Abstract

Excerpted From: Shima Baradaran Baughman, Do Prosecutorial Declination Trends Provide Hope for Reducing Mass Incarceration?, 60 Gonzaga Law Review 255 (2024-2025) (185 Footnotes) (Full Document)

The decision of prosecutors not to bring charges in a given case--often called prosecutorial declination or nullification--has baffled scholars for some time. Prosecutors engage in declination when they are able to bring charges but decline to do so based on a variety of reasons, including a lack of evidence. An important subset of declination is nullification, which occurs when prosecutors choose not to bring charges for certain crimes due to a disagreement with the law. Nullification, and declination generally, raise a series of questions: Do prosecutors have political reasons for declining cases, or are these decisions simply evidentiary? When given the choice in a borderline case, would a prosecutor choose to charge or decline to charge? Prosecutors have nearly complete discretion in their charging practices. They play a significant role in determining whether a person maintains liberty or is punished through incarceration. Mass incarceration is “one of the most significant social problems” in the United States. Despite evidence from recent decades that crime and arrest rates have declined, the United States remains the global leader in incarceration rates, with “no parallel in western societies,” and no apparent signs of this trend changing in the foreseeable future. In theory, prosecutors have the power to shift the tide of mass incarceration through individual decisions in offices across the country each day because of their unique position in the prosecution process. But do they choose to charge when given the chance to decline doing so? Very little is known about how prosecutors decide what charges to bring in a given case. This lack of transparency, often referred to as the “black box” of prosecutor discretion, still exists because it is so difficult to study prosecutors and to understand how or why they make decisions.

Commentators have argued that prosecutors are key to reducing mass incarceration. Progressive-minded prosecutors have argued that prosecutors are uniquely positioned to address mass incarceration by “implement [ing] specific decarceration goals.” Since around 2015, there has been a burgeoning movement of “progressive prosecutors” across the country. The increase in national attention for prosecutorial reform began in earnest during the Obama Administration. Since the late 2000s--and despite certain rollbacks of Obama- era criminal justice policies--many jurisdictions adopted policies designed to combat the “tough-on-crime” mentality prosecutors were formerly known for. These actions introduced an era of so-called “progressive prosecution,” in which prosecutors utilize their power to bring an end to mass incarceration. Progressive prosecutors, it is theorized, would engage in behaviors such as declining to prosecute specific low-level offenses to avoid overcrowding jails, increasing diversion programs, and hiring other reform-minded prosecutors. As a result, progressive prosecutors have gained traction in the media for their potential to turn the tide of mass incarceration. In recent years, jurisdictions made great strides to eliminate money bail, deprioritize drug crime prosecutions, release inmates from jails and prisons, and increase use of supervised release. Though such tactics are meant to reform prosecutorial conduct, scholars are unclear on whether tough-on-crime prosecutors are shifting into reform-minded prosecutors and whether the field of prosecution itself is actually experiencing progressive reforms. This Article is particularly interested in whether, given recent trends toward progressive reform, prosecutors are declining to charge in more cases than expected, thus reducing the number of individuals enveloped in our system of mass incarceration.

Previous commentators have provided insight into the important question of why prosecutors choose to decline cases. Professors Ron Wright, Marc Miller, Roger Fairfax, and others have discussed prosecutors' charging decisions, as well as factors that might influence declinations. Professors Wright and Miller focused on identifying relevant factors that lead to prosecutorial declination, with the hope that such identification could assist in reform efforts. They examined a database of prosecutorial decisions made by the New Orleans District Attorney's Office over a period of eleven years and identified three main factors that contributed to the vast majority of declinations--victim hesitancy, evidentiary problems, and other pending charges. Professor Fairfax's research indicates that prosecutors might be influenced by “resource limitations, law enforcement priorities, needs or wishes of the victim, and the perceived public interest” to nullify cases. Other research shows that prosecutorial declination might be caused by insufficiency of the evidence, systemic costs, and consideration of victims. Some have argued that politics has an outsized impact on prosecutorial declination, which may permeate decision-making.

Other commentators believe that prosecutorial declination (or nullification) could be an appropriate means of remedying mass incarceration. Professor W. Kennel Murry argues for “populist prosecutorial nullification,” a democratic vision of prosecution in which prosecutors decline cases consistent with the will of the people. This theory ties prosecutorial legitimacy to public approval and, Murray contends, would also transfer power back to local groups by providing them with more direct control over prosecutorial decision-making. Professor Jeffrey Bellin points out some potential concerns with prosecutorial declination, criticizing efforts to use declination as a tool for criminal justice reforms.

With this in mind, are prosecutors choosing to decline cases out of necessity, a desire to serve justice, or based on political reasons? Or are they choosing to decline at all? In my field experiment and other empirical work with Christopher Robertson and Megan Wright, we found interesting data to help put these prosecutorial declination theories to the test. First, we found that in the last fifteen years, the decrease in criminal filings has not kept pace with a declining arrest rate. In fact, prosecutors are charging more criminal cases per arrest than in the last twenty years. This puts a damper on the hope that some have held onto that progressive prosecution is growing in importance. Second, we found that prosecutors, when given the chance, will charge nearly every case. Out of our sample of over 500 prosecutors, given a marginal case, only 3% chose not to charge a crime. And many chose to charge multiple offenses in a case where there was no physical harm and no prior criminal history. This supports a theory that prosecutors are not necessarily dismissing cases for reasons of justice or mercy at the outset but are declining cases later as a result of insufficient evidence or lack of witness cooperation. Third, we found that most prosecutor offices did not have charging standards or supervision. Instead, our study suggests that, in the vast majority of cases, prosecutors were making decisions alone. This might also indicate that progressive declination policies are likely to be ineffective in reducing prosecutorial charging. In other words, given how decentralized and unsupervised prosecutors are in their charging decisions, office-wide policies hoping to curb mass incarceration through declination are unlikely to be successful.

This Article first argues that prosecutors are not inclined to decline charging cases where the evidence allows charges. Second, it hypothesizes that the growing movement for progressive prosecution is unlikely to influence any dramatic shifts towards prosecutorial declination or nullification. The Article proceeds as follows. Part I provides meaningful background on prosecutorial declination data and current trends. Part II discusses whether prosecutorial declination is a desirable outcome or goal. Part III examines the data we have collected on prosecutorial charging and how it impacts arguments about prosecutorial declination. Part IV asserts that declination is unlikely to serve as an effective tool to reduce mass incarceration because declination rates are driven by factors not tied to progressive concerns regarding the operation of the criminal justice system. It also provides three recommendations: (1) encouraging increased data collection and transparency to determine how prosecutor decisions are impacting incarceration rates; (2) proposing a new private system of prosecution, pioneered by Bennett Capers; (3) proposing a new private right of action for criminals who are prosecuted in a disparate manner; and (4) considering the possibility of a greater role of forgiveness in criminal justice.

[. . .]

While public perception might be that prosecutorial declination is a widely used practice among prosecutors, the latest research indicates that this is not the case. While there may be mixed opinions about the potential benefits and drawbacks of prosecutorial declination, there is no doubt that increased declination could lead to a decline in incarceration rates. Given the current state of prosecutorial discretion, with limited oversight, and the latest research on declination decisions, prosecutorial declination seems unlikely to meaningfully impact mass incarceration. However, other possible changes to the prosecutorial process could more meaningfully address the mass incarceration crisis in the United States. Internal review boards with community representation could help hold prosecutors accountable for charging decisions and incarceration rates. Providing victims with alternatives to public prosecution through “victim-lead declination” may also lead to less charges and more lasting change in defendants. The establishment of a private right of action for criminals disparately prosecuted would also help to minimize arbitrary charging decisions. Finally, forgiveness at a personal or societal level, though potentially controversial, seems uniquely equipped to end or improve mass incarceration. Although current conditions do not make it likely that prosecutorial declination will be a meaningful solution to mass incarceration, the structural and cultural alternatives suggested here might provide some hope in addressing high incarceration rates in the United States.

Woodruff Deem Professor of Law and Distinguished Fellow, Wheatley Institute, Brigham Young University and J. Reuben Clark Law School.