Discretion isn’t carte blanche

Recently, I was reminded why the wheels of the private sector and government spin at different speeds. As aggravating and frustrating as the slow turn of government wheels can be, their reduced pace allows for thoughtful discussion and input from all facets of society, which will ultimately need to live and function under the laws and policies.

Because we understand the system to be deliberate and, at times, imperfect, society has tolerated and even encouraged public servants to use discretion when fulfilling their duties. This is especially true at all levels of the justice system because of the unequaled impact those officials have on individuals and communities. Within our communities, we want the public servants closest to the particulars of any given situation or incident to use their best judgment in the quest for justice.

We provide these freedoms as a matter of trust and hope the discretionary power we’ve afforded will not be used to, for instance, avoid prosecuting a family member or wage a personal vendetta against a certain demographic.

“American Bar Association standards basically dictate that any prosecutor can review any case for the best interest of justice,” explained Bob Rigg, a law professor at Drake University. “What that means is virtually any prosecutor has free-ranging discretion to decide what case he or she is going to prosecute.”


In addition to prosecutors, other members of the justice system, such as law enforcement and judges, may also use discretion to determine arrests, charges filed and case outcomes.

“The criminal justice system is a lot more complicated and complex than I think many people believe it to be,” Rigg said. “There’s a lot of nuance to it.”

Having discretion at each of these levels within the process, he added, serves as checks and balances within the system.

“Federal sentencing guidelines are a classic example of removing judicial discretion, and all we did was shift discretion from the judges to other elements of the justice system.”

Because discretion is spread throughout the system, it isn’t practical to believe that any one entity could set a blanket policy that would be followed by everyone.

Of course, no one wants to see an individual unfairly prosecuted. We collectively jump and up and down when we believe the justice system is making an example of a specific offender, or when claims of “affluenza” result in better treatment.

It is because of this pact that we require our elected officials to take and honor an oath of office, and it is also why we allow and encourage them to form organizations that participate in government lobbying and public persuasion.


John Zimmerman
John Zimmerman

The first dictates what is expected; the second aspires to an ideal.

Generally, it is only when both of these benchmarks fail that we expect an elected official or his/her agent to act outside of the prescribe stream to enact needed change.

Perhaps the fact that John Zimmerman, a Democratic primary candidate for Johnson County Attorney, is not yet acting under oath should insulate him from scrutiny for his promise that, if elected, he will not prosecute a select handful of crimes, such as marijuana possession for recreational use. After all, it is common knowledge that campaign promises are meant to be broken. The proposal’s indiscriminate violation of the public trust, however, mandates it be addressed here and within the minds of voters before the June 3 primary.

The fundamental duty of an Iowa county attorney, according to the Iowa Code, is to “diligently enforce or cause to be enforced in the county, state laws and county ordinances.”

Society, by proxy of its duly elected officials, has determined that intoxicated individuals are not welcome on town sidewalks and that it is illegal to possess any amount of marijuana. While these laws can be (and are) debated as stand-alone edicts and for the contributions to other societal concerns, they stand as a small portion of what elected officials, especially county attorneys, swear to uphold.

“When people make this type of a blanket rule or policy, the devil is always in the details,” said Rigg, who acknowledges a county attorney can choose not to prosecute certain types of crimes, regardless of whether or not arrests are made and charges are filed by law enforcement. “But as a practical matter, the police are still going to make arrests and enforce any statute they believe is going to assist them in any type of investigation. … I think, if you speak to someone on the Joint Task Force, they’d say the county attorney could do what he wants, but that they are still going to pursue, arrest and place people in situations where information is negotiated.”

Given the presence of I-80 in Johnson County, it is difficult to believe that a county attorney would be able to turn a blind eye to all possession charges, especially when some might need a cooperative prosecutor in order to garner information and arrests of those higher up the illicit substance food chain.


Speaking with The Gazette’s Editorial Board last week, Zimmerman said that the people of Johnson County will speak during the election and that their decision will let officials know whether or not the majority wants marijuana possession or public intoxication prosecuted. He later clarified that, yes, he does believe what is legal should be determined by popularity.

Even when it is understood that Zimmerman’s motivation to become an attorney and run for this office stems from his strongly held beliefs regarding social justice, it is impossible to not wonder if his inexperience within and regarding the world that encompasses the justice system and politics will lead to significant and costly missteps.

Laudable goals, such as ending racial disparities in the justice system, cannot be purchased with campaign sound bites.

This column by Lynda Waddington originally published in The Gazette on May 4, 2014.