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

AuthorBelén Lowrey-Kinberg,Rachel Bowman,Jon Gould
Published date01 December 2022
Date01 December 2022
Subject MatterArticles
Criminal Justice Policy Review
2022, Vol. 33(9) 918 –942
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/08874034221099604
“Extremely Creepy, but
Nothing he did was Illegal”:
Charging Patterns During
Prearrest Screening
Belén Lowrey-Kinberg1, Rachel Bowman2,
and Jon Gould2
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.
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.
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

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