Discretion:  The Better Part of Justice?

On July 25th, President Obama addressed the annual conference of the National Council of La Raza. During his talk, he was challenged about the disturbing increase in deportations experienced under his administration.  Mr. Obama answered by pleading that the nation’s laws must be enforced, and that he alone could not change them.  In response, many of his listeners shouted, “Yes, you can!”

While it may be technically true that the President can neither make nor unmake law, the enforcement function actually depends on the thoughtful exercise of  prosecutorial discretion.  Mr. Obama’s own Director of U.S. Immigration and Customs Enforcement, John Morton, has stressed this necessity in a number of memoranda to his staff, the most recent of which was issued June 17^th, 2011.  

Mr. Morton’s point is simply this:  when confronting real security threats with limited resources, immigration enforcement needs to focus on those individuals whose presence on our shores compromises  national security, public safety, or the integrity of the immigration system itself.  Conversely, the government need not squander its energies removing people such as prize-winning Washington Post journalist Jose Antonio Vargas,  or veteran combat photographer, Elisha L. Dawkins, or any of the millions of other hard-working, self-sacrificing, tax-paying, similarly-situated individuals  who would happily earn green cards or citizenship if only they had a path toward achieving it (and time to work things out).   

From an ICE agent’s decision not to arrest someone on the basis of a purely administrative violation to a judge’s decision to defer removal action indefinitely, there exists a wide array of scenarios in which the exercise of prosecutorial discretion could reduce hardship, permit breadwinners to be gainfully employed, enable families to remain intact, and, ultimately, allow time for real and lasting immigration reform to resolve the issues in question.  

Until Congress acts to overhaul our broken immigration system, prosecutorial discretion - in the spirit of Director Morton’s June 17th Memorandum – can and should be exercised at all levels to ensure that enforcement focuses on those who present a clear and present danger to this nation, and not on productive individuals whose only “crime” is their immigration status. 

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