The Sun Tracks Down Nazi War Criminal

[Razgovory]

Newsflash, Einstein: having sex with a 13 y.o. who looks to be 16 y.o.: NOT THE SAME AS SENDING 16,000 PEOPLE TO DEATH.

Yes, kiddie rape should not be punished if the accused thinks she looks older.  It's a sane argument.  Tottaly.

The only point I'll say in Mart's favor is that who only came up with his terrible post because Shame tried to say Polanksi was equivalent to the mass murder discussed in this thread.

He is equivalent in that he's a convicted criminal.  That should be enough.

I don't think so. Not for the hypocrisy argument that Shame was trying to make.

Then think again.

[The Minsky Moment]

That being said, as a prosecutor there is always discretion in which cases you prosecute.  In every case we must answer whether a prosecution has a reasonable likelihood of conviction, and whether it serves the public interest.  And I've pulled cases because the accused was so old and infirm it no longer served the public interest to prosecute.  That discretion does not raise any issue of "prosecutorial nullification of the Legislature's intent".

No question that prosecutors should have the discretion to pass on old cases, either because of problems with proof or because there are special circumstances arguing for leniency.  But that is a different matter from adopting a general principle that old cases should not be pursued simply because time has elapsed.

[Barrister]

That being said, as a prosecutor there is always discretion in which cases you prosecute.  In every case we must answer whether a prosecution has a reasonable likelihood of conviction, and whether it serves the public interest.  And I've pulled cases because the accused was so old and infirm it no longer served the public interest to prosecute.  That discretion does not raise any issue of "prosecutorial nullification of the Legislature's intent".

No question that prosecutors should have the discretion to pass on old cases, either because of problems with proof or because there are special circumstances arguing for leniency.  But that is a different matter from adopting a general principle that old cases should not be pursued simply because time has elapsed.

I don't really see it as a different matter.  There are certain areas that are a matter of discretion, but so as to have some consistency in how that discretion is used has evolved into a written policy.

If we hold that a prosecutor has the ability to not prosecute someone due to advanced age, it's no great leap to say that a prosecutor might have a written policy to not prosecute someone past the age of 90, for example.

[Barrister]

This case *is* different though because he has been convicted (albeit a long time ago), and has been at large on his outstanding sentence.  It is not an issue of whether or not to prosecute, but whether or not to extradite.

[The Minsky Moment]

If we hold that a prosecutor has the ability to not prosecute someone due to advanced age, it's no great leap to say that a prosecutor might have a written policy to not prosecute someone past the age of 90, for example.

I disagree.
Once a prosecutor's office takes a hard, bright-line rule on exercising discretion that has the effect of eliminating all possibility of prosecuting certain categories of defendants that the Legislature has after its deliberation decided to not to exempt from prosecution, then that crosses the line from justifiable exercise of official discretion to overturning the legislature's decision.  It can't be squared with rule of law.

For example, at the US federal level, how and in what cases to apply statute of limitations has been the subject of considerable debate in Congress, resulting in legislation.  If a US attorney's office  for District "X" were to take the position that for crimes in category X, no offense would be prosecuted 30 or more years out, that amounts to the District X enacting a statute of limitations that was specifically considered and rejected by Congress.

Granted the distinction can get quite fine - for example, it would probably be OK for an office to use internal "guidelines" relating to these kinds of considerations, that while theoretically not 100% determinative, as a practical matter are close to being so.  But however fine you cut it, it is still a distinction with a difference.

[Barrister]

If we hold that a prosecutor has the ability to not prosecute someone due to advanced age, it's no great leap to say that a prosecutor might have a written policy to not prosecute someone past the age of 90, for example.

I disagree.
Once a prosecutor's office takes a hard, bright-line rule on exercising discretion that has the effect of eliminating all possibility of prosecuting certain categories of defendants that the Legislature has after its deliberation decided to not to exempt from prosecution, then that crosses the line from justifiable exercise of official discretion to overturning the legislature's decision.  It can't be squared with rule of law.

For example, at the US federal level, how and in what cases to apply statute of limitations has been the subject of considerable debate in Congress, resulting in legislation.  If a US attorney's office  for District "X" were to take the position that for crimes in category X, no offense would be prosecuted 30 or more years out, that amounts to the District X enacting a statute of limitations that was specifically considered and rejected by Congress.

Granted the distinction can get quite fine - for example, it would probably be OK for an office to use internal "guidelines" relating to these kinds of considerations, that while theoretically not 100% determinative, as a practical matter are close to being so.  But however fine you cut it, it is still a distinction with a difference.

Well, we'll have to agree to disagree on this.  As long as that bright-line poliy can be shown to be a valid exercise of discretion it does not matter that it is firm, or written down.

I can think of a couple of examples.  We have a policy to never prosecute s. 159 anal sex charges.  The basis for that policy is quite understandable - the section has been found to be unconstitutional in other jurisdictions (but not this one), so it was determined that such charges were not in the public interest.

There is a written policy about when to seek greater punishments on drunk drivers.  The Code talks about the penalties for a "second offence", without any time limit.  Our written policy is to only file the paperwork to have it classified as a second offence if the first offence was less than 5 years ago.  But again, this is tied into a valid exercise of prosecutorial discretion.

Now, a counter-example.  When gun registration was brought in Alberta said they would simply refuse to prosecute such charges.  It was pointed out that Alberta could not do so - you can not pick and choose which laws to enforce based on political ideology.  That was not a valid exercise of prosecutorial discretion.  (in that instance, in order to give Alberta some political cover it was agreed that the Feds would prosecute such charges, even though they only did so with the consent of Alberta)

[derspiess]

Jeez, another anal sex hijack? 

[garbon]

SF almost did the same with prostitution.

Though, I think it does do that with nudity.

[Jacob]

Good work. No respite for Nazi war criminals.

[Neil]

Good work. No respite for Nazi war criminals.

That's silly, not only as a matter of public policy, but also because this guy wasn't a Nazi.