Is there really any way to force a prosecutor to go forward with a case? Prosecutorial discretion basically means (for those of you who don’t know law) that the prosecutor can do whatever he wants with a case. Usually this is a good thing. It means people don’t have to be prosecuted for trivial reasons, or for laws that are rarely enforced anyways. But historically, this means, for example, a racist prosecutor doesn’t have to prosecute the lynching of an African American.
Anyways, it rarely happens anymore with African Americans. Actually, as I write this, I am thinking more of gay people being the victims.
How do you force a prosecutor to prosecute? And is there any way?
P.S. I am putting this in GD because, although this calls for a factual answer, once the factual answer is given, I hope this can become a moral debate about the system.
For a start, lynching is murder and I’m willing to bet there is no straightforward prosecutorial discretion on that. So I think that is not a good example.
Let’s be clear: there is the crime (arson, assault or murder, for example) and then there is the motive (hatred against a protected class, or some other motive). If the crime is a felony, it will be prosecuted if possible. The “hate crime” aspect may or may not be prosecuted, based on a variety of factors.
My sense has always been that the ability to add a more serious penalty for a crime if it can be proved to be a hate crime is there so that crimes with relatively small penalties (even felony assault may not bring much jail time to a first-time convict) can result in more severe penalties, for more of a deterrent effect (there is of course room for side debates on whether this works as a deterrent, or whether increasing the penalty based on motivation makes for good law).
This might be especially useful if the crime part is just a misdemeanor but if it were a hate crime it would be elevated to a felony.
That is not to say, of course, that it can’t happen. It’s worth noting, however, that even in the Jim Crow South crimes against blacks were frequently prosecuted. It was the refusal of juries to convict rather than the refusal of prosecutors to bring charges that primarily denied black victims justice.
This law review piece does a pretty good job of explaining the constitutional underpinnings and purpose of the doctrine.
As a practical matter, for a particular case, you can’t. Elected prosecutors (district attorneys, county attorneys who prosecute) are, however, accountable to the people, and if you don’t like the job they’re doing, vote them out of office.
For individual cases, though, prosecutorial discretion is very broad, as it should be.