Prosecutorial discretion is the latitude prosecutors hold over whether and whom to charge, and the excerpts treat it less as a procedural detail than as the point at which written law becomes actual enforcement. The concept surfaces in four episodes on otherwise unrelated subjects — gun licensing, criminal libel, sex work, and plea bargaining — and in each the speakers reach for it to explain why a statute on the books does not describe the law as it operates.
Discretion as the product of underenforcement
In the discussion of the Sullivan Law, Bob Zadek frames discretion as the inevitable consequence of statutes too broad to be fully enforced. He observes that the number of people carrying guns in New York City in violation of the Sullivan Law is probably in the hundreds of thousands, while prosecutions are very few, and concludes that the law is on the books but otherwise does not exist. From there he generalizes: when laws are pervasive in scope and there is not enough manpower to enforce them strictly, the result is prosecutorial discretion, and laws are enforced arbitrarily against the political class’s enemies of the day [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]. His claim is that such laws become another weapon of those in power, used selectively against those outside of power — an argument he extends by analogy to drug laws and minimum wage laws, which he says were done under the guise of being good for society while targeting a racial minority.
David Harsanyi supplies the historical particular. He describes the Sullivan Act as a law from the earlier 1900s that was initially used for political reasons, with gangs involved, and says local political bosses who were basically crime bosses arbitrarily decided how to use the law, helping allies and hurting people they did not like [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]. On Harsanyi’s account the danger is not a defect of one statute but a feature of gun laws generally, including those of the present.
Criminal libel and the prosecutor’s incentives
The longest treatment of the concept comes in the conversation with Eugene Volokh, where Zadek asks for the best argument against a well-drafted criminal libel statute — one prohibiting harm to another individual through untrue statements made with the appropriate bad motive. Volokh answers with two arguments, both about prosecutors rather than about speech doctrine.
The first is that such a law gives prosecutors the opportunity to go after people who may not be lying but whom the prosecutor thinks are lying, or simply wants to claim are lying. His illustration is a political enemy running a campaign against an ally of the prosecutor: the prosecution derails the campaign, generates publicity for the opponent, distracts the target and drains their money, and if the charges are dismissed or the jury acquits, it was not the prosecutor’s money that was spent Criminal Memes: The Ballad of Ricky Vaughn (2021). Volokh contrasts the two systems directly — in the civil system plaintiffs may spend too much to protect their rights, while in the criminal system prosecutors have too little disincentive to bring unmeritorious cases. He adds that it is human nature to assume the worst motives of one’s enemies, so a prosecutor may read innocent mistakes, statements of opinion, or even accurate statements as deliberate lies.
The second argument is underenforcement. Because libels are so numerous and so easy to produce, any such law would be sharply underenforced, and enforcement would turn on whether the prosecutor likes the victim and dislikes the alleged libeler — a discretion likely to be exercised in viewpoint-based ways Criminal Memes: The Ballad of Ricky Vaughn (2021). Volokh offers the narrower alternative of limiting criminal libel to statements on matters of purely private concern, but notes that the legal system has not done a good job of delineating what is public and what is private, and gives the example of a negative review of a doctor in which the doctor calls the prosecutor and the prosecutor must decide whether to act.
Zadek’s response is that Volokh’s own blog and Reason magazine are replete with examples of prosecutorial discretion exercised both properly and improperly, so the problem is not particular to speech but to the institution of criminal law. Volokh calls this a great argument and concedes he is open to it, while maintaining that the question is not clear in either direction. He distinguishes crimes like robbery, where he hopes there is not a lot of discretion and anyone caught is sent through the system, from casual lies about people, of which there are too many to imagine prosecuting more than the tiniest fraction Criminal Memes: The Ballad of Ricky Vaughn (2021). Zadek closes the exchange by observing that speech is protected by the First Amendment and that incarceration itself deprives a person of a constitutionally protected right, so criminal law generally trades away rights upon conviction.
Sex work: discretion as the variable that matters
Cathy Reisenwitz locates discretion at the level of local practice rather than statute. She says sex work in the United States is generally regulated at the city level, at least for full-service in-person sex work, and that the laws do not vary that much — but prosecutions do. Prosecutors, she says, have a ton of leeway and discretion in who they prosecute and for what crimes, and police direct their energy accordingly: if they know the prosecutor will not prioritize these prosecutions, they harass sex workers less “I’m From the Government and I’m Here to Help” - Cathy Reisenwitz (2022). She cites San Francisco, where the last prosecutor — not the current one — went on record saying he was not prosecuting adult consensual sex work offenses, and argues that where police are encouraged to work with sex workers rather than harass and arrest them, that is one of the best ways to find and rescue true human trafficking victims, because sex workers often know who is being coerced. She also reports that in every place that has tried decriminalizing sex work, to her knowledge, rates of violence against sex workers and against clients, rates of STIs, and rates of human trafficking have gone down, and working environments are less exploitative “I’m From the Government and I’m Here to Help” - Cathy Reisenwitz (2022).
Across episodes
The topic recurs across the gun-control, criminal-libel, and sex-work episodes, and the treatment is consistent rather than developing: in each, discretion is identified as the mechanism that determines real-world enforcement, with Zadek supplying the general theory in the Sullivan Law discussion, Volokh testing it against the specific case of criminal libel, and Reisenwitz applying it to local sex-work enforcement. The plea-bargaining episode is listed as touching the topic but its excerpt contains no substantive statement about it.
What the sources do not cover
The excerpts do not describe any legal standard, doctrine, or case governing the scope or reviewability of prosecutorial discretion, and no speaker states which amendment or holding controls. They offer no data on charging rates beyond the impressions the speakers give, and no account of how discretion is exercised outside the three contexts discussed. The plea-bargaining episode’s excerpt is a summary listing only, so nothing in it can be attributed to its guest.