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Legislating Prosecutorial Discretion

By "Milbarge" and "Fitz-Hume"

Prof. Berman links to a story about a legislative initiative in Vermont that would exclude teens who send explicit pictures of themselves over their cell phones ("sexting") from the child porn laws. Interestingly, prosecutors support the measure. But why is that necessary? If prosecutors don't think a teenager should be charged for this kind of thing...don't charge her! There's no law forcing the prosecutors to bring charges, after all.

I think the real reason prosecutors are on board with this bill is that, while it removes their charging discretion in some instances, it also removes the pressure. They don't get vilified in the press for witch-hunting some freshman onto the sex offender list. But they seem eager to abdicate the mantle of their offices in exchange for avoiding a few messy cases.

My prediction is that if the bill passes, it won't be long before some odd case -- like sexting-for-cash or coerced sexting -- creates a groundswell of fury to sweep teens back within the ambit of the law. Regardless of the wisdom of either course, it would be a lot simpler all the way around if prosecutors were willing to exercise a little judgment.

Full post as published by Begging the Question on April 14, 2009 (boomark / email).