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San Francisco DA announced that he won't prosecute certain crimes like public camping or public urination (second source). "San Francisco's new district attorney has chosen social justice over the rule of law" according to one opinion.

Can he do that? Is it legal for a DA to effectively decriminalize a class of crimes, and therefore substitute the laws deliberated and adopted by legislature and affirmed by courts with his own vision of social justice?

I thought DAs, as well as judges, are sworn to uphold the law as it stands rather than replace it with their own.

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    Non-prosecution by policy is not "decriminalization" as that requires legislative or juridical action. Inclusion of a quote from a credible independent source reflecting the reason for asking the question, and placing descriptors of link content instead of merely what the source is (which anybody can see by hovering or copying the URL already) is not "editorializing". However, adding meta commentary instead of emphasis is unhelpful, and removing the word social from the phrase social justice is a significant change in meaning, verging on vandalism. @GGMG-he-him
    – user4657
    Jan 24, 2020 at 21:33
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    As the answers below indicate, the short answer is "yes he can do that." But, in jurisdictions outside the common law legal tradition (i.e. in legal systems not based on the English common law system), such as Germany, France, Spain and Latin America, e.g., this is not the case and a prosecutor does not usually have this authority.
    – ohwilleke
    Jan 27, 2020 at 21:49
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    Another example from a common law country of this kind of decision is in Perth, Australia where the prosecutor has a policy of not enforcing prostitution offenses that meet the DA's criteria despite the fact that statutes make these offenses illegal. In the U.S. the federal Department of Justice follows a now unofficial policy of not prosecuting marijuana offenses legal under state law that also meet its criteria and it used to be an official policy.
    – ohwilleke
    Jan 27, 2020 at 21:52
  • The alternative is to put all cases on the docket and get to them when the system can handle them, yet the 6th Amendment binds the government "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial". By matching throughput to court capacity, DAs are indeed respecting the Constitution, as they are sworn to do.
    – user662852
    Jan 28, 2020 at 5:29

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Not only is it legal for the DA to decide which cases his office will prosecute, that is his primary function. The job of a DA is to decide if, when, and how cases will be prosecuted.

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    The job of a DA is to decide whether to prosecute cases, not whether to prosecute categories of crimes. A DA certainly can decide whether a specific case of, say, murder should be prosecuted, and perhaps decide against that, for example because of lack of evidence. However, if a DA publicly announces a new policy that murders won't be prosecuted anymore that would have the effect of decriminalizing homicide and mayhem would ensue. SF DA announced that crimes such as prostitution, public urination, and street camping -- the crime in general, not a specific case -- won't be prosecuted.
    – Michael
    Jan 24, 2020 at 22:26
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    @Michael Nitpick: As long as the statute of limitations has not kicked it, a DA can always change his mind ex post facto (or a new DA may be picked/chosen) and prosecute those murders that did happen while the DA was promising not to prosecute them. So it is not the same than decriminalizing it.
    – SJuan76
    Jan 24, 2020 at 22:37
  • @Michael The requirements on the exercise of prosecutorial discretion varies from jurisdiction to jurisdiction. But even where it is explicitly or implicitly (via court holdings) required that such discretion be exercised on a case-by-case basis, courts are rarely willing to second guess that discretion even in questionable cases, and it would be very hard to prove that "per case" discretion wasn't actually exercised. Public statements do not a sworn statement before a court make.
    – zibadawa timmy
    Jan 25, 2020 at 2:23
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    Prosecutors do have the discretion not to prosecute whole categories of crimes, not just individual cases. They can change their minds as @SJuan76 notes, unless they have reached a binding agreement otherwise with the person who might be charged (e.g. in connection with a cooperation agreement to testify against someone else), or have made a general statement upon which the public relies and provides adequate notice in advance of a chance in policy to prevent those relying on the general statement from being harmed.
    – ohwilleke
    Jan 27, 2020 at 21:45
  • @zibadawatimmy If a DA had a blanket "do not prosecute" policy which they had previously announced publicly and subsequently carried out then there would be a big paper trail demonstrating the actual policy (e.g. memos to staff and police officers, case records etc). If the DA then testified that there was no such policy and all of those cases were really considered individually it would probably attract penalties for contempt, or even perjury.
    – Paul Johnson
    Jan 28, 2020 at 15:52
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No, but ...

The DA has discretion to prosecute (or not) each case on its individual merits considering justice, efficiency and the public interest among other things. They are not supposed to adopt a “one size fits all” approach.

However, while this there is in theory no difference between a “never prosecute” category and an “always prosecute” category, the former has no legal impediment while the latter is subject to legal challenge. That’s because, since no one is hurt by the “never prosecute” rule, no one has standing to challenge it in court.

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    Hmm. Suppose that where I live or work suffered an increase in crime due to this policy, and this harmed me in concrete ways (e.g. slipping on faeces, being propositioned repeatedly, loss of property value). Would that give me standing?
    – Paul Johnson
    Jan 28, 2020 at 15:55
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    Ditto @PaulJohnson. This in fact what happens in SF. Picture this: you have a store in SF; a homeless sets up a tent nearby, harasses your customers, and urinates next to your door, and you can do nothing about that because your "quality of life" is officially not the DA's priority and the homeless knows that. Moreover, the city not only refuses to protect you, but also charges you to clean up after the homeless at your own cost.
    – Michael
    Jan 28, 2020 at 16:44
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    About standing. IIRC SCOTUS decided that police is not liable for the failure to protect unless police actions put you in more harm than before. Taking your car keys away from you and leaving you stranded in the middle of nowhere; notifying your stalker of your complaint and leaving you to be attacked by the enraged stalker -- police were held liable for that. Now, SF DA, by announcing the policy not to prosecute, put the citizens in the harms way by emboldening the criminals; is this enough for liability? If the announcement of inaction emboldens criminals, does that give you standing?
    – Michael
    Jan 28, 2020 at 17:07
  • @Michael you have to be harmed by the Da, not put at risk of harm to have standing.
    – Dale M ♦
    Jan 28, 2020 at 19:03
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    What the heck is "a homeless"? I cannot find this creature in any of my zoology textbooks...
    – Will
    Jul 5, 2021 at 14:02
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This is a de facto choice, not a de jure choice.

When a DA has more cases than time or resources, s/he must prioritize cases based on some criteria. S/he is not refusing to prosecute certain cases, s/he is putting them at the bottom of his/her priority list. This is why a stolen bike in a big city, while a crime, almost never gets to court.

Boudin has made the calculation that until the homelessness problem in San Francisco is better addressed by the people in charge, it is a waste of his precious resources to imprison homeless people for existing within the city limits. So quality-of-life crimes go to the bottom of the list. If he magically gets a huge budget, a whole bunch of officers, a whole bunch of judges, and a whole bunch of free time starting tomorrow, he would eventually be forced to prosecute quality-of-life crimes. But until that happens, they are no longer prioritized.

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    "he would eventually be forced to prosecute quality-of-life crimes", by whom (other than the electorate) and under what legal authority?
    – sharur
    Jan 24, 2020 at 20:42
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    @sharur supreme.justia.com/cases/federal/us/470/598 Wayte v. United States. In the world of lollipops and rainbows as I postulated, those crimes would have to be decided individually, and not categorically.
    – Carduus
    Jan 24, 2020 at 20:55
  • @Carduus, how does prioritizing of legal cases work in general? Are there any specific scheduling algorithms, or it's all up to the DA or the court officer to decide, as he or she pleases? Hypothetically, if can a DA keep indefinitely pushing a case to the bottom of a pile just because he doesn't feel like prosecuting it, or there are some general requirements?
    – Michael
    Jan 24, 2020 at 22:38
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    @Carduus, your comment shows that choosing not to prosecute some defendants is not necessarily a defense to other categories of defendents' prosecutions. In this case, no one is being prosecuted, so no defendant needs to appeal such a prosecution.
    – Tiger Guy
    Jan 25, 2020 at 2:09
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    @Michael "t's all up to the DA or the court officer to decide, as he or she pleases" usually. Sometimes a body supervising a prosecutor or law enforcement can de jure make prosecuting some class of crimes a "lowest priority" as Denver, Colorado has done more than once.
    – ohwilleke
    Jan 27, 2020 at 21:56
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In New York, a DA has a limited budget of resources and staff. The courts have ruled that the DA may exercise discretion as to where resources are spent.

Also in New York, a DA must prosecute a cognizable crime. In New York, this means that a sworn complaint may be used to force the prosecution of a crime, whether by the DA or a private attorney. This is sometimes utilized when a group of people choose to see prosecuted the actions of an elected official or some person who might be perceived as having some form of social immunity.

Finally, in some jurisdictions the DA and police agencies may elect to not prosecute and/or charge crimes which that agency believes are not legal, for example ones which are deemed as being unconstitutional. In New York, such announcement was made with respect to capacity of handguns. The down side is that creates an arbitrary discretion, which can be abused, for example by law enforcement charging persons with a crime when they know it will not be prosecuted. This creates a criminal history for an individual, along with it inconveniences.

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  • "in New York, a DA must prosecute a cognizable crime." I am 98% sure that there is no legal authority supporting that assertion. Perhaps that should be the law, but it isn't.
    – ohwilleke
    Jan 27, 2020 at 22:00
  • @ohwilleke, take a look at NY County 700(1). "1. Except as provided in section seven hundred one of this chapter, it shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed;  except when the place of trial of an indictment is changed from one county to another, it shall be the duty of the district attorney of the county where the indictment is found to conduct the trial of the indictment so removed, and it shall be the duty of ... exceeded comment size"
    – mongo
    Jan 28, 2020 at 1:41
  • And I would strongly suspect that no one has standing to bring a private cause of action to enforce that duty. In the same way, nobody can criminally or civilly prosecute U.S. Senators for failing to live up to their oaths in a Senate impeachment trial in the courts, and no one can punish a judge for intentionally ruling contrary to what the judge sincerely believes the law to be. Lots of violations of the law have no legally enforceable remedies.
    – ohwilleke
    Jan 29, 2020 at 0:45
  • Well the OP domain was at the state level. In New York, PL 195 covers official misconduct. There is some relevance to the question, because often DAs will not prosecute official misconduct charges, and police are reluctant to even investigate. However, a private entity could file and make the crime cognizable, and then hire an attorney to prosecute, if the DA failed to do so. There is a history of this happening. However it largely becomes rather political, as most attorneys would consider such a prosecution career suicide.
    – mongo
    Jan 29, 2020 at 1:04
  • "a private entity could file and make the crime cognizable, and then hire an attorney to prosecute, if the DA failed to do so." Not contradicting you, but I'd be interested to see that authority for doing that.
    – ohwilleke
    Jan 30, 2020 at 21:41

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