The phrase “tunnel vision” means different things to different people. For some, “tunnel vision” is a negative event when a person’s field of vision narrows to a small area during a stressful event, causing peripheral blindness. In contrast, others view “tunnel vision” as a positive. For example, an experienced and well-trained officer in a stressful situation knows where to focus or “tunnel” their vision by watching exactly where a threat is most likely to come from, which is typically a suspect’s hands. This type of “tunnel vision” is a skill developed from experience and training. For others, “tunnel vision” is when a prosecutor becomes attached to their own interpretation of the right action to take and is unwilling to consider alternatives, even in the face of contradictory evidence and legal norms. This last definition of “tunnel vision” is the focus of this article.

It is becoming increasingly normalized for prosecutors to be stubborn and arrogant while doggedly holding to a win-at-all-costs mentality.

A growing tunnel vision problem

In highly political environments, prosecutors who are elected can be pressured to make irrational case decisions. Some prosecutors refuse, no matter the evidence, to change positions from their initial instincts or personal sense of right and wrong. Strong political views, coupled with election pressures and special interest groups, have the ability to influence some prosecutors in our criminal justice system to act unjustly. While it is sometimes difficult to know a prosecutor’s true motivations for their actions, it seems it is becoming increasingly normalized for prosecutors to be stubborn and arrogant while doggedly holding to a win-at-all-costs mentality. In sum, we have a growing “tunnel vision” problem in our country. 

The limits of discretion

I remember, when I was a rookie police officer, I had contact with two minors who had been drinking alcohol and I let them off with a simple “verbal warning.” When questioned by my supervisor about my decision, I referenced “officer discretion.” Discretion is the availability of a choice of options or actions the officer has at their disposal. However, my supervisor not-so-subtly let me know the limits of officer discretion. In sum, he informed me that officer discretion comes in when there is a lack of resources to enforce every law violation, and discretion is only to be used when there is a legitimate need to prioritize enforcement based on time constraints and available resources. Moreover, he explained that officer discretion has nothing to do with my personal opinion about the law. It was a valuable lesson.

A constitutional republic

It is important to understand how our legal system works. The 14th Amendment’s Equal Protection Clause requires judges, prosecutors and all other employees in the legal system to swear to comply with the Constitution as “the supreme law of the land” and equally and impartially enforce compliance with the Constitution and the laws of the land. It is important to note that all states joined the Union based on the Constitution being recognized as “the supreme law of the land.” This is, therefore, the basis by which the states and the people of the United States are united as a nation. This is how we stay on the same page, so to speak.

Legal system framework: How it works

As part of this framework, our Constitution provides several checks and balances between the legislative, executive and judicial branches of government, which has helped our nation from becoming too authoritarian. 

In addition, the U.S. operates on a system of dual sovereignty: The 50 states and the federal government all retain their own sovereignty. Because each state is sovereign, each state sets its own laws and has its own Constitution. In addition, the U.S. federal government makes laws and has a Constitution. When we say “the criminal justice system,” it can be confusing because what we are actually talking about is 50 separate state criminal justice systems and also a federal criminal justice system.

Legal system hierarchy: How it works

The legislative branch of government creates statutes, and prosecutors prosecute the violations. For example, state statutes may set occasions that justify police officers in using force, such as in an execution of a legal process, enforcing a court order, carrying out duties imposed by law, or in defense of self or others. However, sometimes statutes are challenged in court as being unjustified. When this happens, judicial decisions are made that are based on rights found in the Bill of Rights. These judicial decisions often create case law that defines police and prosecutorial powers. 

The use of force by police is controlled by both state statute and federal precedent. In Tennessee v. Garner, the U.S. Supreme Court held that the use of deadly force is a seizure under the Fourth Amendment and incorporated legal rules that apply to all law enforcement uses of deadly force.

Court decisions are either binding or persuasive. For example, the Supreme Court is the highest court in the U.S, sitting above the U.S. courts of appeals and U.S. district and bankruptcy courts. In addition, the Supreme Court sits above all other state courts. 

The decisions of the U.S. Supreme Court are binding in both federal and state courts related to federal law. Yet the various state supreme courts are the highest courts in their states. For example, the Minnesota Supreme Court sits above the Minnesota Court of Appeals and the Minnesota trial (district) courts. When the cases are about a state-specific issue, the decisions of the Minnesota Supreme Court are binding on the Minnesota Court of Appeals, the Minnesota trial (district) courts and federal courts. 

Additionally, the U.S. Court of Appeals sits between the U.S. Supreme Court and the U.S. district courts. The decisions of the Eighth Circuit are binding on federal district courts and lower courts within the Eighth Circuit. However, other circuit courts in the U.S. Court of Appeals at the same level will view the decisions as persuasive.

Essentially, when analyzing legal issues decided by courts to determine if they affect police or prosecutorial power, the key is to find who has jurisdiction, and if decisions made by the court are binding or persuasive.

Discretion or nullification?

As noted previously, there is a growing trend where prosecutors will refuse to prosecute many valid laws passed by the legislative branch and justify their decisions by citing “prosecutorial discretion.” This is not “prosecutorial discretion”; it is actually “prosecutorial nullification,” which is entirely different. Prosecutorial nullification undermines the foundational pillars of our constitutional republic. To be sure, there are some valid reasons for prosecutors not enforcing laws. For example, a prosecutor should refrain from charging individuals under laws that they believe, in good faith, to be unconstitutional.

Yet some prosecutors have categorically refused to prosecute whole categories of crimes. Moreover, some prosecutors routinely charge felonies only as misdemeanors or limit the number of charges that can be brought against a suspect even though the suspect committed multiple crimes. One could argue these actions amount to repealing state statutes and acting in place of the legislative branch, thereby usurping legislative authority. 

Consequences  

There are 3,143 counties in the U.S., of which approximately 90% of criminal cases are handled by district attorneys and 10% are handled by U.S. attorneys with the Department of Justice. The problem is, if even a small percentage of prosecutors simply do what is right in their own opinion without regard to legal norms and appropriate boundaries, it destroys the fabric of order within our legal system. Consequently, the U.S. has many districts with drastically different legal outcomes, even where suspects commit the same crime and are governed by the exact same laws. The end result of this will ultimately lead to consequences for achieving fair and impartial justice. For justice to prevail, we all need to be on the same page, and that page is the Constitution/Bill of Rights. 

Conclusion: Prosecutors need to be like surveyors

If prosecutors weaponize the legal system, even with the sincere desire to reform its flaws, I fear they could be sparking a fire that is hard, if not impossible, to put out. Our legal system and Constitution are not perfect. Perhaps some of the actions by prosecutors are well-intentioned. Specifically, some prosecutors may have a propensity to act outside the accepted legal boundaries to quicken needed changes. However, there are legitimate and illegitimate ways to change flaws in our legal system. Admittedly, it is very difficult to change our Constitution. However, this is because the framers of our republic did not want our rights to be undermined by every passing whim and fad that was popular in the moment. 

As such, it is important that prosecutors act like surveyors. Surveyors know all about boundaries and the need to reset them when they have been moved. Surveyors do the work of surveying what is known and what is accepted in the law, taking care to reject those novel ideas that violate our checks and balances and core constitutional principles. In sum, if we lose the foundational norms of our legal system, we lose credibility in the whole system.