The Duties and Discretionary Power of District Attorneys

Jonathan wrote last month about reform-minded sheriffs in North Carolina and the actions they can and cannot take with respect to enforcement of federal immigration laws. Reform-minded prosecutors also have been in the news of late. Prosecutors in St. Louis and Kansas City announced last year their plans not to prosecute marijuana possession cases, subject to certain exceptions. Boston’s newly elected district attorney, Rachel Rollins, campaigned on a promise to decline to prosecute fifteen enumerated charges, including shoplifting, larceny under $250, trespassing, and stand-alone resisting arrest charges, absent exceptional circumstances. Closer to home, new Durham district attorney Satana Deberry has said that she does not want her office to prosecute misdemeanors or low-level felonies that originate in schools. The national discussion about these and other suggested reforms has included debate about the extent of district attorneys’ discretion to determine which cases will be prosecuted in their districts. Just what are the duties of a district attorney in North Carolina? And how much discretion may a district attorney exercise in carrying out those duties?

Constitutional duties. Article IV of the North Carolina Constitution, which sets forth the judicial power of the State, addresses the responsibilities of district attorneys. Section 18 requires the district attorney to “advise the officers of justice in his district,” and makes the district attorney “responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district.” In addition, the Constitution requires a district attorney to “perform such duties related to appeals therefrom as the Attorney General may require, and [to] perform such other duties as the General Assembly may prescribe.” It requires that criminal actions in district court “be prosecuted in such manner as the General Assembly may prescribe by general law uniformly applicable in every local court district of the State.”

Statutory responsibilities. G.S. 7A-61 requires the district attorney to do the following:

• prepare the trial dockets;
• prosecute in a timely manner all criminal actions and infractions requiring prosecution in the superior and district courts of the districtattorney’s prosecutorial district;
• advise the officers of justice in the districtattorney’s district;
• represent the State in juvenile cases in the superior and district courts in which the juvenile is represented by an attorney;
• provide to the Attorney General any case files, records and additional information necessary for the Attorney General to conduct appeals to the Appellate Division for cases from the districtattorney’s prosecutorial district; and
• devote his or her full time to the duties of his office and not engage in the private practice of law.

Discretion to select cases to prosecute. Until recently, district-attorney discretion was most often questioned by criminal defendants who complained they were prosecuted for behavior that, albeit criminal, did not typically result in criminal prosecution. To establish that this sort of selective prosecution violates the constitution’s guarantee of equal protection, a defendant must show that the prosecutor selected the defendant for prosecution based on an impermissible standard such as race, religion, or another arbitrary classification. See Oyler v. Boles, 368 U.S. 448 (1962); State v. Spicer, 299 N.C. 309 (1980); State v. Blyther, 175 N.C. App. 226 (2005). Absent an improper motive, the deliberate exercise of discretion in determining which cases to prosecute does not run afoul of the constitution. Spicer, 299 N.C. at 313; State v. Rudolph, 39 N.C. App. 293, 298-99 (1979)). Thus, North Carolina’s appellate courts have rejected selective prosecution claims premised on a district attorney’s decision to:

• prosecute a particular defendant over the prosecuting witnesses’ objections when charges normally were dismissed at the prosecuting witnesses’ request (State v. Spicer, 299 N.C. 309 (1980));
• seek indictments against all persons eligible for habitual felon status when district attorneys in other districts did not charge all eligible defendants as habitual felons (State v. Parks, 146 N.C. App. 568 (2001)); and
• vigorously prosecute so-called career criminals by concentrating resources on such cases, pursuing tough plea bargaining policies, advocating more restricted pretrial release, and arguing for more severe punishments (State v. Rudolph, 39 N.C. App. 293 (1979)).

The North Carolina Court of Appeals has explained that prosecutorial discretion is necessary to weigh “such factors as the likelihood of successful prosecution, the social value of obtaining a conviction as against the time and expense to the state, and the prosecutor’s own sense of justice in the particular case.” State v. Rogers, 68 N.C. App. 358, 368 (1984).

Discretion to select cases not to prosecute. Recent inquiries into the scope of a prosecutor’s discretion have framed the issue differently. Instead of considering whether a prosecutor may decide which defendants to prosecute, questions have been raised about the scope of a district attorney’s discretion to decide when criminal charges should not be pursued.

To some extent, such inquiries are easily answered. The selective prosecution cases cited above implicitly validate a prosecutors’ decision not to pursue charges against some individuals while pursuing them against others. As the court of appeals noted in Rogers, society benefits from a prosecutors’ weighing of case specific factors including the social value of obtaining a conviction, the time and expense to the State, and the prosecutor’s own sense of justice.

What about categorical rules? Selective prosecution cases do not, however, address the propriety of a district attorney’s decision not to prosecute any cases involving a particular crime.

Suppose, for example, that a district attorney announces plans to no longer prosecute cases involving possession of marijuana of one-half ounce or less or possession of marijuana drug paraphernalia. Or suppose a district attorney decides not to prosecute any concealed carry permit holder for carrying a weapon on private premises where a notice is posted prohibiting the carrying of a concealed weapon.  Would either such policy be permissible? Would the district attorney’s adoption of such a policy comport with her duty to “prosecute in a timely manner all criminal actions and infractions requiring prosecution in the superior and district courts”? I think so, given that the district attorney has discretion to determine which cases require prosecution. Implementation of such a policy would accord with prosecutors’ routine reconsideration of initial charging decisions made by law enforcement officers and magistrates. Whether adoption of such a policy would violate the separation of powers between the legislative and judicial or executive branches is a bit harder to answer.

Separation of powers. UNC-Chapel Hill School of Law Professor Carissa Byrne Hessick argues here that a categorical approach to non-prosecution does not run afoul of separation of powers principles and that such office-wide policies are preferable to leaving such decisions to line prosecutors. Carissa Byrne Hessick, Elected Prosecutors and Non-Prosecution Policies, PrawfsBlawg (September 8, 2018).

Hessick notes that “[l]egislatures write overly broad laws knowing that prosecutors will not prosecute all behavior that falls within the statutory text” and that “prosecutors are free to decide what conduct to treat as legal and what to treat as permissible.” She reasons that “[t]he sheer number of crimes also delegates questions about the scope of criminal law to prosecutors” as “[r]esource constraints make it impossible for prosecutors to bring charges against everyone who commits a crime.”

Fordham University School of Law Professor John Pfaff likewise argues that such categorical policies are permissible. John Pfaff, Boston’s New D.A. Pushes Back Against Prosecutors’ ‘Punishment-Centric’ Point of View, The Appeal (November 14, 2018). Pfaff writes that “a separation of powers argument that ignores the separation from power that defines so much of our criminal justice system is flawed from the start.” He characterizes categorical non-prosecution policies as “[p]rosecutorial ‘vetoes’ of crimes” that give historically underrepresented and disenfranchised communities “more power to choose how to police themselves.” The “‘prosecutorial veto,’” Pfaff argues, gives “those closest to law enforcement’s impact a greater voice in how that enforcement is deployed.”

But not everyone agrees. In the context of federal executive authority, UC Hastings College of the Law Professor Zachary Price has argued that presidential nonenforcement authority does not authorize policy-based nonenforcement of federal laws for entire categories of offenders. Zachary Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671 (2014). Price writes that “[i]n light of the constitutional principle of legislative supremacy in lawmaking, and the associated presumption against executive suspending and dispensing powers, executive officials should not understand Congress’s de facto delegation of broad nonenforcement power as a license to engage in unrestrained policymaking through selective enforcement.” While Price recognizes that “priority setting in enforcement is inevitable,” he reasons that this does not confer upon executive officials “an unrestrained authority to adjust the law on the ground to match their preferences as to what the law on the books ideally should be.”

The upshot. A North Carolina district attorney’s duties are generally defined by the state constitution and statutes. Case law makes it clear that district attorneys may exercise a great deal of discretion in carrying out their duties, but the outer limits of their discretion are not clearly defined. Newly framed questions posed in a landscape of shifting public sentiments and district attorney philosophies may bring the parameters of that discretion into sharper focus in the years to come.