Prosecutorial Discretion Under Fire: The Common Thread in the President’s Executive Action on Immigration and the Non-Indictment in the Michael Brown Case


When President Obama recently announced that he was taking action to permit over four million undocumented immigrants to remain in the United States for two years without fear of deportation, Republicans cried foul. They accused him of circumventing the legislative process, calling him a would-be emperor or dictator.

Then, a week later, when a grand jury in Ferguson, Missouri failed to indict police officer Darren Wilson for killing unarmed African American teenager Michael Brown, many Americans also cried foul. They argued that prosecutor Bob McCulloch had deliberately tanked the case.

No doubt some people are upset about both the Obama immigration policy and the fact that no indictment was returned against Wilson. But in our partisan age, the people most dismayed about the Obama policy tend to defend the non-indictment in the Brown case—and vice-versa.

Yet both decisions ultimately rest on the same principle: prosecutorial discretion. Whether that principle suffices to justify either decision is unclear. Our legal system could not function without prosecutorial discretion, but as both the Obama immigration policy and the non-indictment of Wilson illustrate, its legitimate limits are hard to define.

The Immigration Policy Justification

President Obama and his allies sometimes talk about his approach to immigration enforcement in ways that feed the charges of illegality. Using phrases like “we can’t wait,” they suggest that the president has some freestanding power to change the law by executive order whenever Congress frustrates his legislative agenda. But of course the president has no such power. If President Obama really were acting as his political rhetoric suggests, his Republican critics would be right.

However, the actual legal justification behind the president’s immigration policy is considerably more modest. In a memorandum from the Office of Legal Counsel (OLC), the Justice Department considered three proposed measures: (1) prioritizing deportation of undocumented immigrants who pose a threat to national security, public safety, or border security; (2) deferring action with respect to (i.e., not deporting) undocumented parents of U.S. citizens and permanent residents; and (3) deferring action on parents of so-called “dreamers” who were already eligible for deferred action under a program begun in 2012. The memo concludes that the first two measures would be legal but the third would not, and so only the first two prongs of the policy made it into the president’s plan as announced.

The OLC memo rests the legality of the immigration policy on the principle of prosecutorial discretion. There are over 11 million undocumented immigrants present in the United States, but Congress has only appropriated resources sufficient to deport roughly 400,000 of them, the memo notes, so it is just common sense for the executive branch to prioritize deportation of those who pose a threat.

Seen through the lens of prosecutorial discretion, the president’s immigration policy simply sets priorities, in much the same way that state troopers patrolling a highway with a 65 mph speed limit might focus their attention on cars going faster than 75 mph. Just as we would not say that motorists driving between 66 and 75 mph are given “amnesty” by such a policy or that the state troopers have “rewritten the law,” so, the OLC memo contends, there is nothing unusual about President Obama’s immigration policy.

The Grand Jury Non-Indictment

There is no indication that prosecutor McCulloch affirmatively misled the grand jury considering whether to indict Wilson, so why do critics charge him with dereliction of duty?

The answer is that McCulloch approached the Wilson case oddly. In an ordinary case, a prosecutor presents the grand jury with evidence tending to show the target’s guilt. If there are weaknesses or holes in the case, they do not typically surface until the case goes to trial, when a defense attorney can vigorously challenge the prosecutor’s evidence and present evidence of his own. A grand jury proceeding typically lasts days or even hours. But over the course of months, McCulloch laid out all of the evidence in the Wilson case, and even characterized it for the grand jury in a skeptical way that seemed more appropriate for a defense attorney. The gigantic record of the grand jury proceedings suggests that McCulloch was trying to have it both ways: He wanted to be able to say that he tried to get an indictment even as he acted in a manner that was highly uncharacteristic of a prosecutor seeking an indictment.

Is there any justification for McCulloch’s approach? Perhaps, but it is not consistent with his double game. The best that might be said for McCulloch is that a prosecutor is permitted—indeed, in an ordinary case we might even say required—to exercise independent judgment about whether to seek an indictment. Even if there is probable cause to believe that a suspect is guilty, and thus sufficient evidence to obtain a grand jury indictment, there may be good reasons for a prosecutor to exercise his discretion not to pursue the prosecution.

In some cases the evidence may be strong enough for probable cause but too weak for a conviction based on proof beyond a reasonable doubt. In other cases, the offense may be a minor violation of a law that is routinely violated in more serious ways. In still other cases, there may be extenuating circumstances that lead the prosecutor to conclude that while the suspect is technically guilty, justice would be ill served by a prosecution or conviction.

To be clear, I am not saying that any of the foregoing reasons actually justified McCulloch’s apparent decision not to vigorously pursue an indictment of Wilson. But in general, these and other considerations are routinely—and appropriately—the basis for the exercise of prosecutorial discretion not to indict.

Prosecutorial Discretion and Its Side Effects

Our legal system could not function without the exercise of prosecutorial discretion. As then-Attorney General (and later-Supreme Court Justice) Robert Jackson explained in a famous 1940 speech, there are simply too many laws and too many violations of those laws for prosecutors not to exercise discretion. “What every prosecutor is practically required to do,” Jackson said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”

Jackson worried that as a consequence, prosecutors would exercise their discretion unfairly, but unfairness can come from different directions. Unguided discretion can lead to arbitrary enforcement or worse, biased enforcement. That is why Jackson thought that “some measure of centralized control is necessary” to constrain prosecutorial discretion.

The Ferguson case is illustrative. Many critics charge that McCulloch, who had both personal and professional reasons to pursue officer Wilson with less than complete zeal, should have stepped aside to permit a special prosecutor to bring the case.

But special prosecutors have their own difficulties. As Justice Scalia explained in what proved to be a prescient dissent in the 1988 case of Morrison v. Olson, because special prosecutors do not face the resource constraints that limit regular prosecutors, they lack a sense of proportion. Justice Scalia asked rhetorically: “Does this not invite what Justice Jackson described as ‘picking the man and then searching the law books, or putting investigators to work, to pin some offense on him’?”

Suppose, however, that discretion is largely removed from regular prosecutors and special prosecutors through the use of detailed enforcement policy guidelines adopted by the central administration. Now a new difficulty arises: Those guidelines will look suspiciously like changes in the law itself, as the critics charge about the Obama immigration policy.

To be sure, the OLC memo leaves some enforcement discretion to be exercised in the application of the guidelines to specific cases. And it offers criteria for the appropriate exercise of the policy as a whole—most significantly, the requirement that the executive’s enforcement priorities must be consistent with the priorities set by the legislature. But it is hardly clear that these criteria answer the charge of the Administration’s critics, or that a future Republican administration will be unable to claim that the OLC criteria are satisfied by its deprioritization of enforcement of, say, the Affordable Care Act.

The point is not that critics of the Obama Administration’s immigration policy or of the non-indictment in the Michael Brown shooting are right or wrong. My point instead is that the invocation of prosecutorial discretion does not provide anything like a full answer to the critics. Prosecutorial discretion is indeed a necessary feature of our government but it is best understood as a necessary evil. To say that the government has exercised prosecutorial discretion is to begin the discussion, not to end it.

One response to “Prosecutorial Discretion Under Fire: The Common Thread in the President’s Executive Action on Immigration and the Non-Indictment in the Michael Brown Case

  1. John says:

    Interesting Journalistic discretion not to actually defend or attack the discretion applied by the politicians in some sense to satisfy a political want or outcome.