Abstract

Bijal Shah, Administrative Discretion in Criminal and Immigration Enforcement, 103 Texas Law Review Online 42 (2024) (73 Footnotes) (Full Document)

Separation-of-powers scholars and the Supreme Court are obsessed with administrative discretion these days. Essentially, discretion is “the power to choose between two or more courses of action, each of which is thought of as permissible.” Agencies exercise discretion when they engage in behavior that is not specified by or falls outside the requirements of the legislation that empowers them to act. Academics and lawyers concerned about the scope of administrative discretion from a constitutional perspective, including much of today's Court, seek to limit administrative capacity to implement statutes flexibly and responsively. Others are convinced of bureaucrats' essential regulatory competence, and of the impossibility of defining legislative standards “to the extent that the exercise of judgment and discretion by administrative agencies would no longer be desirable or necessary,” which renders these scholars deeply committed to expansive administrative power to imp/lement the law. For some in this community, the internal (or administrative) separation of powers--whereby the public, civil servants, and political officials temper one another's potential for the excessive exercise of power--sufficiently balances the executive branch.

And yet, this debate glosses over the anxieties of those who observe the exercise of discretion outside the confines of administrative statutory interpretation that occurs while regulating. Law enforcement officials hold an immense amount of discretionary authority. Furthermore, bureaucrats' individualized exercise of enforcement power can have a systemic impact arguably, perhaps even more so than the use of discretion that undergirds administrative statutory interpretation, which is by nature less frequent and requires consensus among the administrators involved in rulemaking.

Just about all outcomes of the enforcement of law, whether beneficial or concerning, are to some extent the result of administrative discretion. In her insightful new article, Misdemeanor Declination: A Theory of Internal Separation of Powers, Professor Alexandra Natapoff expertly illustrates that this is as true in criminal administration as anywhere else. In particular, Natapoff identifies and evaluates an important moment of discretion in the administration of criminal law: the declination decision--that is, a prosecutor's “all-important decision whether to decline or file formal criminal charges after police have made an arrest.” Notably, her concerns lie not with agencies' potential aggrandizement of authority as a result of engaging in statutory interpretation, but with the exercise of enforcement discretion and its potential impact on the “excesses of the domestic criminal Leviathan.”

Natapoff describes the act of discretion inherent in the declination decision as of “institutional and constitutional” significance. “[F]ar from a mere formalism,” the decision to prosecute “is the starting point of our whole system of adversary criminal justice.” Per Natapoff's thoughtful conceptualization, weak rates of declination amount to an abdication of the prosecutorial role and even a failure of due process. At the very least, a decision to pursue a misdemeanor case trigger costs for “defendants, public defenders, prosecutors, jails, courts, and taxpayers” that might have otherwise been avoided. Moreover, low declination may indicate that prosecutors are failing to make choices that could mitigate the extent to which criminalization is motivated by bias, flows from shoddy policing, or results in disparate punishment for minorities.

Natapoff does not clarify when low declination rates are necessarily the result of a failure to screen, or whether they may, in fact, indicate a proactive decision to prosecute. But to the extent low declination is indeed an abdication, it might be understood as “an absence of prosecutorial gatekeeping at the outset of the adversarial process,” the result of which is that “police in effect get to decide who will become a defendant simply by arresting them.” Given the importance of the declination decision to limiting the excesses of policing, Natapoff characterizes it as an intrabranch checking measure that “offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people.” In this way, she successfully applies the internal separation of powers framework, which originated in the administrative law and structural constitutionalism scholarship, to the criminal administration and policing context.

This invited Response both appreciates Natapoff's enthusiasm for enhancing prosecutorial discretion in criminal administration and maintains a bit of skepticism regarding its efficacy. More specifically, it draws on the immigration context in order to explore the possibilities and hazards of internal administrative checks for constraining excessive policing in both the criminal and immigration environments. First, this Response suggests that directives ensuring uniformity are important to ensuring high-quality prosecutorial discretion. Second, it argues that agency culture is an important player in the internal separation of powers that reduces prosecutors' overarching potential to constrain law enforcement. Third, it observes that the declination decision can serve a gatekeeping function that limits desirable access to adjudication, particularly for communities with fewer resources and reduced participation in democratic process. Finally, this Response notes the possibilities of institutional design and public oversight for improving law enforcement accountability.

[. . .]

Ultimately, Natapoff's article is of a piece with the literature advocating for prosecutorial discretion to check aggression in immigration enforcement. And even more, her work takes advantage of the fact that progressive objectives are perhaps more acceptable in discussions of criminal procedure in the wake of the racial reckoning of the past five years, while immigration scholars are still expected to emphasize other justifications for their proposed reforms. Nonetheless, like in immigration, the promise of administrative self-constraint in the criminal legal space may be more difficult to realize than Natapoff suggests, particularly given both the institutional values that shape the criminal and immigration bureaucracies and the vulnerability of the populations subject to prosecution and punishment.

Professor of Law and Provost Faculty Fellow, Boston College Law School.