Sunday, November 23, 2014

Prosecutorial Discretion Through the Looking Glass

For someone like me—a former prosecutor who now teaches and writes about criminal procedure—there is a Through the Looking Glass quality to much of the furor over President Obama’s new immigration enforcement policies.  For several decades concerns have been raised that American prosecutors exercise lawless authority, in large part because of their nearly unbridled discretion over the filing of criminal charges.  Prosecutors have resisted, fiercely and successfully, virtually every effort to limit the range of their discretion or to require them to explain, to defend, or to justify their charging decisions.  Their resistance has been successful in part because the courts have treated enforcement decisions not just as unamenable to judicial review but as a matter firmly committed under our scheme of government to the Executive Branch.  It is this extreme deference by the courts to prosecutorial discretion—deference that strikes many scholars of criminal procedure as excessive—that has served as the primary template for broad judicial deference to other forms of executive enforcement discretion, including decisions about deportation.

From that standpoint, there are two things about the immigration enforcement policies that are profoundly unremarkable.  The first is that the Executive Branch is prioritizing which undocumented immigrants it will seek to deport.  It has to do that, since there are about 11 million undocumented immigrants in the country and Congress has provided funding that will allow somewhere around only 400,000 removal actions each year.  The second unremarkable thing is the particular enforcement priorities the Administration has chosen, none of which seem to have drawn any significant criticism.  Those priorities do not include, needless to say, immigrants without criminal records who are the parents of U.S. citizens or lawful permanent residents and who have lived in this country continuously since at least 2009.

What has drawn criticism, of course, is the announcement of a policynot to deport most people in that group, at least not for the time being, coupled with a decision to give them work permits.  I don’t feel particularly qualified to opine about the legality of the work permits, except to note—as has the Administration—that there is a longstanding practice of giving work permits to immigrants granted “deferred action,” a practice to which Congress and the courts seem, at a minimum, to have acquiesced.  But to someone who thinks more about prosecutors than about immigration agents, it’s weird to see to see the President criticized as “lawless” for announcing a formal policy rather than continuing to forego deportation on a entirely ad hoc, decentralized, case-by-case basis, as everyone seems to agree he could have done.  It’s in large part the ad hoc, decentralized nature of prosecutorial discretion that has seemed to many people, for quite a long time, to allow prosecutorial power to be exercised so arbitrarily.

What makes the talk of lawlessness in connection with the new immigration policies especially bizarre is that (a) the President took the unusual step of re