of the Administrative State. I thank the Gray Center and the UC Law SF Academic Dean for generous support. For helpful comments on earlier drafts, I thank Jon Abel, Ming Hsu Chen, Keith Hand, Aaron Nielson, Dave Owen, Reuel Schiller, Jodi Short, and Chris Walker, as well as participants in the Gray Center conference, the Ohio State Law School faculty colloquium, a panel discussion on Prosecutorial Nonenforcement hosted by the University of Wisconsin Law School State Democracy Research Initiative, and the Markelloquium criminal law workshop hosted by New York Law School. Justine Chang, Jillian Guernsey, Hannibal Huntley, and Rahil Maharaj provided superb research assistance; Vince Moyer and the UC Law SF library staff offered invaluable help chasing down sources; and the editors of the Georgia Law Review performed excellent editing and cite-checking. The author is solely responsible for the views expressed and for any mistakes

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FAITHFUL EXECUTION IN THE FIFTY STATES

Zachary S. Price^*

Amid heightened political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly. Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to statutory law's primacy. Under an emerging alternative approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise. The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act. More recently, a number of self-described "progressive prosecutors" have employed the same theory at the local level to nullify state laws forbidding theft, shoplifting, drug possession, prostitution, and other crimes on social-justice grounds.
Although these developments have provoked heated public debate, most discussion to date has presumed incorrectly that a generalized model of prosecutorial discretion applies nationwide. In fact, far from prescribing a common model of prosecutorial authority, the laws of the federal government and

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the fifty states vary widely with respect to the degree of enforcement discretion they presume and the degree of autonomy they afford to local prosecutors.
Some states forbid categorical nonenforcement altogether, while others afford near total autonomy to locally elected prosecutors. Most states fall somewhere in between. These varied laws—and not generalized abstractions about the rule of law, criminal justice policy, the proper prosecutorial function, or even the proper degree of local policy-making autonomy—should govern whether categorical nonenforcement is lawful in a particular jurisdiction. Refocusing debate on these varied state arrangements would not only give proper effect to governing positive laws, but also lower the stakes in each particular controversy. At the same time, it might help build greater capacity to enforce state constitutional law in other areas, helping to stabilize state government amid increasingly turbulent politics.

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Table of Contents

I. Introduction....................................................................655

II. Mounting Controversy over Prosecutorial Discretion......................................................................663

A. A CONCEPTUAL ACCOUNT OF ENFORCEMENT DISCRETION.............................................................666
B. DISTINGUISHING CASE-BY-CASE AND CATEGORICAL NONENFORCEMENT..................................................670
C. CATEGORICAL NONENFORCEMENT'S SUDDEN AND UNEXPECTED RISE....................................................673
D. SHIFTING POLITICS OF CRIME—AND RESULTING DISTORTIONS IN DEBATE..........................................679

III. The Fifty States Compared to the Federal Government...................................................................685

A. GENERAL FEDERAL-STATE DIFFERENCES AND THEIR HISTORY...................................................................685
B. RESULTING PROBLEMS FOR GENERALIZED THEORIES OF PROSECUTORIAL DISCRETION...................................690

IV. The Fifty States Compared to Each Other..............694

A. STATES WITH EXPLICIT BANS ON ENFORCEMENT SUSPENSION.............................................................699
B. STATES WITH AFFIRMATIVE DUTIES ON STATE-LEVEL OFFICIALS TO ENSURE ENFORCEMENT.....................703
C. STATES WITH CENTRALIZED LAW ENFORCEMENT RESPONSIBILITY.......................................................710
D. STATES WITH BROAD CENTRALIZED SUPERSESSION POWERS....................................................................718
E. STATES THAT REQUIRE NON-EXECUTIVE APPROVAL FOR SUPERSESSION.........................................................724
F. STATES WITH SPECIFIC LIMITS ON CENTRALIZED SUPERSESSION.........................................................729
G. SUMMARY.................................................................735

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V. Benefits of a Positive-Law Approach.........................736

VI. Conclusion.....................................................................739

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I. Introduction

Prosecutorial discretion has become a political battleground. For decades, if not longer, an uneasy equilibrium prevailed: though exercising enormous discretion in practice and even recognizing an obligation to forego charges in some cases in "the interests of justice,"¹ prosecutors nonetheless presented themselves as humble servants of the public will reflected in legislation. Within the space of roughly ten years, this model has eroded, giving way to a different model, associated for the moment with progressive politics and criminal-justice reform, in which prosecutors actively reshape the operative law in their jurisdictions by openly suspending enforcement of disfavored statutes. Employed at the federal level in high-profile policies relating to marijuana regulation, as well as immigration and the Affordable Care Act, this model has since become one hallmark of the self-described "progressive prosecutors" who have won office in local jurisdictions across the country. Among other reforms, such prosecutors have announced policies suspending enforcement of laws forbidding drug possession, petty theft, shoplifting, prostitution, and other crimes.

This approach to prosecutorial authority, which I will call "categorical nonenforcement," has sparked a heated, nationwide controversy, with some celebrating the shift and others decrying it as an invitation to lawlessness.² Yet this debate has been remarkably disconnected from the actual law governing the question. In fact, far from prescribing a common model of prosecutorial authority, as much commentary has presumed,³ the

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laws of the federal government and the fifty states vary widely with respect to the degree of enforcement discretion they presume and the degree of autonomy they afford to local prosecutors.

At the federal level, although enforcement discretion is central to federal criminal law and other areas of regulation, separation-of-powers provisions including the President's constitutional duty to "take Care that the Laws be faithfully executed"⁴ place important limits on prosecutorial nonenforcement.⁵ States, too, nearly

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uniformly impose obligations of faithful execution on their governors, suggesting that state law likewise forbids categorical nonenforcement of state laws. Yet nearly every state also provides for locally elected prosecutors, thus creating at least the possibility of varied prosecutorial approaches in keeping with local preferences, and state laws vary widely in the degree of authority and autonomy they afford to such prosecutors. Whether categorical nonenforcement is permissible in any given jurisdiction should turn on these features of state positive law and not generalized abstractions or federally-derived assumptions about separation of powers.

In fact, the fifty states can be placed along a spectrum with respect to their relative hostility to categorical nonenforcement by local prosecutors. At one extreme, Massachusetts's constitution

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forbids "suspending . . . the execution of the laws;"⁶ California's constitution obligates the state Attorney General to "to see that the laws of the State are uniformly and adequately enforced;"⁷ and North Dakota's Supreme Court has held that local prosecutors "may not effectively repeal a law by failing to prosecute a class of offenses."⁸ Laws in these states and others like them are at odds with presuming any categorical nonenforcement power at all, let alone one vested in locally elected officials. By contrast, at the other end of the spectrum, both heavily Republican Mississippi⁹ and heavily Democratic Illinois¹⁰ limit centralized oversight of local prosecutors in ways that effectively guarantee broad local nonenforcement power. Mississippi, in particular, allows state-level officials only to assist in local prosecutions; under its law, "[i]ntervention of the attorney general into the independent discretion of a local district attorney regarding whether or not to prosecute a criminal case constitutes an impermissible diminution of the statutory power of the district attorney."¹¹ As a practical matter, such autonomy makes local categorical...