CA County D.A. Decides Not to Prosecute Certain Crimes at All: Is that Legal?

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By Javier Lavagnino, Esq. on April 27, 2009 11:50 AM

A California county District Attorney is taking a rather extreme step in addressing budgetary shortfalls in his office, according to the San Francisco Chronicle. Contra Costa County District Attorney Robert Kochly announced that the county will no longer prosecute "[m]isdemeanors such as assaults, thefts and burglaries". Not only that, but added to the list of budget-saving measures are felony drug cases involving low quantities of narcotics, plus misdemeanor drug charges.

The story clarified that this means:

"... anyone caught with less than a gram of methamphetamine or cocaine, less than 0.5 grams of heroin and fewer than five pills of ecstasy, OxyContin or Vicodin won't be charged."

That's not all, either. Break minor traffic laws? Not a problem. Enjoy vandalizing stuff? No worries there. Shoplifting? Go for it! None of those crimes will be getting pursued, and county D.A. Kochly provided this explanation:

"We had to make very, very difficult choices, and we had to try to prioritize things. There are no good choices to be made here," said Kochly, a 35-year veteran prosecutor. "It's trying to choose the lesser of certain evils in deciding what we can and cannot do."

This move, and particularly it's public announcement, is getting an unwelcome reception in some quarters by people, one who said its about the same as "holding up a sign and advertising to the criminal element to come to Contra Costa County, because we're no longer going to prosecute you." Still, with staff cuts rising in his office, Kochly explained that doing "less with less" was pretty much a necessity.

But some may be wondering if this move is even legal? Surely there must exist some obligation to prosecute crimes in the books, right? Well ... not really. A prosecutor has very broad discretion in deciding what, if anything, to charge individuals with. Problems with prosecutors' decisions to charge people typically come from individuals on the receiving end of criminal charges. For example, people charged with crimes might claim they are the victims of selective or vindictive prosecution. But a decision not to charge is generally entirely up to a prosecutor.

Still, considering prosecutors are often elected officials such decisions might have fallout. One employee at a Contra Costa county store previously targeted by thieves balked at the decision, "'If they know they're not going to be prosecuted, there's going to be a lot more shoplifting,' [she] said. 'I'd ask them to reconsider,' she said of the district attorney's office."