Law, Discretion, and the
United States Justice Department


Dear Virtual Editor,

I know you have a tough job.  The news business is competitive and it is easier to report on political soap opera than law.  Still, as long as the now fungible phrase “rule of law” continues to surface in popular jargon, maybe law is worth another look. Discretion is an essential component of that rule and questions about it are part of two recent stories involving the US Department of Justice. In one, the Attorney General got it right. In the other, there is a real question as to whether the Justice Department’s FBI agents got it lethally wrong.

AG Holder before ABAThe first, where Attorney General Eric Holder used discretion properly, is his move to get around draconian, ineffective, expensive criminal drug laws enacted by Congress.  It is difficult to argue with the policy objective here, though many on the right are doing so.  The brouhaha over his action made for juicy coverage, at least until another white teenage girl was abducted and bumped it.

For non-violent, low level drug offenders, the Attorney General decided to guide the discretion of US Attorneys with respect to charging offenses and alleging offense circumstances that trigger mandatory minimum sentences or invoke sentencing guidelines that lengthen sentences. The question is whether Holder acted outside his Constitutional obligation to faithfully execute the laws of the United States. That is a legitimate question and some who raise it are as appalled as Holder that the US, with five per cent of the world population has a quarter of the planet’s prisoners, more than half of them drug offenders, disproportionately people of color. They are not naïve about the war on drugs. They understand the law of common sense: When one is in a hole, the first thing to do is stop digging.  But they know that 18 United States Code decrees that the digging continue.  I believe their concern is unfounded. Holder acted lawfully.

The “laws” give prosecutors at every level of government unfettered discretion on the subject of whom to charge and with what. The laws give them absolute immunity from lawsuits challenging the exercise of that discretion.  This is but one of the reasons that I have more than once discouraged idealistic law students who said they wanted to follow my path as a defense attorney.  I told them that if they really wanted to do justice, they should become prosecutors; hard hitting, ethical prosecutors who exercised discretion intelligently and sought justice, not just convictions and political advancement.


All prosecutors and cops are responsible for the allocation and effective use of limited resources. Priorities matter. That is why thousands of times each day across the country, police ignore people smoking a joint.  At the federal level, it is perfectly lawful and appropriate for the Justice Department to guide the discretion of US Attorneys in line with department priorities. That guidance did not begin with the current administration and it is news today only because it is being exercised in a less punitive, and I would add, more efficacious way.  It is a component of faithfully executing a part of the law that is committed solely to the Executive Branch.

As an aside, I add a warning to my fellow Canadians. I found in my practice here that the exercise of discretion by prosecutors and judges is far superior to that in the US—to the benefit, not just of the accused, but everyone—with the exception of the prison industry. I often speak to young lawyers here and urge them above all to preserve the independence and participation of the judiciary, and the commitment of Crown Counsel to fairness. In the face of falling crime rates, our current right wing government has begun to go down the road of mandatory minimums and would like to move charging discretion in some cases from prosecutors to the police. All criminal law in Canada is federal. Our flawed democracy gives the government, the Prime Minister really, the power to pass any law it wishes. The biggest day to day obstacle to its foolhardy policies is the tradition of intelligent exercise of discretion by Crown Counsel. It is refreshing to see the US examining that tool as well.


 The exercise of discretion by FBI agents may not affect as many individuals as the Attorney General’s guidance on charging. Seventy of those affected, however, are dead.

Ibragim-TodashevIn May, FBI agents, accompanied by Massachusetts state troopers, interviewed Ibragim Todashev at his home Orlando, Florida, and shot him dead. Todashev was an acquaintance of Tamerlan Tsaraev, the deceased Boston Marathon Bomber.  It was not the first interview.

FBI agents apparently have unreviewable discretion to kill you during an interview.  Well, that is not quite correct. Agents’ discretion to shoot someone is reviewed—by the FBI itself. The last one hundred fifty of these reviews have concluded one hundred and fifty times that the agent was justified— seventy killings, eighty woundings—a perfect record.

MSNBC and Atlantic Monthly have been trying, mostly without success, to get someone to pay attention to this story. The FBI has made no statement, explanation, or defense of the killing of Todashev beyond acknowledging that the agents did it.  It does not plan to speak about the matter further. “Case” closed. Leaks from the Justice Department, however, have produced a strange list of possible circumstances: The young man reached for a samurai sword, a broomstick, a metal pole, a knife—nothing at all. The latest leak suggested that he was just about to confess to a triple murder. Some have particular reason to doubt that last one, since he had a plane ticket to return to Russia but postponed the trip in order to fulfill the FBI request for an interview—so he could confess to murder?

Every level of government, state and federal, has declined to investigate this killing, with one exception. Orlando State’s Attorney, Jeff Ashton, has opened an investigation.  Also, Todashev’s father has come from Russia and hired counsel to investigate.  Good luck to them both.

IbragimTodashev1In the unlikely event that an investigation of the killing makes it through FBI stonewalling and an agent is brought to trial, interesting issues would arise about Florida’s self defense laws and the recent trial of George Zimmerman. (See 5 August Post)  Of course, being able to just remain completely above the law and not even have to rely on Stand Your Ground or the state burden to disprove defenses is really the best situation imaginable for the shooter.  Especially since, just on the evidence available now there is enough to indict the agents for some degree of unlawful homicide. I can assure you that if the state had evidence that one of my clients had shot a man to death in the victim’s own home, and my client “lawyered up”, as the current derisive term for doing what the law allows goes,  and refused to say anything about how it happened, the matter would definitely not end there.

But in Florida, and I am told, almost every other state, where the prosecution must disprove self defense, could there be any chance for conviction if the agents declined to be questioned by people possessed of greater interrogation skills than Fox News personalities?  Assuming they would have to make some careful statement, in or out of court, in order to secure a self defense jury instruction, and assuming Mr. Ashton was not able, through use of his discretionary powers, to turn one of them against the other or secure testimony from the Massachusetts troopers, how could he prove that the killing was not in self defense. Can shooters stand their ground in someone else’s home? Maybe Jeff Ashton is wasting his time. Maybe we can understand better why Todashev’s father declined an FBI invitation to meet.  Maybe, fascinating as it is, we should not jump from arrogant silence to a hypothetical murder trial. Maybe we should be demanding meaningful oversight.

Nobody explicitly empowered George Zimmerman to kill. The Florida law of self defense was great for him, but it was all he had.  We have given law enforcement officers much more, and there is good reason to doubt that giving them essentially unfettered, unreviewable discretion to kill is a good idea.  I do not think that it is. A number of factors in addition to common sense and the law of probability suggest that there are some murders embedded in that 150 for 150.

Oversight will have to be done intelligently, because officers retain the right of self defense available to any citizen. But it is also fair to hold them to a higher standard than ordinary citizens in the exercise of those rights.  I know it is hard to believe, but I once commanded a Military Police unit.  It was clearly understood, for example, that we were not to act in response to some types of provocation, even if an ordinary citizen would be justified in doing so. That is a far cry from the “Comply or Die” ethic operating in some forces today.

You will note that we in Canada are not immune from the problem. (See my 1 August post where a Toronto police officer apparently decided to murder a man and Montreal police exercised discretion to hold their fire.)  Incidents like this, and the fatal tasering of a man in the Vancouver airport, are producing a growing number of independent review boards with investigative powers in this country. When it was perceived that only the obvious bad guys were being gunned down, the mantra: “They put their life on the line every day”, though that has never been true, played well enough with the public to bury the problems. It is not playing that well today. Beyond that approach, Canada also has a tradition of formal inquiries that has no real US counterpart. The task is to do the work intelligently and not to let the story fade.

There are independent boards of review in some US jurisdictions as well.  One with jurisdiction over the FBI is badly needed. It would be welcomed by most good cops, including FBI agents, most of whom know how to conduct an interview without resort to firepower.

Thus endeth today’s discussion of discretion. One for two for the Americans. Canadians, pay attention!



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1 comment to Law, Discretion, and the
United States Justice Department

  • Roger Wolfe

    Will read this more thoroughly when I have more time. Am in a tight time-wise, right now. But, I will add: I find mandatory sentences and “zero tolerance” rules distasteful. We pay school principals, judges, and prosecutors too much to limit their actions, or protect them, bureaucratically, by such rules. Discretion should be absolute and expected, even demanded. If handled badly, we have ways, I believe, to remove or discredit offenders. To not allow, or to fail to take, reasonable discretion is a cop out… I am not nuts about the AG, but, here, he is right.