Did you know that crime goes down when you don’t prosecute criminals for breaking the law? Yep, that’s the whopper the rogue prosecutor movement and its divorced-from-reality cheerleaders want everyone to believe. And to double down on this claptrap, they claim that “data” and “science” back up this upside-down logic. That’s not true either, as we explain below.
One of the most pernicious aspects of the rogue prosecutor movement, which we have written about for over two years, is the refusal to prosecute all or most misdemeanors, to include drug possession, driving offenses, disturbing the peace, shoplifting, larceny, fare jumping, domestic violence, and more.
Let’s apply a little parental logic here. Imagine this: You’re a parent. You have kids. You tell your little angels that for one week, you are not going to enforce any rules in your house. Would they voluntarily comply with the rules or would they binge watch TV, eat ice cream all day, play with their phones day and night, go to bed way too late, and engage in other mischief? You know the answer.
But this rogue prosecutor crowd wants us to suspend our common sense and knowledge of the human condition and pretend that if you tell adults that they can commit dozens of crimes—including crimes that enrich them—that they will not commit those crimes.
Set aside the fact that as elected district attorneys who serve in the executive branch of local government, they have no authority whatsoever to refuse to prosecute entire categories of crime. Their job is to enforce the law as written and hold criminals accountable. They have no authority to ignore the law; by doing so, they usurp the constitutional role of elected state legislators who make the laws on behalf of the people.
Before explaining why failing to hold people to account for their misdemeanor behavior actually contributes to more crime, we thought it best to give you a taste of what not prosecuting misdemeanors means in practice.
Need toiletries or food? Just walk into any drug store in San Francisco and take it—no questions asked, and no arrest or prosecution, as long your total haul is under $950. Be sure to thank Chesa Boudin, the rogue prosecutor of the City by the Bay.
Or if your thing is possessing illegal drugs to distribute them, go to Boston, where it’s illegal, but you won’t get prosecuted. Thank Rachael Rollins, the former district attorney and current U.S. attorney under President Joe Biden. Rollins listed 15 crimes you can commit in Boston with impunity on her website, including receiving stolen property, or maliciously destroying property, or breaking and entering when you’re cold, or resisting arrest by the police.
The police there sued her for not enforcing the law. Biden rewarded her by appointing her U.S. attorney of Massachusetts.
Don’t want to post any bail after you have committed more crimes? No worries, as you have lots of cities to choose from, including Los Angeles (home to the King of Rogue Prosecutors, George Gascon), Philadelphia, Baltimore, Chicago, St. Louis, and New York City (thanks to Alvin Bragg and the New York State Legislature, which eliminated bail for most crimes). Watch New York City’s former top cop talk about the effect of not requiring bail:
There are two studies that rogue prosecutors say “prove” that not prosecuting misdemeanors reduces, or contributes to the reduction of, crime. But when you read the studies, as we have, and understand them, which we do, the so-called proof disappears.
The first is a study by the National Bureau of Economic Research that examines the effect of declining to prosecute lower-level nonviolent offenses in Suffolk County, Massachusetts, and whether that hands-off approach leads to fewer future offenses by criminals. The study used data from Rollins’ office between 2004 and 2018 to “estimate the impact of nonprosecution of nonviolent misdemeanors on future criminal justice system contact.”
This study does not actually prove what the rogue prosecutors claim it proves. First, the data set preceded Rollins even taking office. In other words, it preceded her nullification of most misdemeanor crimes. Second, when you dig into the data, it applies mostly to first-time offenders—those who are most likely to change their behavior if given a chance to make amends for their crime. Third, the study defines the word “prosecution” in a constrained manner, such that a person arrested and then permitted to enter a diversion program is not deemed to have been “prosecuted” under their definition. Yet anyone with experience in the criminal justice system will tell you that the most viable candidates for diversion are first-time offenders who commit misdemeanors.
Moreover, while people who, as part of a plea agreement, enter into diversion programs may be able to get the charges dismissed if they successfully complete the program, that does not mean that they were not prosecuted. It just means that the prosecutor gave them a break by allowing them to enter a diversion program rather than forcing them to plead guilty or go to trial.
Finally, when we asked the authors of the study to give us the raw data so a statistician could independently evaluate the data set, the authors told us that the Boston district attorney’s office made them sign a nondisclosure agreement related to the data, and thus they could not give it to us. So much for transparency.
As Manhattan Institute expert Rafael Mangual explained at our second Heritage Foundation rogue prosecutor symposium last week, the studies just don’t say what the advocates say they do.
The second study that supposedly backs up the “data and science” mantra comes from Texas. It shows that offering a diversion program to certain first-time, nonviolent felony offenders provides a host of benefits, including lower future conviction rates, increased employment rates, and increased income rates.
Rogue prosecutors, though, obfuscate the critical differences between diversion and nonprosecution. As the study makes clear, with diversion, there are consequences if someone doesn’t complete the program—including the reinstatement of the prosecution and conviction.
The study says, “Deferred defendants are required to undergo community supervision,” and, “All individuals sentenced to community supervision may be subject to judge-ordered conditions, including community service, a short period of confinement in a county jail, or assignment to a substance abuse treatment facility.”
Crucially, the study makes clear, “One basic condition for all community supervision is that the defendant does not commit any new criminal offense.” If the defendant does, the prosecutor can file a motion to revoke the supervision.
The authors of the study also admit that one reason they may see lower convictions for future offenses is because prosecutors punish defendants for violating supervision. They say:
If a deferred defendant commits a new criminal offense while under community supervision, the prosecutor can file for a motion to revoke probation which may result in an incarceration sentence that overshadows any sanction from separately pursuing a conviction for the new criminal offense.
Bottom line: These studies do not provide the “data and science” to support the pro-criminal, anti-victim polices of many of these rogue prosecutors.
This piece originally appeared in The Daily Signal