Retired Justice Gould Decries Selective Enforcement Of The Law

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(Photo by Nathan O'Neal)

As Americans, we have the constitutional right, through our legislators, to pass criminal laws. But over the past few years progressives have effectively nullified this right by weaponizing Attorneys General as well as County and District Attorneys’ Offices. Simply put, progressive prosecutors from around the country have promoted their preferred political agendas by picking and choosing which laws they want to enforce, and selectively deciding which persons or groups they want to enforce them against.

Examples abound: refusing to prosecute smash and grab thieves that destroy businesses; the New York District Attorney downgrading armed robbery to a misdemeanor; thugs and looters taking control of Seattle and Portland with no consequences; and the Department of Justice turning a blind eye to the blood and violence on the southern border.

I am deeply troubled by this trend. In my view, it is nothing short of an all-out assault on the Constitution and the rule of law.

We face the same assault here in Arizona. Kris Mayes, the presumptive Democrat nominee for Attorney General, has openly stated that she will not enforce SB1164, Arizona’s recently enacted abortion law. Indeed, Kris is on the record stating that not only will she refuse to prosecute any physician for violating the law, but she will use her authority to also prevent any local county attorneys from doing so.

This is a shocking statement from a person who is seeking to become the state’s top law enforcement officer. To be clear, SB 1164, which provides civil and criminal penalties against physicians who perform abortions after 15 weeks “except in case[s] of medical emergency,” is nearly identical to the Mississippi law upheld by the United States Supreme Court last week. In short, it is a constitutional law that Kris Mayes simply refuses to enforce.

No AG has this authority. I would remind Kris that the legislature, not the Attorney General, has the constitutional authority to enact laws. Prosecutors have discretion in enforcing the laws, but that is limited to making a determination that (1) a constitutional law has been violated, and (2) there are sufficient facts to ensure a reasonable likelihood of conviction. This discretion does not allow an Attorney General to say, in effect, “I don’t like this law, and my friends and supporters don’t like it, so I’m not going to enforce it.”

Kris has placed her personal preferences and beliefs above the law. But the duty of an Attorney General, like the duty of a judge and a prosecutor, is not to base decisions on what you think or feel, but on the law and what you can prove in court. It is high time Attorneys General and prosecutors tone down their rhetoric and political agendas and perform their constitutionally assigned duty. For people like Kris, I would advise that they run for the legislature if they want to change the law. Leave the job of enforcing the law to those who will follow it.

As a judge and prosecutor, I disagreed, at times, with the laws I applied and enforced. As a result, there were times when I received harsh criticism from my friends, the public, and the press. Nevertheless, I understood my constitutional role. I also recognized that being a judge or a prosecutor is not a popularity contest, nor is it a platform to trumpet your political beliefs. It can be difficult at times, but as Harry Truman once said, “If you can’t stand the heat, get the hell out of the kitchen.”

Some take the rule of law for granted in this country. We would be well-advised to remember just how special this country is, and the role that our laws have played in making us safe and prosperous. There is no rule of law in totalitarian regimes like China or Russia, or in third world countries like Mexico. In those countries, laws are enforced the way Kris Mayes wants to enforce them: selectively, based on the political beliefs of the government. Many Americans have fought and died so that we do not have to live in such an unjust system. We owe them a great debt.

On the Arizona Supreme Court building where I served the people of Arizona, there is an inscription: “Where the law ends, tyranny begins.” Kris should walk by the building sometime and read that, so she can remember what it means to serve the people of this state as Attorney General.

About Andrew Gould 4 Articles
Andrew W. Gould was appointed as a Justice to the Arizona Supreme Court in 2017 after serving 5 years on Division One of the Arizona Court of Appeals. He retired from the Supreme Court in March 2021. Prior to his appointment to the Court of Appeals, Justice Gould spent 11 years as a Judge of the Superior Court in Yuma County, where he served as both Associate Presiding Judge and Presiding Judge. Andrew received his J.D. from Northwestern University School of Law in 1990. He began his legal career in Phoenix, Arizona, practicing in the field of civil litigation. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology, as the President of the Arizona Judges’ Association, and has taught at the Judicial Conference and New Judge Orientations.

2 Comments

  1. It’s ridiculous how the Left continues to spit on the Constitution and the rule of law. Vote only for those you believe in having strong laws and enforcing them.

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