Thursday, June 2, 2022

Part I

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‘No Matter the Law, I Will Not Prosecute’: The Rise of Progressive Prosecutors and Their Subversion of the Rule of Law

What does it mean when a prosecuting attorney says that he or she will not prosecute violations of the law? This raises a legal issue known as prosecutorial discretion, the discretion by which a prosecutor decides whether or not to file charges and what charges to file in a specific case, how to prosecute a crime if the crime is going to be prosecuted.

But it also raises a host of other issues, and these issues have landed squarely in the national attention with several developments. One is the fact that there are now recall efforts against at least two major district attorneys, that is senior prosecuting attorneys with that authority in places like San Francisco and Los Angeles. In both jurisdictions, as we shall see in future conversations on The Briefing.

In both of those jurisdictions, extremely liberal prosecutors had been elected and yet their performance in office has led to the fact that even in a very liberal state, there are now very organized efforts to remove them from office. But what we’re going to look at today is the State of Virginia, where in the State of Virginia, the Commonwealth attorney, whose name is Steve Descano, has announced that he is not going to prosecute abortion crimes.

If indeed abortion becomes a crime, in particular, he says, as the headline in the New York times reveals, “My governor can pass bad abortion laws, but I won’t enforce them.” This is the result of a very long march through the law schools and through legal institutions undertaken by those who apply what has been known as critical legal studies and other liberal and progressive ideologies. What they have argued is a progressive understanding of the law, the function of lawyers, and in particular, the function of prosecutors.

The revolutionary issue here is the widespread argument that prosecutors should not prosecute crimes when they think there’s a disparate kind of effect, or they just don’t like the laws themselves. Now, let’s just state the obvious, our rule of law, our constitutional order comes down to requiring constitutional officers to fulfill their responsibility. But what you have right now is a divide in this country that is so deep that you have legal theorists and you have law professors and law schools turning out lawyers who actually are saying, right up front, they don’t intend to apply the law, at least the law as is written here.

You have a Commonwealth’s Attorney, you’re looking at a senior legal official in the Commonwealth of Virginia saying that he will not prosecute what he describes as bad abortion laws, even if the state should adopt them. Now, before we even turn to the case in Virginia, the particular argument, we need to understand how critical legal studies has worked. Critical legal studies is just one of the first and most important of the offshoots of critical theory. Critical legal studies emerged in law schools with the argument that the law, and that means not only legal statutes, but the entire system of laws, is an embedded exercise in discrimination and oppression.

Instead, critical legal studies said you need to look not at the law, but at the oppression that might be represented by the law, and you should seek to transform the law. If you can’t transform the law through the legislative process, then you put in place legal authority, such as prosecuting attorneys, who will actually decide which laws they will enforce, which crimes they will prosecute. One of the interesting things you see right now is this rise of an entire movement of very, I’ll say, liberal, they call themselves progressive prosecutors who are mainly known for what they will not prosecute, or you might even say who they will not prosecute.

Steve Descano, in the role of Commonwealth’s Attorney there in the Commonwealth of Virginia, has written this article. As I said, the title was, “My Governor Can Pass Bad Abortion Laws, But I Won’t Enforce Them,” and of course, the background of this is the election of Glenn Youngkin as the governor of Virginia. Now the Commonwealth Attorney says, “Almost two and a half years ago, I took my oath of office as prosecutor and swore to protect my community from those who broke the law. The real threat,” he says, “I now realize may stem from those who write the law.”

Now, even if we didn’t go any further, let’s just understand what’s at stake here. What’s at stake is the rule of law. Here you have a legal officer saying that his judgment is above the judgment of the court. His judgment is above the legislature and the governor there in Virginia. He is a law unto himself. He says, “If the Supreme Court overturns Roe v. Wade, the rights of thousands of Virginia women will be thrown into question.”

“While the Commonwealth does not have an abortion ban on the books,” he writes,” our governor has said that he is staunchly unabashedly against abortion and fully committed to going on the offense,” that’s quoting the governor against abortion rights in our legislature. The prosecutor then writes, “Should Roe fall, he could well strip women of their reproductive rights and go after thousands more who flock to the state whenever neighboring jurisdictions clamp down on abortion access.”

“What’s more,” he writes, “in Virginia today, women who are suspected of terminating a pregnancy without the assistance of a certified medical professional can face felony charges if they miscarry.” Now, you notice a shift in his argument. It was quite subtle, I don’t think he meant for us to catch it. But in that last part, he’s not arguing against a law that has not yet been adopted. He’s actually saying that he won’t prosecute the law currently on the books in the Commonwealth of Virginia.

His argument goes from bad to worse. He writes this, “So when the court’s,” that means the Supreme Court’s, “draft decision overturning Roe v. Wade was leaked earlier this month, I committed to never prosecute a woman for making her own healthcare decisions.” Notice the language there. Abortion just all of a sudden appears in the first part of his argument. It disappears when he says he’s not going to prosecute. Now it is, “A woman making her own healthcare decisions.”

He continued, “That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion or for being suspected of inducing one.” Notice the audacity here. Rarely do you see this level of absolute upfront statement from a legal officer that he will not apply the law if he doesn’t like the law. I’ll go back to his sentence. He said, “That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion or for being suspected of inducing one.”

A brazen statement, but one that is published by the New York Times and it is a spreading contagion in terms of America’s political system. As I said already, very well known so-called progressive prosecutors in places like Los Angeles and also San Francisco, but other places in flyover country as well. Right now we’re talking about the State of Virginia on the East Coast. Now, the political divide in Virginia is fascinating. The political divide is somewhat a geographic divide in Virginia.

The situation in Virginia is that it was a very red state that has become now a very blue state, but the blue concentration is, no coincidence, very close to Washington, D.C.. It is the growth of the government in Washington, D.C. and of the knowledge class with its various jobs coalescing around Washington, D.C. that has changed Virginia. As one longtime observer of Virginia politics has said, “Virginians didn’t change their mind politically. Non-Virginians moved into Virginia.”

Well, nonetheless, they’re in Virginia now, and Virginia went from being a red state to a blue state with an extremely brief period. If at all, they’re being described as a purple state, a swing state that could go either way. The Democratic narrative is that Virginia is blue and will stay blue, but that narrative took a big blow in the election of Glenn Youngkin, the Republican candidate, and he ran, you’ll recall, just a matter of months ago and won against a former Virginia governor, Terry McAuliffe, closely associated with the Clinton administration, closely associated with Hillary Clinton, closely associated with the mainstream Democratic Party.

But he went down to defeat. It’s the election of Glenn Youngkin that is the game changer in Virginia, and that’s what’s behind this article by the Commonwealth attorney because what he’s saying is that he is having to change his analysis of his situation because now you have a governor who represents a threat. But it’s not just a governor. In this case, he declares himself against the governor and the legislature. He says, “If indeed the State of Virginia should adopt the law” he says, “no matter what the law in Virginia says, I will not prosecute a woman for having an abortion or for being suspected of inducing one.”

He goes on to say, “By the way, I didn’t make this decision lightly, but I knew my constituents were tired of the empty rhetoric from Democrats in Washington desperate for action and understandably fearful for their future.” Descano writes about the rationale behind his position. He says he has privacy concerns, he has all kinds of concerns, but you’ll notice he puts his concerns above the law there in Virginia. He goes on to make it personal.

He writes this, “I recognize that this may come at a personal cost since making this pledge,” that is the pledge not to prosecute a woman who seeks an abortion or et cetera. He says, “Since making this pledge, a death threat was phoned into my office forcing me to worry about the effect my actions may have on my family.” Now, that’s a very troubling thing. Threats of violence should not be used in any circumstance like this.

But you’ll notice how fast he changes the entire argument here when he concludes that same sentence with, “At a time when I am terrified that my daughter is growing up in a country that limits her choices.” Now, that’s where he decides in the sentence. It’s on the fact that his concern about the pro-life movement is that the country may be turning into a nation that limits his daughter’s choices. Now, there’s so many worldview issues behind this.

One of the things we see is the absolute idolatry of personal autonomy. The absolute surrender to the sexual revolution to abortion is a way out of a problem, that problem being the conception of human life. But you also see the idolatry of choice here. The fact that his daughter’s choice might be limited. It turns out that is the greatest fear that this Commonwealth attorney articulates in this article. Now, again, Steve Descano is identified as the Commonwealth attorney for Fairfax County, Virginia, and that’s important.

That’s a part of that increasingly blue Virginia, increasingly liberal, increasingly progressive, increasingly predictably voting in Democratic terms. But in the case of this Commonwealth attorney, it’s not as if voters in Fairfax County weren’t told what they were voting for or who they were voting for. A pretty lengthy manifesto he put out was entitled, “Progressive Justice, The Case For Criminal Justice Reform in Fairfax County,” and it sounds just like the progressivism that you have seen in places like Los Angeles and San Francisco.

It’s a similar kind of effort and there’s no accident there because this is a movement in the law. It is a movement that is of course birthed, like most movements, in the educational context and in progressive law schools. In this manifesto that he wrote as a candidate, he wrote about how he would apply prosecutorial discretion. He says that that gives the prosecutor discretion over whether to accept or reject a case, the charges to bring in a case the office has accepted, whether to prosecute or seek alternatives to prosecution, bail policies, plea officers, types of sentences to seek.

In every one of those points, he aims in a very liberal direction. He means and he said, ahead of time, he means to apply prosecutorial discretion in such a way that he basically would use that discretion, as he calls it, in order to avoid applying the law, to avoid prosecuting some criminals. He raises issues such as marijuana, certain kinds of drug use, felony, larceny, threshold, cash bail. He’s against a death penalty. No great surprise there.

He said, “I will not seek the death penalty. Period. Full stop. The death penalty does not deter crime and is no more effective than life sentences at keeping the most dangerous individuals out of our communities.” Now, I reject that argument, but something else is at stake here. If you notice most of these so-called progressive prosecutors, they’re not much for life in prison either. You might add this new argument by Commonwealth attorney, Steve Descano, to his previously published campaign materials. But Christians need to take this kind of argument very seriously.

We need to understand that, indeed, we are committed to the rule of law, and that’s not just a matter of historical pattern or just some kind of ideological convenience. We actually believe that human dignity, the sanctity of human life, the flourishing and furthering of human society depends upon the rule of law. When you have legal officials saying upfront, and now in this article in the New York Times, that they will not prosecute what the law declares to be crimes, well, you no longer have a rule of law. You have a rule of progressive prosecutors.

But there’s something else here we need to note before we leave this. You’ll recall that the opinion piece had the headline, “My Governor Can Pass Bad Abortion Laws, But I Won’t Enforce Them.” Again, let me just point out the constitutional error there. Governors don’t get to pass laws. Legislatures have to pass laws. Governors get to sign them, but it’s all conflated because he is using this as a political opportunity. But you’ll notice what he said in the line that I read earlier is, “That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion or for being suspected of inducing one.”

Now, that raises another issue. It is unclear exactly whether he intends to isolate that issue or not. But most laws, criminalizing abortion aim at criminalizing abortion at the source, that is at the provider of abortion. That is to say that most abortion laws, and this goes back even before Roe v. Wade, long before the pro-life movement ever emerged in response to Roe v. Wade. It goes back to the tradition in Western law that when it comes to certain forms of crime, the most important and effective way to eliminate or reduce that crime is to cut off the providers.

This is why, as you look at prohibition, yes, you could be arrested for having a drink, but you were actually facing a much greater penalty for owning a still, for producing or for importing, smuggling in drink. As you look at other forms of crime, very similar. As you are looking at the criminal penalty for, say, being a pusher or a drug dealer, it is much more significant than being someone who purchases drugs. But here’s the interesting thing. Purchasing drugs is still a criminal offense, and it was still a criminal offense to possess beverage alcohol during prohibition.

There are other systems in which this is very much in play. It still makes moral sense to direct most legal efforts, both in terms of legislation and policy on the one hand, an actual law enforcement and prosecution on the other hand, it still makes more sense to seek to cut off the source. When it comes to abortion, that means shutting down abortion mills. It means shutting down abortion clinics. It means criminalizing physicians and other medical professionals, or for that matter, anyone else who would perform an abortion.

The reality is that that kind of legislation, from the very beginning of efforts to try to legislatively limit abortion, had been what is most effective. It is just most effective to cut off that form of evil primarily at its source.

Part II

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Moral Agency and Legal Accountability: A Continuing Question for the Pro-Life Movement

But here’s where there’s an interesting discussion going on among some evangelicals right now, and that is whether or not women seeking an abortion or obtaining an abortion should be prosecuted as well as the provider. That’s an interesting and a complex question.

In the first place, it has not been a mainstream question, even in societies that have legislated against abortion. There are various reasons for that. But the most important reason is just the reason of math and influence, which is to say, you go after the source rather than the consumer, primarily. The same thing’s true right now, by the way, even in something like organized gambling.

Yes, the gambler is often committing an illegal act, but the law enforcement efforts and the prosecutorial efforts are primarily against those who are organizing and greatly benefiting by illegal gambling. Now, the problem with abortion is that it is not the same as anything else, because you are talking about the termination of a human life. You’re not just talking about an illegal substance, whether it be drugs or say illegal alcohol.

You’re not just talking about an illegal activity like gambling. You’re talking about a victim. The moral logic of not prosecuting a woman seeking an abortion is not an airtight case. But at the same time, there’s another complication, and that complication is the fact that women seeking abortions or women who might be defined or even legally significant as seeking abortions are not all in the same situations.

Because for one thing, different women in different contexts are exercising a different form of moral responsibility, what is often in moral philosophy called a different level of agency. Let’s put it this way. A woman who seeks an abortion looks up how to get an abortion, takes herself to an abortion provider and simply demands an abortion. That’s a different level of agency than, say, a teenage girl who is pregnant and being driven to get an abortion, and perhaps even coerced or forced into getting an abortion by someone who might be a close male relative, or for that matter, the man who got her pregnant.

Thus, you look at this, you say it’s not exactly the same thing. There is a reason why, in the main, criminalization has been directed towards the provider of the evil rather than the consumer of the evil. But this is where Christians understand this is not a simple case of yes or no. There are many situations in which it would well seem that agency has been exercised by a woman and she should be held as complicit in either the death of her unborn child or the effort to secure such a death.

Even as you’re looking at this question, you realize the law, in its own way, is capable of making these discernments. That’s the reason why, as you look at different forms of crime, there are different levels of criminal charges, different levels of prosecution, different levels of potential or actual penalty. There is shoplifting, there is larceny, and there is also, you probably know the term grand larceny. There are just all kinds of situations, including when it comes to physical violence, in which there are different degrees.

That includes also murder charges. There are different degrees of the crime, different degrees of the prosecution, different degrees of the penalty. As you’re looking at the situation, this is not a simple yes or no. The law instead should reflect justice, and that justice should uphold righteousness, and that righteousness should include the righteous cause of defending unborn human life, and that means assigning blame and penalty where each is due, and that means holding persons who are morally responsible, responsible for their moral wrongdoing.

All this of course takes on new importance. This particular Commonwealth attorney says it takes on a new importance in Virginia because of the election of a Republican pro-life governor. But of course, the big story in the background is the decision coming in the Dobbs case before the Supreme Court, which may well, we must hope and pray, reverse Roe v. Wade, which would return all these questions to the states, and that means 50 states are going to have to deal with this and they will not deal with it just one time.

Instead, you’re going to see this issue continue to weigh on America’s conscience and also to be a major issue in American legislation. By the way, even if the Supreme Court did not take that case this year, that would be true because ever since the Roe v. Wade decision in 1973, every single year has been a difficult year in the cause and in the fight for defending unborn human life. The end of Roe v. Wade will be absolutely necessary, but it will not be the end of the story.

Part III

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‘If Roe v. Wade is Overturned, More People Will Leave Your Churches’: A Call to Christian Faithfulness In the Face of Pressure to Capitulate On Our Pro-Life Convictions

But that then takes me in an article written by Sarah Elbeshbishi published at USA Today. The headline, “Americans’ Erratic Relationship With Religion Will Be Tested Again After Abortion Ruling, Experts Say.” Well, who is the expert in this case? In particular, a professor of anthropology at Vanderbilt University named Sophie Bjork-James. Here’s what she said, “Abortion is framed as a black and white issue in evangelicalism in that it’s always bad.

I think we’re going to see, especially if Roe was overturned, is that there’s a gray area that’s going to jump into the picture in ways that many pro-life people have never thought about. We are told that Bjork-James specializes in evangelicalism and “reproductive politics,” and the article was really brought about by the claim that the differences over abortion in the United States, even though they are counted often as political or actually religious, and that it is the religious opponents of abortion, it is the pro-life religious people who may well have a surprise after Roe v. Wade is overturned, argue so many in this article.

That is the fact that Americans aren’t as religious as they used to be, and thus aren’t as consistently pro-life as pro-lifers wish or want them to be. You can see where this is going. The author writes, “The tumult of the past two years has made more Americans examine their relationship with the religion. Now, as the Supreme Court weighs a decision, it could lead to overturning the 1973 Roe v. Wade ruling, some experts think it could lead even more Americans to move away from organized religion.”

I wanted to address this simply so that I could say this out loud. What you are going to see over and over again is what conservative evangelicals have been presented with over the course of the last 30 years, and that is people who say, “If you actually hold to these beliefs, no one’s going to belong to your churches.” If you actually push this pro-life issue, then people are going to leave, particularly young people are going to leave your churches.

Now, if they are religious people making this argument, one of the things you need to note is that they tend to come from religious organizations that are actually where people did leave, including by the way, young people. Now, it may well be, by the way, that there is a demographic price, there’s a political price, there’s even a church attendance price to be paid for holding to biblical truth. But if so, then let it be. But the point is we do not do our theology by poll, we do not do our moral reasoning by social survey.

This kind of intimidation coming to the national media is just something you’re going to have to expect. The argument made by Sarah Elbeshbishi is that the reversal of Roe v. Wade is going to lead to a great moment of religious or theological disclosure on the part of the American people. The argument is here that so many Americans are now more secular, they are likely to be less pro-life. Now, as a pro-life evangelical, I have to say that makes a certain amount of sense.

People who hold to a more secular worldview tend to hold to a more secular morality. But Professor Bjork-James at Vanderbilt has the last word in the article where she say, “If we look at what has led to many younger evangelicals leaving evangelicalism, and often even leaving Christianity, it’s often been around issues of thinking that politics are too wrapped into faith.” The concluding statement, “I do think that this will create more controversy and probably more skepticism about tying in anti-abortion politics with faith.”

Well, again, is this just a political position, a pro-life conviction, or is it something rooted in scripture in the understanding that we’re talking about the killing of unborn human beings? If so, then those who believe that that’s what abortion is can’t simply say, “Well, we might alienate some people. Now that we’re on the threshold of a certain kind of victory, maybe we should back off of this thing.”

But the other issue I simply want to raise in closing is this, politics is going to say one thing or another about abortion. The law is going to say one thing or another. It’s going to say you can kill an unborn life or you can’t. Any way you look at it, holding to either position ends up being political. The big question is not whether Christians are willing to be political in this case, but whether Christians are rightly justly, righteously biblically on the right side in what is inevitably, yes, a political question.