Lakewood’s Slippery Slope of Not Prosecuting Crime

Guest Post by Chuck Bedard

Lakewood citizens are becoming increasingly frustrated over the amount of shoplifting, vandalism, and “less important” crimes that are not being pursued by the police.  And rightfully so!

Not long ago, my wife and I watched a man, pushing a shopping cart full of items at Home Depot, breeze through the self-checkout area – bypassing the opportunity to pay for the items – and head to the parking lot.  We looked at the cashier/attendant with stunned expressions on our faces, as we watched the Home Depot personnel do nothing.  Her response was, “The police won’t do anything, so we just let them go.”

For a fleeting moment, I thought about canceling my purchase and just loading the items in the cart and heading to my car… Remember, I said “for a fleeting moment.”  I wonder if I would have been treated in the same manner as the thief who had the shopping cart full of items.  Chances are good that Home Depot would have alerted the police if I tried to steal the same merchandise.

If I had been pursued by the police and the other person wasn’t, it would be a case of “Selective Prosecution.”  Selective prosecution should be distinguished from “Prosecutorial Discretion.”  Historically, prosecutors have had broad discretion to pursue those cases where the facts support a conviction and elect not to pursue matters where the facts are less clear.  However, as we read the news the lines between “Prosecutorial Discretion” and “Selective Prosecution”  have become blurred – perhaps intentionally.

“Prosecutorial Discretion” has been in the news recently when a federal prosecutor elected not to charge Mr. X in a matter relating to stolen classified documents.  Mr. X kept those documents in his garage next to his Corvette.  In electing not to indict Mr. X, the prosecutor noted that he was an elderly man with a poor memory and those facts made it problematic in obtaining a conviction.  Many legal authorities believed this prosecutor’s decision was far more political than legal, thereby removing this case as a matter of traditional and historical “prosecutorial discretion.”  After all, the prosecutor had the individual “dead to right.”  The facts were indisputable.  In reality, the results of this case amounted to “Selective Prosecution” rather than “Prosecutorial Discretion.”  Don’t think for a minute that you or I would not be indicted if Top Secret documents were found in your garage next to your Ford station wagon… even if we were old and had a poor memory.

The City provides disparate treatment to different classes of individuals.

Therein lies a big problem for the City of Lakewood (or any municipality).  The City provides disparate treatment to different classes of individuals.  The City seems to rely on some form of “prosecutorial discretion” for its diversionary programs that elect not to charge certain classes of individuals with crimes even though the facts of the crime are indisputable. Or, in the alternative, dismissing or reducing charges for those classes of individuals.  In reality, it is “Selective Prosecution,” and it is only a matter of time before Lakewood citizens decide they are fed up with being treated this way.  Based on current practices ANYONE can load up their cart at any store, and exit the store with the cash still in their pockets, knowing they won’t be prosecuted.

In other words, in the Home Depot scenario above, if the police elected not to charge the vagrant pushing the cart full of stolen property out of the Home Depot store, they cannot charge anyone pursuing the same activities.  To do otherwise is “selective prosecution” which the courts have said violates the 14^th Amendment of the US Constitution.  (The 14^th Amendment is often referred to as the Equal Protection Clause.)

Some might suggest that a law that isn’t enforced should be removed from the books, or in the alternative, in the case of shoplifting, making it legal if it is under a certain dollar threshold.  The “theory” is that people who need items like food to survive would have this resource.  There again, legal authorities have said that you cannot prosecute only certain classes of people.  If a vagrant can’t or won’t be charged then no one can be charged. That is the essence of  the prohibition of “selective prosecution.”

Lakewood City Council seems to think that shoplifting by anyone who can say they need the items for food to survive, should not be prosecuted.  Likewise, other “low-level” crimes like panhandling/washing your window at the stop light, and public urination/defecation are not worthy of attention by the police.  But remember City of Lakewood – if you allow one group to get away with something, you must allow all.

Most honorable citizens believe that all crimes should be pursued and pursued equally.  As parents, we know that if you don’t enforce the small stuff, it becomes impossible to enforce the big stuff.  This isn’t rocket science but it is a matter of fair treatment of all citizens and all businesses.  If everyone started pushing their shopping carts out of Home Depot, King Soopers, or Walmart, without paying, those stores would be closed and Lakewood’s tax revenue would be in the toilet.

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