‘Enforcing the damn law,’ but not always — As immigrant families are split, corporations enjoying more prosecutorial discretion

Click to see this story at NBCNewYork.com

Merry Christmas! Another day, another story of America shamefully and needlessly wrecking families.  All in the name of upholding the letter of the law.

This time, it’s a Mexican couple from New Jersey who’ve lived in the U.S. for 30 years; their 16-year old son will now be in custodial care of his oldest brother, who also assumes their mortgage.  There’s dozens of stories like this right under your nose, however. The Virginia mom sent back to El Salvador after 11 years, leaving behind a 10-year-old and a 4-year old. She was actually nabbed because she followed the rules. The Oakland mom sent home after dropping her daughter off on her first day of high school. There’s the Seattle-area mom who was picked up by agents who tricked her by answering her ad to purchase A home-made piñatas.  Her fisherman boyfriend was arrested, too, after he talked – anonymously – to a local newspaper about it.

Maybe you, too, feel sad about this, but you can’t see to pry yourself away from the logic that “the law is the law,” and it must be enforced, no matter what.  After all, you can’t pick and choose which laws to enforce.

Actually, you can.  We do it all the time. Let me help.

I heard two things recently that made it obvious Americans could use a quick lesson in the legal concept of discretion.

“Enforcing the law son. Enforcing the damn law.”

That came from a reader when I wrote to question why ICE agents conducted roundups recently in places like Boston. Were they designed to make America safe or merely make a point about sanctuary cities, I asked? Sandwiched around some more name calling that I suppose was designed to show he was my elder, he made the popular argument above: that no one is above the law.

On the other hand, read this: it came from a high-ranking Trump administration official.

“An issue I see coming up a lot is distinguishing between legal requirements and prosecutorial discretion…legally we can bring a case but it is something the agency wants to do? (We) are trying to anchor our decision making in consumer harm.”

That was said in early October by the acting direct Federal Trade Commission’s Bureau of Consumer Protection, Thomas Pahl.  He was speaking at a conference devoted to privacy law, explaining why the FTC has given economists a bigger seat at the table when deciding which cases to pursue. Investigators, by their nature, want to prosecute, he said. But many times, while there might be a violation of the letter of the law, there is little or no real economic harm to consumers.  In those situations, the FTC would be better off focusing on other cases.

Involving economists in such decisions is controversial, but certainly defensible. Prosecutorial discretion, a term Pahl used repeatedly, is a well-established tenet of U.S. law and law enforcement. It’s a term that my “dad” above seemed unfamiliar with, however, and seems all but forgotten in the seething cauldron that serves as public debate over issues like immigration.

Prosecutorial discretion exists everywhere, however. We simply couldn’t live without it. Here’s a small, real-life example. In my mom’s hometown of Hoboken, N.J., just across the river from Manhattan, double-parking is a way of life. No business on the town’s main strip would ever have supplies, let alone fill take-out orders, were parking laws strictly enforced.  Instead, a police car cruises up Washington Street once in a while, tooting a siren at those who linger too long in the middle of the road. Then…one thousand one, one thousand two, one thousand three…out comes the parking ticket. Lawbreaking is tolerated, but only so far.

Prosecutorial discretion happens at every level of law enforcement, from traffic cops to the Department of Justice.  It has to. If the FTC pursued every case of misleading advertising, most talk radio and a lot of late-night television would disappear overnight. There’s only so many lawyers; the agency should save its bullets for the big stuff.

One can certainly argue that putting economists at the table with investigators when the FTC picks its cases sends a signal that breaking the law isn’t that big a deal.  False advertising, in and of itself, isn’t of much interest to the agency now, it would seem. Not surprisingly, economists tend to be more sympathetic to businesses. When economists are involved, they usually “critique” cases, Pahl told me. More economists mean more cases and counts get dropped.

“Generally economists are more likely to say, ‘This theory goes too far,’ ” he said.  “The difference from the past, (economists) get listened to more, have more input.”

In other words, economists tend to represent business interests at the Federal Trade Commission. Naturally, consumer advocates bristle at this idea that businesses accused of mistreating consumers have such an influential seat at the table. Economists have a bad habit of tolerating misery inflicted on a micro level in the interest of better macroeconomic data.  One can imagine cases being dropped or minimized when a misbehaving but “successful” company hurts only a few consumers. More important, when prosecutorial discretion is advertised so loudly, it’s even easier to imagine firms taking greater liberties with their consumers.  Were cops in Hoboken to announce a plan to cruise down Washington Street less often, double parking would overrun the city.

Still, when handled skillfully, prosecutorial discretion is absolutely essential to the function of any law enforcement agency, and Pahl’s stated intention — to focus investigators on the most harmed consumers — is perfectly sensible. Law is always a balancing act.

It seems a hateful kind of cruel that on one side of Washington D.C., the Trump administration is making such a full-throated point about prosecutorial discretion, while on the other side, letter-of-the-law cheerleading is being used to justify separating immigrant families. Trump’s base, of course, laps up the rhetoric.

“Keep it simple. Enforce the damn law,” continued my reader, when I engaged in a discussion of discretion. “Rule of law is bedrock to success of our civilization son. #readbooks Leftists subverting rule of law & U.S. Constitution is the new Marxism.”

One could point out there is difference between discretion involving civil and criminal matters.  We wouldn’t want a lot of discretion exercised in prosecuting murders, for example.

Bu here, I must point out that being an out-of-status person in the U.S. is not at all like committing murder. In fact, it’s not even criminal.  It is, akin to false advertising, a civil violation. Crossing the border illegally is a crime, but entering legally and overstaying is not a criminal violation. Calling such a person an “illegal” doesn’t make sense. Prosecuting them like one doesn’t make sense, either.

In many of these sympathetic cases you’ll read, there is an illegal, criminal border crossing involved — in some cases, a decades-old infraction. As we know, we can’t ticket every double-parked car, we can’t sue every misbehaving company, we can’t fine everyone who’s ever fibbed on their tax returns, and we can’t deport everyone who is out of status in America.

So here’s a modest proposal. How about we give people the same rights as corporations, and develop a Bureau of Economics to embed within the Department of Homeland Security? Its job would be to calculate the true harm caused by immigrants, balanced against their economic contributions, and focus only on the egregious cases.  Such a balancing act would be tricky, but no more tricky that what the new FTC is trying to do. Not only would it be humane, it would be consistent with the way law is enforced across America. It’s not only more humane, it’s legally consistent. For anyone who’s struggled with squaring a strong immigration policy with humane treatment for the good brothers and sisters all around us, there’s your answer.

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About Bob Sullivan 1289 Articles
BOB SULLIVAN is a veteran journalist and the author of four books, including the 2008 New York Times Best-Seller, Gotcha Capitalism, and the 2010 New York Times Best Seller, Stop Getting Ripped Off! His latest, The Plateau Effect, was published in 2013, and as a paperback, called Getting Unstuck in 2014. He has won the Society of Professional Journalists prestigious Public Service award, a Peabody award, and The Consumer Federation of America Betty Furness award, and been given Consumer Action’s Consumer Excellence Award.

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