Deciding Who Gets Prosecuted Is Trickier Than You Think

…There have always been arguments about which cases prosecutors decide to charge, and why. That tension has become particularly acute in recent years…

Laws are written broadly to account for the worst circumstances. They’re not meant to be applied without fail, except for the most serious crimes such as rape and murder. The average person likely commits multiple misdemeanors or even felonies each day. Think about what a terrible idea it would be for us all to have little AI drone robots constantly following us around and zapping us for each little infraction. We all hope that the cop who pulls us over will give us a warning rather than a ticket.

There was once a case where two women were fighting over an item of clothing during a Black Friday sale. One injured her finger. Under the plain letter of the law in Colorado, the woman grabbing the item committed robbery and the other woman’s injury would literally be an aggravating factor. “Under the statute, it’s robbery,” says Lisel Petis, a former prosecutor at the R Street Institute. “It’s harassment at best. Just two people being dumb. If a prosecutor is required to charge every single case because of the facts of the crime, we’re going to see some awful cases…”

When local officials state bluntly that they won’t enforce state laws, isn’t that a form of nullification? “When you’re seeing blanket dismissals of crimes, that does nullify a law,” Petis says. “It feels less like using discretion and more like making a political statement…”