District attorneys who refuse to enforce the criminal law are violating their oath to support and defend the Constitution—and could be challenged on those grounds.
Angeles to Chicago to Philadelphia to Boston, urban dwellers have elected a new breed of district attorneys who style themselves “progressive prosecutors.” In this denomination, the adjective does the heavy lifting. The prosecutors’ campaigns have been funded by the bogeyman of the Right, billionaire leftist George Soros, and animated by extreme left-wing political movements such as Black Lives Matter. The politicization of what was, in its origins, an apolitical law-enforcement function will have serious consequences for public safety and order.
According to the American Bar Association, “The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.” The California District Attorneys’ Association puts a finer point on the prosecutorial function: “The primary role of the District Attorney is to protect the community he or she is elected to serve. District Attorneys represent the public and endeavor to improve the public safety by prosecuting those who threaten the well-being of the community and its citizens by breaking the law.”
To judge them by their own words, progressive prosecutors don’t share this understanding of their role. They rarely discuss the importance of preserving public safety and prosecuting and jailing criminals. They do not campaign on safer streets or crime reduction. Indeed, they promise to end prosecution for whole classes of offenses that disproportionately affect minorities (without confronting why that may be), reducing the use of bail to detain pretrial defendants, recommending lighter sentences for convicted felons, encouraging diversion programs instead of prison, and prioritizing so-called restorative-justice schemes in place of traditional notions of retribution and incapacitation. All of this is in the service of a pet progressive project: ending “mass incarceration.” To this end, progressive prosecutors deploy an array of slogans about structural racism, disparate outcomes, and white supremacy. The relationship between this woke rhetoric and preventing an unreformed felon from robbing and raping again is never made clear.
The interesting question for political prognosticators (and eventually historians) is why progressive prosecutors get elected in the first place, particularly in cities where crime and disorder are steadily rising. Fundamentally, their platform is inimical to any sensible citizen’s self-interest: Who wants to be assaulted because the prosecutor is giving hardened criminals outpatient therapy instead of time in state prison? A district attorney who does not enforce the penal law as enacted leaves vulnerable citizens unprotected against the predations of those whom the law was ratified to discipline. In a representative democracy, we respect the will of the people, but in these instances the people’s wisdom leaves much to be desired. And whatever the people’s will, progressive prosecutors still take an oath—one in tension with their political agenda.
That solemn oath, taken not just by them but by their staffs as well, is to support and defend the Constitution of the United States (indeed, every attorney admitted to practice law must pledge fidelity to the Constitution) and the constitution of their respective states, as well as to execute and discharge faithfully the duties of their prosecutorial office. As Justice Robert Jackson wrote of the Bill of Rights, the oath is “beyond the reach of majorities” and not subject to “the vicissitudes of political controversy.” Hence, when newly minted Los Angeles County district attorney George Gascón announced that he would no longer prosecute criminals for resisting arrest, among other criminal offenses, it is no defense to say that Angelenos elected him to do just that.
University of Virginia law professor Richard Re explains the supremacy of the oath in democratic society:
In electing oath-bound officials, the people are choosing—today—to be governed by words from the past. And once an official takes the oath under conditions that allow for morally valid promising, she becomes morally ‘bound’ to a constitutional course of conduct. This means, for example, that an oath-bound official has a promissory obligation to enforce duly enacted statutes, even when . . . those statutes lack democratic or other inherent moral virtues.
Similarly, U.S. Circuit Judge Frank Easterbrook articulates the binding nature of his judicial oath, reasoning that he “took an oath to support and enforce both the laws and the Constitution. That is to say, I made a promise—a contract. . . . I agreed to limit the extent of my discretion. . . . The constraint is the promise to abide by the rules in place—yesterday’s rules, to be sure, but rules.”
Progressive prosecutors admit no such constraints—but there may be recourse to force them to do so.
The legal profession is governed by a canon of rules and ethics. The privilege of self-regulation requires reciprocal responsibilities. The American Bar Association’s Model Rules of Professional Conduct states: “Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. . . . The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct.”
Prosecutors enjoy immense discretion. In individual cases where the facts and equities compel an appropriate decision to decline prosecution, they are acting in the finest traditions of American justice when they do so. But progressive prosecutors engage in systemic oath-breaking when, as a matter of express and undifferentiated policy, they refuse to enforce the duly enacted criminal laws of their state. In these cases, there are good-faith grounds to charge them with “engag[ing] in conduct that is prejudicial to the administration of justice,” a kind of catch-all provision of the Model Rules of Professional Conduct.
An attorney’s violation of his oath is grounds for discipline, reprimand, and possibly removal. Indeed, it is well established that, as the representatives of a sovereign, prosecutors owe a higher responsibility to the public than do private attorneys. A willful and politically motivated breach of oath by an administrator of justice causes irreparable harm to the judicial system because it breeds contempt for the rule of law, emboldens the criminal element, and flouts prosecutorial obligations to the victims of crime. “Public confidence in the legal profession,” the Maryland Court of Appeals reasoned, “is a critical facet to the proper administration of justice.” The court also held that attorneys have an inherent duty to uphold the law, an obligation that transcends their personal interests.
Progressive prosecutors pervert what Manhattan district attorney Cyrus Vance has called “the primary role of the district attorney,” which is “ensuring the safety of the public, in their homes, on the streets, and in their daily lives.” This new species of prosecutor elevates its ideological obsessions and political and electoral interests above the primary function of neutral, fair, and zealous enforcement of the criminal law—the purpose of which is to preserve social order, stability, and public safety; to protect people from victimization and, where it cannot, to ensure that victims receive justice; and to deter and punish those who violate its prohibitions.
Challenging progressive prosecutors under the Model Rules of Professional Conduct is admittedly a long shot, given the conservatism (not in a political sense) of the legal profession and its uncritical deference to prosecutorial discretion. Nevertheless, it’s a campaign worth pursuing. The injection of progressive priors into law enforcement is having a deleterious effect on public safety—just look at New York City in 2020, with a 97 percent rise in shootings and a 45 percent jump in murders from the previous year. Even the New York Times is calling it the city’s “bloodiest year in nearly a decade.” Hoping voters will come to their senses is not a sufficient response, especially when some in our most vulnerable communities are crouching in corners of their homes to avoid indiscriminate gunfire.
Irving Kristol once offered an addendum to his famous quip that a neoconservative is “a liberal who has been mugged by reality.” A neoliberal, he said, “is a liberal who’s been mugged by reality but has refused to press charges.” Such is the stubbornness of blind adherence to ideology in the face of an uncooperative reality. The neoliberals were fortunate, though. They were only mugged metaphorically. The citizens represented by progressive prosecutors aren’t so lucky.
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