Public prosecutors should enforce the law or be removed. There is a law and order movement ready to be born.
San Francisco District Attorney Chesa Boudin looks on as city supervisor Hillary Ronen speaks during a recall election-night event on June 7, 2022. (Photo by Justin Sullivan/Getty Images)
Attorneys who work in the public sector have the unique experience and responsibility of representing not a private client, but the people, the taxpayers, society itself. Along with the blessed privilege of not having to bill clients with high hourly rates—a privilege I thank God for every day as a county solicitor—public sector attorneys have a solemn duty not simply to provide zealous representation to their client and win their case, but to pursue what is proper under the law regardless of what that means for the outcome.
When public sector attorneys in general and prosecutors in particular fail to live up to their lofty calling, the results are truly dangerous. A politically motivated prosecutor can use his power to unevenly apply the law and prosecute political or ideological enemies. An unscrupulous prosecutor may decide his goal is to win criminal cases at any cost, covering up unfavorable evidence and trampling on the rights of defendants. An ideological left-wing prosecutor may choose to use his power not to uphold and enforce the criminal law, but to enact social reform.
This effort is prevalent today and conservatives need to coherently identify and defeat it wherever it rears its lawless head. As Justice Robert Jackson (then United States Attorney General Jackson) noted in his famous 1940 speech about the role of prosecutors, “while the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” Any criminal prosecutor who is acting from base motives, from any motive other than impartially enforcing the criminal law as written to advance the common good, cannot be tolerated in civil society.
Between the recent recall of San Francisco District Attorney Chesa Boudin, the impending recall of Los Angeles District Attorney George Gascon, and the Pennsylvania legislature’s recent decision to introduce articles of impeachment against Philadelphia District Attorney Larry Krasner, there is potential for a movement here. As Katya Sedgwick recently wrote for The American Conservative, the recall of the San Francisco District Attorney Chesa Boudin “has yet to morph into a full-fledged political movement with a coherent ideology capable of delivering true change.” But it can. And it needs to. There is the potential to unite a voting coalition that could create a real law-and-order reform movement and remove the dangerous progressives currently occupying many district attorney offices.
First, we should distinguish between two different types of bad prosecutors mentioned earlier. The type of prosecutor who enforces the law unevenly, using the law as a weapon against his personal or political enemies, is quite different from the left-wing activist prosecutor. The central issue in the current moment is that we have powerful prosecutors in major cities motivated by political ideologies that, in many cases, discourage the prosecution and imprisonment of criminals. The prevalent issue is not that officials use criminal prosecution as a personal weapon, but rather that for ideological reasons they are choosing not to wield the weapon at all. As a result, they offer shocking plea deals to dangerous criminals. Or they make public announcements that they will not prosecute certain types of crimes.
This is unacceptable. The prosecutor’s role is to enforce the criminal laws as they are written. The legislatures have passed criminal codes reflecting the will of the people as to which behaviors ought to be prosecuted as criminal. The prosecutor’s job is to enforce those decisions, not to make the decisions. Of course, district attorneys’ offices have limited resources and have to make case by case decisions about which prosecutions to focus on. But announcing that certain actions defined by law as criminal will never be prosecuted goes beyond prosecutorial discretion. It is an abuse of office.
An analogy between the role of judges and the role of prosecutors helps explain the abuse. Justice Antonin Scalia was convinced that the death penalty was legally permitted under the Eighth Amendment, but he seriously wrestled with the question of whether the death penalty was moral according to his conscience and religious beliefs. He concluded that it was. He remarked wisely that if he was ever convinced what the law required of him was immoral, his proper recourse would be “resignation rather than simply ignoring duly enacted constitutional laws.”
Left-wing district attorneys ought to take note. If they believe that the criminal laws passed by the legislature are immoral or ineffective, they should resign from their prosecutorial roles and run for the state legislature. These activists are occupying the wrong office.
Sadly, I am not optimistic that any left-wing prosecutors will heed the call to do some soul-searching, realize they are acting lawlessly and disregarding the core duties of their office, and resign. Therefore, the political efforts to recall and impeach wayward prosecutors are necessary to stop what is becoming a crisis.
This movement can succeed, even in cities that consistently vote Democrat. In the 1993 election for mayor of New York City, Rudy Giuliani managed to become the Republican mayor of an intensely Democratic city. Granted, Giuliani’s platform was rather liberal on many social issues, and he was endorsed by the Liberal Party. But the point remains: New York City was devastated by violent crime, as well as “a general sense of unrest…a feeling that the city was uncontrollable and that the general quality of life in the city had declined.” This feeling of unrest and a lack of control in a major Democrat-controlled city led the people to reject lawlessness and actually elect a Republican promising law and order.
The examples of New York City in 1993 and San Francisco in 2022 provide a valuable lesson. When violent crime invades a community, when a sense of unrest, chaos and decline envelops a society, the people act. They choose law and order; they opt for safe and stable communities. Conservatives need to seize these opportunities, come together with a message that will attract independent and Democrat voters, and take back control of the city streets from violent criminals and the progressives who enable them.
This is not mere partisan politics. This is common sense. Without the rule of law, no other issue matters and communities fall apart. This toxic atmosphere of lawlessness and crime, of chaos and unrest, is prevalent in major cities all across the nation. District attorneys that fail to zealously enforce the law are a major part of the problem. They need to do their job or by hook or by crook, by impeachment or recall, they need to go.
Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in The American Conservative, the Quinnipiac Law Review, the Federalist, and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.