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Where is the ABA on discretionary prosecution?

February 26, 2014

Advice from America’s highest placed attorney, Eric Holder to the state attorneys general – don’t enforce laws you disagree with, i.e. find objectionable. It would be interesting to know what the American Bar Association (ABA)thinks of that advice. In that body’s Rules of Professional Conduct, Section 8.4 – Misconduct  there appear to be specific admonitions against that practice:

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

Most state bar associations pattern their own rules closely after the ABA rules.

There are certainly state laws that conflict with existing Federal law, and in some instances the Constitution does allow state law to supersede Federal law. The task of sorting all that out appears to go to the attorney representing the overriding jurisdiction.

Prosecutors routinely refuse to prosecute cases when they feel they don’t have enough evidence to get a conviction. There is nothing to be gained by trying a defendant when you know that you can’t convict, and there is a lot to lose, given our double jeopardy laws, not to mention wasting money and time.

That is patently not the same thing as simply ignoring a state law. State attorneys general are not appointed or hired by the Federal government. They are essentially state employees, sometime elected and sometimes appointed by the governor.

Leaving the controversial laws regarding same-sex marriage or marijuana out of the mix, what would happen if your state attorney general decided to refuse to prosecute other state laws?

Let’s say the state has speed limits on all state highways that limit drivers to 55 mph. The Federal standard is 75 on the Federal freeways. Should the state AG refuse to prosecute cases because he personally wants to drive 75 on any highway, or instruct the state’s highway patrol officers not to ticket drivers going over 55, and then justify that decision by saying that the Feds do it?

When state law conflicts with Federal law, it is up to those two jurisdictions to enforce the laws over which they have control. If their two positions are so widely divergent that it creates a legal morass, then it is up to the various legislatures to change the laws, or for SCOTUS to strike them down.

Justice is supposed to be impartial, or adhere as closely to that standard as humanly possible. By tacitly instructing or implying that state employees, paid by state taxpayers, ignore laws passed by their state legislatures, AG Holder seems to be treading over the line, relevant to the ABA’s Rule 8.4(d) and (e).

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