# Hate Crimes and Prosecutorial Discretion. **URL:** \ **Category:** Great Debates\ **Created:** [March 6, 2013, 3:15pm UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193 "2013-03-06T15:15:09Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [March 6, 2013, 3:15pm UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193/1 "2013-03-06T15:15:09Z")
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. ---
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [March 6, 2013, 7:51pm UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193/2 "2013-03-06T19:51:39Z")
Disclaimer: I am not a lawyer. 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. Roddy ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 7, 2013, 3:20am UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193/3 "2013-03-07T03:20:49Z")
> [@Roderick\_Femm](#): > > Disclaimer: I am not a lawyer. > > 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. Your gut feeling is more or less correct. > [@](#): > > Of course, a prosecutor’s discretion is “subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204-2205, 60 L.Ed.2d 755 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694-695, 98 L.Ed. 884 (1954), is that **the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification,”** Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886). > > In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” Chemical Foundation, supra, at 14-15, 47 S.Ct., at 6. We explained in Wayte why courts are “properly hesitant to examine the decision whether to prosecute.” 470 U.S., at 608, 105 S.Ct., at 1531. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607, 105 S.Ct., at 1530. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.” Ibid. > > United States v. Armstrong, 517 U.S. 456, 464-65 (1996) 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](http://erepository.law.shu.edu/cgi/viewcontent.cgi?article=1027&context=circuit_review) does a pretty good job of explaining the constitutional underpinnings and purpose of the doctrine. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [March 7, 2013, 3:51pm UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193/4 "2013-03-07T15:51:58Z")
> [@Jim\_B](#): > > How do you force a prosecutor to prosecute? And is there any way? 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. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 7, 2013, 4:46pm UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193/5 "2013-03-07T16:46:40Z")
> [@Jim\_B](#): > > How do you force a prosecutor to prosecute? And is there any way? From memory, believe it or not: USSC “A private citizen lacks a cognizable interest in the prosecution or non prosecution of another”. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 7, 2013, 4:51pm UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193/6 "2013-03-07T16:51:07Z")
Oooh. So nearly perfect! > [@](#): > > Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. > > Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 7, 2013, 4:51pm UTC](https://boards.straightdope.com/t/hate-crimes-and-prosecutorial-discretion/652193/7 "2013-03-07T16:51:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Oooh. So nearly perfect! Hey, memory fades! 😉