The Failure to Prosecute People Who Committed Crimes is a Part of Our Criminal Justice System

A thread from a UNC law professor goes over that. The thread started in response to a headline that said the FBI and DOJ were considering not charging all the rioters at Capitol on January 6. Some people naturally reacted with outrage to that, and Prof. Byrne Hessick wrote a threat in response:

I completely understand why people are angry about this. But the truth is that the criminal justice system routinely fails to prosecute people who are obviously guilty of crimes. It’s at the very core of modern criminal justice enforcement. It’s a serious problem that most Americans don’t know this. But we routinely fail to prosecute people who have obviously committed crimes. We just don’t have the capacity to pursue all of those cases. Part of the problem is that we’ve made too many things illegal. Another problem is that we’ve refused sufficiently fund the prosecutors, defense attorneys, and judges we’d need for full enforcement. But we also don’t have the cultural commitment to full enforcement. This isn’t just a question of partisan politics. And it isn’t just about race either. We’ve literally built a system predicated on partial enforcement of the criminal laws. In sum, if you’re angry about this, I understand. But that anger probably means you need to pay more attention to the criminal justice system generally, and not just when a bunch of losers storm the Capitol. A big hello to everyone in my mentions who are here to tell me that *they* know how prosecutors use their discretion to prosecute only certain groups of defendants. Please share your dataset with those of us who actually studprosecutors’ decisionmaking. We’d love to see it!

I wanted to chime in and say that this resonates with me, based on my work experiences. I think what she’s saying applies to many, if not most situations, that involve the enforcement of rules–specifically, situations where pursuing every infraction and meting out the appropriate consequences is not practical. Workplaces and schools are some examples.

What are the implications of this? And is there an alternate system that would prosecute every infraction, and would that be desirable? What are these systems? I’ll try to answer that in the rest of this post (in the comments section).

One thought on “The Failure to Prosecute People Who Committed Crimes is a Part of Our Criminal Justice System

  1. I’m assuming there are some typos up there and just going with what I think the intended statements are. To which my response is basically to agree with whoever the professor is when he says we’ve made too many things illegal. But this would suprise nobody reading this.

    It’s been a struggle most of my life against the establishment and against people like anyone reading this. Yes, I know life is unfair, and I know criminal justice is unfair. But I also know that fairness lies in the hands of people with power, and they don’t even try.

    If you’re going to have laws, they should be enforced. Otherwise, people like me are at a huge disadvantage. I’ll say this as briefly as I can as an example.

    When I was teaching at our alma mater, I was vocally against the rigidity and strictness of the dress code. I was also against specific pieces of the dress code, which I maintained then (and argue still) give fat kids no options to make them less self-conscious about their size. When you’re working with teens, this is a fricking terrible position to put them in.

    When you hope to make change in the system, you can’t actively work against it, or nobody takes you seriously. Because I hoped to be taken seriously when I spoke out against the dress code, I had to make sure everyone knew I was being a team player, working within the system. So I wrote up every kid who was in violation of the dress code, even though I didn’t give a rip what young men and women wore (generally).

    There was a male teacher at our school when we were students there (we all know him unless Penny or JB are reading this) who always enforced the dress code, and we all thought he was a jerk.

    Yeah, that’s what I got to be because I hated the dress code. Other teachers who insisted we couldn’t give students the kind of freedom I wished for never, ever wrote up dress code violations. The burden of enforcement was on me. I found this extremely hypocritical of my colleagues. YOU want a dress code but YOU won’t enforce it. I hate the dress code, but the only way to make myself heard is by enforcing rules I don’t believe in.

    This may seem a bit far afield, but it’s hugely relevant. If we’re going to have laws, we should enforce them. If we’re not going to enforce them, why don’t we all just admit most of us don’t care about them and get rid of them?

    Nobody honestly cares if pedestrians cross against the light (for one trivial example which hits close to home). What we care about is their endangering fellow citizens. Why don’t we make THAT the law? If a vehicle coming in the other direction has to slow down to allow you to cross against the light, THEN you’ve broken the law. Do you know how many jaywalkers would cease to receive tickets if the laws made sense? At least one fewer. Me.

    And never mind that the reason I crossed against the light is it was one-thirty in the morning and a shady-looking person was crossing with the light, and at that hour in my neighborhood, it’s best just to stay out of people’s ways.

    Breaking into and entering the Capitol of the United States absolutely should be illegal. This is a law I think we all agree on, and we should enforce it to the best of our ability. Get the druggies out of jail and stop writing tickets for jaywalkers by making their offenses not offenses anymore.

    One of our classmates was a police officer in northern California. I asked him at dinner one night what he thought of taking traffic enforcement out of the hands of police officers. We law-abiding citizens pretty much agree that a police officer’s job is super important. The only time, in their doing their work, we get angry at them is when it involves certain traffic violations. Put that into the hands of some other agency, and cops are heroes wherever they are.

    An irrelevant point we can argue about some other time. I’m mentioning it because our classmate, the cop, said, “We use those traffic violations because it’s a way to catch people doing other stuff.” People with arrest warrants, for example, or carrying illegal stuff in their cars. Our friend was in favor of enforcement of the laws only because they let cops make more meaningful arrests. In other words, enforcing the laws for the violations themselves is not the point!

    A woman gets arrested for selling sex to a willing customer. She gets arrested. Another woman invades the nation’s Capitol and she goes free. What the heck?

    By now anyone reading this has rolled his or her eyes a few times at me, because I have a history of getting into trouble. Meanwhile, people we know get away with stuff all the time. Why is that? Going back to when we were in high school, I was actually a (figurative) Boy Scout compared to some of the stuff our classmates got away with. Yet I was in the office all the time. They copied homework, cheated on tests, had possession of tobacco or alcohol on campus, and cussed like my dad. I didn’t do any of this crap; but I was the rebel because I spoke out in class against standardized testing and once stood up a teacher’s desk when he refused to spell my name correctly on the board.

    This has been Therapy Session with Drs. Reid and Don. Haina ia mai kapuana.

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