Observation of the Day: Prosecutorial Discretion At The Lowest and Highest Levels

Here in Boston we were reluctant hosts to a ridiculous straight pride parade, and the somewhat less ridiculous but surely inevitable counterprotests. As we have seen in several other cities, the counterprotesters scuffled with the police, and some were arrested for crimes such as disorderly conduct or resisting arrest.

Here’s where things go off the rails. The new district attorney for Suffolk County, Rachael Rollins, one of a cohort of so-called “progressive prosecutors” elected around the country, has sought to drop the charges against counterprotesters accused of nonviolent crimes. Maybe this was a good decision, maybe it was a bad decision. But the decision not to proceed with a prosecution (to “enter a nolle prosequi”) is, in Massachusetts at least, committed absolutely to the prosecutor’s discretion. Sure, there are caveats, maybe for really outrageous cases, and in this case it seems that the DA didn’t want to dismiss the charges outright but wanted to dismiss them only after getting the defendants’ agreement to do some community service work; maybe that matters. But fundamentally it is up to the prosecutor to decide whether or not to pursue a case.

But Judge Richard Sinnott of the Boston Municipal Court was having none of it. The judge, “as members of the police union looked on,” refused to dismiss the charges against most of the counterprotesters. He drew sharp rebukes from the district attorney and from many others. Regardless of the procedural mechanism the DA used to try to get the charges dropped, it is extraordinary for a judge to refuse to dismiss a criminal charge at the government’s request.

Why is the judge’s action something to worry about? It’s important that the criminal justice system have some room for nonreviewable discretion—always in favor of the accused—to mitigate the harshness of the law. That’s why we have executive pardons, that’s why juries sometimes go off the reservation and acquit when they ought to convict or refuse to indict when there is probable cause, and that’s one of the reasons why prosecutors have the power to drop cases that in their judgment shouldn’t be brought.

Now from the plebian halls of the Boston Municipal Court to the very patrician halls of the International Criminal Court, which has again ordered the prosecutor to reconsider her refusal to open a formal investigation into the Gaza flotilla matter. If you have read between the lines of my posts on the FSIA and the Gaza flotilla cases, you have a sense of my views. In a non-technical sense—I am not a public international lawyer or an expert in human rights law or the law of war—it makes a mockery of the law to say that provocateurs who went looking for trouble and found it when they tried to run a blockade that even the UN determined was legal are victims of a war crime deserving of the attention of the ICC. The prosecutor has said she does not want to bring the case, but the court seems to be insisting, having now told the prosecutor twice that she was wrong to refuse to prosecute. There is, apparently, a very limited safety valve, very little room for anyone to make a prudential judgment that certain charges should not be pursued.

Now maybe you are thinking, “good, unrestrained discretion is never okay.” Maybe you have an imperial view of the law. That’s fine, but ordinarily someone with a view like that can point to the democratic legitimacy of the law, which is weaker in the context of international law than in just about any other context. And so if the flotilla itself made a mockery of the law, the court’s decision to try to force the prosecutor to prosecute seems to me to compound the problem.

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