by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The key to understanding the Machiavellian brilliance of the Progressive Prosecutor Project is this: As a matter of constitutional law, no legislature or court has the power to order a prosecutor to charge any crime against any person. In our system, prosecution is exclusively an executive call. Practically speaking, short of voting a rogue district attorney out of office, there is no remedy for abusive discretionary omissions—decisions not to prosecute. To be sure, if a prosecutor performs some affirmative illegal act while enforcing the law, there are legal remedies available—motions to suppress evidence, lawsuits against government, potentially even prosecution. But omissions are a different story. It is nigh impossible to force prosecutors to take enforcement action. Thus, a willful district attorney has enormous power to install non-prosecution as the default policy.
Realizing this, the left’s social-justice warriors have grasped that the control of prosecutorial power may be the most effective route to rapid societal transformation. It is transformation driven not by law, logic, or a half-century’s empirical data on offense behavior and policing methods, but by cultural Marxist narratives: the criminal-justice system and its law-enforcement agencies as a superstructure reifying America’s pervasive racism, xenophobia, and forcible oppression of The Other.
Equally important, prosecutorial power is attainable at the ballot box.