Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them

A prosecutor who announces that he will never enforce a law has found a faster way to repeal it than the one in Article I. There is no bill, no committee, no vote, no signature, and no pesky voters in the legislative district who might notice. There is a press release. Congratulations: one elected official has just done the work of two houses and a governor, and has not even had to find a quorum.

I want to take this seriously, because the argument over it is usually conducted at the level of slogans. One side says prosecutors have "discretion," as if that single word settled everything. The other side says prosecutors must "enforce the law," as if no prosecutor in American history had ever declined a case. Both are partly right. The question is where the line falls, and I think it can be drawn with some precision.

Terms

Prosecutorial discretion is the authority of a prosecutor to decide whether to charge, what to charge, whether to offer a plea, and whether to dismiss. It is old, it is necessary and it is legitimate.

Case-by-case judgment means deciding, on the facts of a particular matter, how to proceed: the strength of the evidence, the seriousness of the harm, the history of the accused, the interest of the victim, the available resources.

Categorical non-enforcement means announcing, in advance and across the board, that a class of offenses will not be prosecuted, whatever the facts of the individual case. It is a general rule, made by the prosecutor, that a duly enacted law shall not apply.

My thesis has two parts. One: case-by-case judgment is a power that every prosecutor has and must have. Two: categorical non-enforcement is a different thing in kind, because it is legislating, and a prosecutor is not a legislature. The first is a matter of conscience and competence. The second is a matter of constitutional structure.

The steelman: resources force priorities

Let me state the best argument for the other side first, as its defenders would put it.

No prosecutor's office can prosecute every violation of every law. The criminal code of any state is vast, and the number of technical offenses is enormous. Budgets are finite, courtrooms are finite, and attorneys have only so many hours. Every office must therefore choose, and choosing is what discretion means. Prosecutors have always declined minor cases, steered first-time offenders to diversion and put resources into violent crime. An office that publishes its priorities, the defenders say, is doing the public a favor by telling them in advance what to expect, rather than hiding its triage in thousands of private decisions. And if the voters dislike the priorities, the voters elected the prosecutor, so they can remove him.

That is a fair argument. Part of it I accept without reservation. Every office triages. An office that tells the public which cases it considers most serious is not violating anything. If a district attorney says, "With limited staff, we will put violent felonies first," that is management. If he says, "A case involving small amounts of a minor drug will usually be diverted to treatment, with exceptions for traffickers and for conduct that endangers others," that is a policy about how he will use judgment, and it still leaves room for judgment.

The line: judgment versus veto

Where the steelman fails is at the point where the announced policy stops describing how the prosecutor will weigh cases and starts declaring that no weighing will occur.

Here are three tests I would apply to any announced policy.

1. Does it leave room to prosecute? A policy that says "we generally decline X unless aggravating factors are present" preserves judgment. A policy that says "we will not prosecute X" is a veto.
2. Is it about priority or about legitimacy? "We lack the resources to pursue this class of cases this year" is a claim about priority. "We believe this law is unjust and will not enforce it" is a claim that the law should not exist. The second claim belongs to the legislature, the governor and the voters.
3. Would the policy survive if the prosecutor had unlimited resources? If the office would still refuse to enforce the law, then resources are not the reason, and the argument from scarcity does not apply.

The third test is the sharpest. Scarcity justifies choosing among cases. It does not justify refusing a whole category, because a category of offenses includes the worst instances along with the least. A blanket policy on, say, a class of theft offenses necessarily covers the repeat offender who commits the same crime twenty times as well as the teenager who shoplifts once. You cannot weigh a case you have promised not to look at.

What the law says, and does not say

The legal doctrine here is subtler than either side admits, and it is worth walking through.

The Constitution's structure is the starting point. Article II, Section 3 says that the President "shall take Care that the Laws be faithfully executed." That clause binds the federal executive, and states have their own constitutional provisions assigning enforcement to the executive branch and often to named local officers. The Founders separated the power to make law from the power to execute it, on the principle I discuss in the Federalist, because combining them in one set of hands is the definition of tyranny.

The Judiciary Act of 1789 created the office of United States attorney in each district, whose duty, in the language of the statute, was to prosecute offenses against the United States in his district. A prosecutor was understood from the beginning as an officer who carries out the law, not an officer who edits it. At the same time, the common law tradition of the nolle prosequi, the prosecutor's power to decline to proceed, was understood to be a feature of the office, not a defect.

Then comes the leading modern case, Heckler v. Chaney, 470 U.S. 821 (1985). A group of prisoners sentenced to death by lethal injection asked the Food and Drug Administration to take enforcement action against the use of certain drugs in executions, arguing that the drugs had not been approved for that use. The FDA refused. The Supreme Court, in an opinion by Justice Rehnquist, held that an agency's decision not to take enforcement action is presumptively unreviewable by the courts. The reasons: the decision involves a complicated balancing of factors, including whether a violation has occurred, whether resources are best spent on this matter, and whether the agency is likely to succeed. Those are matters within the agency's expertise, and a refusal to act does not exercise coercive power over anyone. The decision rests, the Court explained, on a tradition that the executive has broad discretion over enforcement and on the Take Care Clause.

That holding is often cited as if it closed the question. It does not, for two reasons. First, it addresses whether a court may review an individual enforcement decision, not whether a blanket policy is legitimate; the presumption of unreviewability is about who may second-guess the executive, not about whether the executive may do anything it likes. Second, the Court itself flagged a limit. In a footnote it noted that it was not deciding cases where an agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities. In other words, the very case that is cited for broad discretion acknowledged that there is a point where non-enforcement becomes abdication.

The Court has also held, in Town of Castle Rock v. Gonzales (2005), that a person has no constitutionally protected entitlement to the enforcement of a restraining order by the police. That, too, is often cited. But it makes a point that cuts against complacency: courts will generally not step in to compel enforcement. That means the check on abdication cannot be the judge. It has to be the voters, the governor, the legislature and the structure of state law. Which brings us to the states.

State law: the duties of district attorneys

Prosecutors in most of America are state and local officers, elected in the county, and the rules that govern them come from state constitutions and statutes. I cannot summarize all fifty, and I would be inventing if I tried. What I can say is that in many states the statutes describe the district attorney's duty in mandatory terms, to prosecute offenses committed in the county, and many states also give the governor or the attorney general some power over a local prosecutor who fails in that duty, whether by reassigning cases, supervising, or in some states removing the officer for neglect of duty or similar grounds. Look at your own state's constitution and statutes. The provisions are often a few lines long and they are the ground rules for the person you elect.

That is the answer to the defenders' point that voters can simply remove a prosecutor they dislike. They can, and they should, and that is the ordinary remedy. But the Founders did not rely on elections alone, which is why they built separation of powers, and states have built backstops. An election can be won by a few thousand votes in a low-turnout primary for an office whose duties most voters cannot describe, and a policy announced in January may do its damage before November.

The Florida case

The most prominent example of a state reaching for a backstop came in Florida. In August 2022, Governor Ron DeSantis suspended Andrew Warren, the elected state attorney for Hillsborough County, under the governor's suspension power in the Florida Constitution. The governor's order cited Warren's public statements, including a joint statement signed with prosecutors from other places pledging to refrain from prosecuting those who seek, provide or support abortions, and accusations about gender-transition care, which the order described as blanket policies. It said these amounted to neglect of duty. Warren called the statement a value statement, not a binding policy.

I want to be fair about the aftermath, because it shows how hard these lines are to draw in practice. Warren sued. In January 2023, a federal district judge, Robert Hinkle, ruled that the suspension violated the First Amendment, because the governor had considered Warren's protected speech, and that it also violated the Florida Constitution. The judge also found that the governor's accusation of a blanket policy was wrong, because Warren had exercised discretion case by case. But the judge held that a federal court could not order the governor to reinstate Warren under state law, so Warren was not restored to office by that ruling. In 2024 the Eleventh Circuit vacated the district court's decision and sent the case back for further proceedings.

What do I draw from this? Several things. First, whatever you think of the governor, the case shows that a state may use a constitutional power of suspension to police the line, and that the line is contested enough to produce a federal opinion. Second, the judge took the position that a public pledge to take a particular legal view is protected speech and not proof of a blanket policy, which is a reminder that the right way to handle this is by evidence of actual conduct, such as written office policies and what the office does with the cases that come in, not by punishing a prosecutor for what he says in a joint statement. Third, the incident shows that this issue is not abstract. An officer who announces categorical policies invites the other branches to respond.

An earlier Florida episode makes the same point from another angle. In 2017 the state attorney for Orange and Osceola Counties, Aramis Ayala, announced she would not seek the death penalty in any case, and the governor, Rick Scott, then reassigned her capital cases to another prosecutor. Ayala sued, and the Florida Supreme Court upheld the reassignment. That dispute turned on a blanket refusal to use a sentence the legislature had authorized, and the Florida Supreme Court, by a 5-2 vote, found that this gave the governor good and sufficient reason to reassign the cases. It was resolved by the state's own structure, the governor's power to reassign, not by a federal court.

The principle applies in both directions

An argument is only worth making if you would accept it against your own side, so here is the symmetry. The principle that no executive may repeal a law by announcing it will not enforce it applies to a prosecutor who refuses to enforce a gun statute I like as much as to one who refuses to enforce a drug statute I do not. It applies to a conservative district attorney who might announce he will not charge a category of offenses that his voters dislike. It applies to a federal administration of either party. The Take Care Clause does not have a party label.

That symmetry is what separates a principle from a tactic. If conservatives want the Constitution's structure to protect us from a progressive prosecutor, we must want it to protect others from a conservative one. The rule is that the legislature writes the law and the executive carries it out, and that disagreement with a statute is to be expressed through the legislature, the courts and the ballot box, not through a quiet decision to ignore it. I made a related point about structure in Qualified Immunity Explained, From the 1871 Klan Act to Today's Fights, which concerns another doctrine in which officials exercise power under law and ask how far the courts should police it.

How to tell a priority from a veto: a worked example

Here is a hypothetical, labelled as such. Suppose the legislature of a state makes it a crime to steal property worth more than a stated threshold, and a prosecutor announces two different policies in two different years.

In the first year, he states: "My office has limited resources, so we will give priority to repeat offenders and to thefts involving violence or organized rings. First-time offenders caught with small amounts will normally be offered diversion." That is a priority. It tells the public what to expect, and it leaves him free to prosecute any case he chooses.

In the second year, he states: "My office will not prosecute theft below twice the legal threshold, regardless of history." That is a veto of the statute for every offender who stays under the line, including the one who has done it a hundred times, and it effectively raises the legal threshold set by the legislature. The prosecutor has rewritten the law. Whether or not a voter likes the result, he has taken a power the office was never given. For one example in the real world of the dynamics that follow, see What California's Proposition 47 Changed and What Proposition 36 Undid, in which the voters themselves changed the threshold by ballot, which is the proper way.

This worked example also shows why transparency favors the first policy. The first policy keeps the prosecutor accountable for every decision. The second lets him say the decision was made in advance, by a policy, and no one is responsible for any individual result.

What a citizen can ask

A voter does not need a law degree to hold a prosecutor to this line. Ask for the office's written charging policies, and read them for words like "will not" and "never." Ask whether any exceptions exist and whether they are in writing. Ask what the office does with cases in the announced category: how many were referred, how many were charged, how many were declined and why. I give the full method in How to Read Your District Attorney's Record Before You Vote.

The case in brief

1. Prosecutorial discretion, meaning case-by-case judgment about charges, pleas and priorities, is legitimate and necessary, and every office practices it.
2. Announcing that a whole category of law will not be enforced is a different act: it replaces the legislature's judgment with the prosecutor's, which the structure of the Constitution and of state law does not allow.
3. Heckler v. Chaney (1985) protects individual enforcement decisions from judicial second-guessing but, in its own footnote, left room for policies so extreme that they amount to abdication of duty.
4. Because courts will rarely compel enforcement, the checks on blanket non-prosecution lie with voters, governors, legislatures and state law, as the 2022 Florida suspension and its aftermath show.
5. The principle must apply to every officeholder of every party, and the test is whether a policy leaves room for judgment or removes it.

What you can do: find your county prosecutor's written charging or declination policies, read them for absolute language, and bring one question about them to the next candidate forum.