In the United States a prosecuting attorney has absolute discretion to prosecute or not to prosecute. Neither a court nor the victim nor anyone else can force a prosecution.
There are two major flaws with arresting Polanski for extradition:
The first goes to the very aims of criminal law. Those are usually stated as revenge, deterrence, punishment and rehabilitation. Revenge is widely recognized as illegitimate. In Mr. Polanski’s case none of the legitimate aims seem applicable.
As he has not, as far as we know, committed any crimes in the three decades he has been living in France and Switzerland, the objective of deterring him from committing a future crime carries no force.
Nor do punishment and rehabilitation seem applicable. Punishment, like rehabilitation, is meant to be salutary, not vindictive. The purpose of both is to enable the prisoner to return to society and to function in a social setting without committing more crimes. As Mr. Polanski has been living in Paris for three decades as an apparently law-abiding citizen, those objectives do not come into play. What seems left is revenge
As to the seocnd flaw:
The second flaw is equally troubling. The extradition request appears to be the first request made since 1978, when Polanski became a fugitive. Although the Los Angeles district attorney’s office says that over the years it sought information and monitored his travels, it has not once sought his extradition.
...When there is a decades-long delay by the prosecuting authorities to arrest or extradite that cannot readily or coherently be explained, the prosecutor’s action appears arbitrary. The arbitrariness is magnified by the fact that the victim of the crime is not motivating the pursuit.
The European Court of Human Rights in the case of Markovic v. Italy noted that “the avoidance of arbitrary power” is the dominant principle that underlies much of the European Convention on Human Rights.
The U.S. is no different:
The same principle underlies the Due Process Clause of the 5th and 14th Amendments to the U.S. Constitution. Governmental action should not be arbitrary. If it is arbitrary, it raises a strong presumption that due process of law has not been respected. The L.A. prosecutor’s decision to extradite Mr. Polanski 30 years after the event must strike Mr. Polanski, and in the absence of some coherent explanation for the delay, neutral observers as well, as totally arbitrary.
He concludes:
When the state threatens imprisonment, it must be seen to act in an even-handed manner. If not, it mocks the very rule of law by its arbitrary act to enforce the law.
