It’s almost as though we are conducting a national seminar in the role of prosecutors in the criminal justice system, isn’t it? I mean, seriously, the two dominant domestic news stories this week have revolved around the question of whether Missouri prosecutors will indict Darren Wilson for killing Michael Brown, and the question of why a Texas prosecutor has already indicted Gov. Rick Perry on a relatively vague abuse of power/corruption charge. And the meta-story hanging over this election year is whether and to what extent the president will change enforcement of the immigration laws in order to guide and limit prosecutorial discretion.
At the New Yorker, Jeffrey Toobin explains that once the decision to prosecute or not to prosecute is made, the deal has often really and truly gone down. That’s why he thinks Rick Perry could be in big trouble:
Prosecutors have wide, almost unlimited, latitude to decide which cases to bring. The reason is obvious: there is simply no way that the government could prosecute every violation of law it sees. Think about tax evasion, marijuana use, speeding, jay-walking—we’d live in a police state if the government went after every one of these cases. (Indeed, virtually all plea bargaining, which is an ubiquitous practice, amounts to an exercise of prosecutorial discretion.) As a result, courts give prosecutors virtual carte blanche to bring some cases and ignore others. But, once they do bring them, courts respond to the argument that “everyone does it” more or less the same way that your mother did. It’s no excuse. So if Perry’s behavior fits within the technical definition of the two statutes under which he’s charged, which it well might, he’s probably out of luck.
It’s also a bit disingenuous for a longtime statewide elected official and national celebrity to claim he or she is being “singled out” or “targeted” by a prosecutor. Nobody made Rick Perry run for governor all those times. And I know it might be tough, but it’s entirely possible to serve as governor of Texas without threatening and bribing other elected officials to quit their jobs. So as Toobin says, Perry could be out of luck, but it’s bad luck he’s made for himself.
