“Extremely Creepy, but Nothing he did was Illegal”: Charging Patterns During Prearrest Screening

• Author: Belén Lowrey-Kinberg,Rachel Bowman,Jon Gould
• DOI: http://doi.org/10.1177/08874034221099604
• Published date: 01 December 2022
• Date: 01 December 2022
• Subject Matter: Articles

https://doi.org/10.1177/08874034221099604

Criminal Justice Policy Review

2022, Vol. 33(9) 918 –942

© The Author(s) 2022

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DOI: 10.1177/08874034221099604

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Article

“Extremely Creepy, but

Nothing he did was Illegal”:

Charging Patterns During

Prearrest Screening

Belén Lowrey-Kinberg1, Rachel Bowman2,

and Jon Gould2

Abstract

We examine an approach to case screening where prosecutors screen requests for

charges before a felony arrest is made. In 2016, Franklin County prosecutors declined

to authorize arrests in 17.5% of felony cases. Declination rates, however, varied widely

between offense types. Prosecutors most commonly did not authorize an arrest

due to insufficient evidence, no crime having occurred, or follow-up needed. Among

other findings, the cases of Black defendants, as compared to White defendants,

were more likely to be declined due to insufficient evidence and additional follow-up

needed. We conclude that prearrest screening by prosecutors can filter out weak

cases early, increasing efficiency for the prosecutor’s office, saving the government

money, and minimizing the impact of a “bad” arrest on a defendant.

Keywords

charging decision, felony screening, prosecution

A prosecutor’s charging decision is one of the most consequential points in the crimi-

nal justice system (Medwed, 2010; Worrall, 2008). Here, a prosecutor may choose to

charge a defendant as requested by law enforcement, charge more or less severely than

requested, or decline the case entirely. Generally speaking, prosecutors’ decisions

have long been the focus of study, but much of the literature focuses on plea

1St. Francis College, Brooklyn, NY, USA

2Arizona State University, Phoenix, USA

*Jon Gould is now affiliated to University of California Irvine, Irvine, CA, USA

Corresponding Author:

Belén Lowrey-Kinberg, St. Francis College, 80 Remsen St., Brooklyn, NY 11201, USA.

Email: bvlowrey-kinberg@sfc.edu

1099604CJPXXX10.1177/08874034221099604Criminal Justice Policy ReviewLowrey-Kinberg et al.

research-article2022

Lowrey-Kinberg et al. 919

bargaining (Bushway et al., 2014; Kutateladze et al., 2016; Yan & Bushway, 2018)

rather than the charging process. As a result, we know relatively little about the charg-

ing decision, including how often prosecutors decline to charge cases and why.

Prosecutors’ offices use a variety of methods to screen and charge cases, which can

take place anywhere from hours to weeks after police arrest a suspect (Gershowitz,

2019). As a result, defendants may spend a considerable amount of time exposed to the

criminal justice system for charges that are ultimately dismissed. Simultaneously,

prosecutors struggle with an overload of cases and a shortage of resources (Bibas,

2011; Kohler-Hausmann, 2018). Screening cases prior to arrest is one innovative pol-

icy that can “weed out weak cases before they begin to clog the system and take up

criminal justice resources” (Gershowitz, 2019, p. 835).

In this study, we examine one year’s worth of prearrest screening data from a mid-

sized Midwest jurisdiction where felony arrests conducted without a warrant are

screened for approval by an on-call prosecutor. We focus on (a) how often prosecutors

decline to charge different types of felonies, (b) the reasons prosecutors decline to

charge these cases, and (c) the defendant and case characteristics that are correlated

with these reasons. In the discussion, we add context to our analyses using insight

from interviews and focus groups with assistant district attorneys.

Prosecutorial Charging Practices

While law enforcement is typically a person’s first point of contact with the criminal

justice system, it is district attorneys’ offices that serve a gatekeeping function.

Prosecutors’ power to select which charges to pursue, if any, gives them significant

influence in dictating who gets punished and how severely (Davis, 1998; Kutateladze,

2018; Shermer & Johnson, 2010). Beyond the initial decision if they should proceed

with a case, prosecutors exercise their discretion in determining whether to amend the

charges from law enforcement, add multiple counts, and add enhancements that, if the

defendant is convicted, will drive up their sentence (Kim et al., 2015; Shermer &

Johnson, 2010; Ulmer et al., 2007). Thus, the charging decision is an important junc-

ture for defendants, victims, and the public.

Theoretical Perspectives on Charging

Prosecutors have a strong interest in avoiding uncertainty in case outcomes. Because

promotion and reelection are often based on successful (guilty) case outcomes

(Albonetti, 1986; Medwed, 2009), prosecutors are incentivized to decline cases that

they are unsure can result in a conviction. This “‘downstream’ concern with convict-

ability” (Frohmann, 1991, p. 219) causes prosecutors to put themselves in the shoes of

judges, jurors, and defense attorneys to evaluate a case based on whether the charge

can ultimately result in a guilty plea or be proven at trial (Albonetti, 1986; Frohmann,

1991, 1997).

Scholars also theorize that the charging decision is dependent on a set of “focal

concerns” (Spohn et al., 2001). Originally used as a framework for understanding how