Bankers, Immigrants, Darren Wilson and the Injustices of Prosecutorial Discretion

One of the more obscure but important issues in this country’s law enforcement policies has gradually but unavoidably grabbed our attention of late: the practice of prosecutors exercising broad discretion in which laws to enforce with criminal sanctions.

The Republican Party is in full and angry rebellion against the president’s efforts to reduce prosecutorial discretion in the enforcement of immigration laws. They are divided between those who want the indeterminate threat of random, arbitrary power to serve as a spur to “self-deportation” (not to mention passive acceptance of bad working conditions) and those who at least say they want to deport all eleven million undocumented people. But their practical common position is to insist on systemic inconsistency in law enforcement behavior, with all the guaranteed injustices that involves.

In Missouri, we have just witnessed one of the more bizarre and public exercises of prosecutorial discretion, as a district attorney has simultaneously abdicated his responsibilities to a grand jury, but then guided that grand jury through a secret, shadow trial with a largely predetermined outcome.

All of this is happening against the backdrop of one of the largest and most controversial programs of deliberate non-prosecution in U.S. history: the decision not to pursue criminal sanctions against those in the financial sector who not only violated various laws but wrecked much of the economy and damaged the lives of many millions of people.

In the latest issue of the Washington Monthly, Bailey Miller reviews Brandon Garret’s book on this phenomenon, with the predictable but accurate title Too Big to Jail. The book casts a harsh spotlight on the decisions made over two administrations to give a pass to corporate criminals, rationalized in part as a way to encourage “cooperation” with real or imagined reforms, and in part by the collateral damage anticipated if bankers started going to jail.

The real turning point for the enshrined policy of corporate leniency came after the implosion of the accounting firm Arthur Andersen. Thousands of innocent workers lost their jobs for the sins of a few who helped Enron cook its books. In the aftermath of that mess, President George W. Bush created a new task force to study corporate fraud, out of which emerged the strategy of delaying prosecution on the promise of reform—a sort of carrot-based approach, replacing the stick. “By 2003, the overriding goal of corporate prosecutions was to try to rehabilitate a firm’s culture, not to punish,” Garrett writes.

Notably, the strategy was based on a 1930s Brooklyn program that offered some young offenders leniency on the theory that jail time did more harm than good and the criminal system should focus on the most serious offenders. “The new approach suggested that corporations were more like juveniles—not entirely innocent, but mainly in need of guidance,” Garrett adds.

The sad joke is that “young offenders” are a lot more likely to face the full wrath of the law than wealthy graduates of Ivy League schools handling billions of dollars of other people’s money–or law officers sworn to serve the cause of justice taking the law into their own hands. Some prosecutorial discretion is necessary, and some is simply useful. But the question of who benefits and suffers from it is a reflection of the privileges and prejudices too many Americans continue to deny. Don’t know about you, but I’d be thankful for more discussion of this issue across the many topics in which it seems to be arising.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.