Author:Roth, Jessica A.

INTRODUCTION I. THEORIZING PROSECUTORIAL DECLINATION STATEMENTS A. What is a Declination? B. The Interests Served by Declination Statements 1. Signaling a. Closure b. Respect c. Nudges d. Public Pedagogy about the Criminal Law e. Public Pedagogy about the Prosecutorial Role 2. Accountability a. Internal Accountability to Precommitments b. Accountability to the Public c. Accountability to Other Institutions d. Accountability of Other Institutions e. Declination Data for Context 3. History-Keeping C. The Risks Posed by Declination Statements 1. Law Enforcement Risks 2. Risk of Error 3. Risk of Reputational Harm 4. Political Risk 5. Drain on Prosecutorial Resources II. THE CURRENT LANDSCAPE REGARDING DECLINATION STATEMENTS A. Academic Literature B. Professional Guidance 1. Model Rules 2. Federal Guidelines 3. National Standards C. Policy and Practice 1. Office Policies 2. Typology of Declination Statements in Practice a. Private, Sparse b. Private, Detailed c. Public, Sparse d. Public, Detailed e. Tone III. THE THEORY APPLIED TO PRACTICE: A SUGGESTED FRAMEWORK FOR PROSECUTORIAL DECLINATION STATEMENTS A. Default to Private Declination Statements B. Sometimes Move to Public, Sparse C. Rarely Move to Public, Detailed D. Consider Alternatives 1. Data and Reports 2. De-Identified Case Summaries 3. Other Fact-Finding Institutions CONCLUSION INTRODUCTION

One of the most important aspects of the prosecutorial function is the prosecutor's discretion not to pursue criminal charges in discrete cases. The exercise of negative discretion--i.e., the choice not to charge, even where the evidence might be sufficient--is a necessary feature of our system, and a reason why good judgment and common sense are so valuable as prosecutorial traits. (1) Outside of a few core offenses, it is not credible to claim that prosecutors charge every provable case brought to their attention. (2) Prosecutorial discretion mitigates "the rigors of the penal system," (3) by "blunting the edges" (4) of overly harsh or broad laws. In an era of expansive criminal law and finite government resources, declinations constitute an ever more significant piece of the criminal justice picture, (5) even if the precise size of that piece is unknown. (6)

Yet, the question of how and to what extent prosecutors should be held accountable for their exercise of negative discretion has not received sufficient attention. Historically, prosecutors rarely accounted for their declination decisions. (7) This was consistent with the overall lack of prosecutorial accountability and transparency, (8) which for many years went largely unchallenged. Unlike when they file charges, (9) prosecutors generally are under no legal duty to make public their declinations. (10) But prosecutors also had particular reasons to keep mum about declination decisions, including their duty as "ministers of justice" (11) to protect the privacy interests of those who had been under investigation, as well as witnesses and victims. (12) Other interests, too, explained the reticence to go public with such decisions, including protecting ongoing investigations (13) and prosecutors' prospective ability to exercise mercy without fear of political reprisal. (14) Today, for these same reasons, it is still true that prosecutors generally do not explain individual declination decisions, at least to a public audience. Most of the time, when an investigation is closed without the filing of charges, prosecutors do not account for that decision in a way that is accessible to the public. (15)

But occasionally prosecutors deviate from this norm, and anecdotal evidence suggests that such occasions are increasing. (16) These gestures toward transparency are invariably fraught. For example, then-FBI Director James Comey's now infamous July 2016 press conference announcing his decision not to recommend charges against Hillary Clinton for her use of a personal email server while serving as Secretary of State generated considerable controversy--especially his characterization of her behavior as "extremely careless." (17) Similarly, Manhattan District Attorney Cyrus Vance was widely criticized for his 2017 letter announcing his decision not to seek charges against New York City Mayor Bill de Blasio for fundraising-related activity, in which he nevertheless characterized the conduct as inconsistent with the spirit of the law. (18) In 2019, Special Counsel Robert Mueller's report regarding his investigation of coordination between Donald Trump's 2016 Presidential Campaign and Russian officials and related matters (19) predictably satisfied no one, including those who thought Mueller was too conservative in his legal and factual conclusions. (20) But the President's supporters also criticized the Mueller Report, which in their opinion unfairly and inappropriately made explicit that it did not exonerate the President, and because it detailed the evidence and arguments to support not only obstruction of justice but also possible violations of campaign finance laws. (21)

Given the risks associated with such statements, (22) one might ask why prosecutors ever would make them. But the risks of not publicly announcing declinations and their rationales are daunting, too. For example, Manhattan District Attorney Cyrus Vance was criticized when it emerged that he had declined to prosecute President Trump's adult children for real estate transactions that had drawn scrutiny (23) and that he had declined to prosecute entertainment mogul Harvey Weinstein for alleged sexual misconduct (24) without announcing those decisions publicly. To be sure, much of the criticism in these cases (and in those discussed above--involving Clinton, de Blasio, and Trump) was based on substantive disagreement with the declination decisions themselves--i.e., critics believed the targets should have been charged. But the fact that the prosecutor was perceived to be hiding the reasons for those decisions contributed to suspicions about their legitimacy. (25) The 2019 controversy over the decision by Cook County State's Attorney Kimberly Foxx to drop charges against actor Jussie Smollett for his false report of a hate crime highlights the dangers of a prosecutor providing insufficient reasons--or insufficiently persuasive ones--to justify the exercise of negative discretion. In that case, the mayor and the police chief of Chicago immediately excoriated the prosecutor's decision to drop charges, and the Cook County Circuit Court Judge appointed a special prosecutor to investigate the case. (26)

These examples highlight the tightrope that prosecutors walk in deciding whether and how to announce a declination decision. These examples hail from high-profile cases, but they reveal the interests that prosecutors are implicitly seeking to balance even in the less extraordinary cases handled by prosecutors around the country every day. Yet there is no literature expressly articulating those interests, how they should be balanced, or exploring why it is consistent with the prosecutorial role for prosecutors ever to make public their declination decisions. This Article attempts to fill that void.

Part I begins that project by theorizing three, sometimes overlapping, types of interests that statements about declination can serve: signaling, accountability, and history-keeping. The first category of such interests is described as signaling. For example, a declination statement can signal closure or the need to pursue other avenues of relief to those most immediately affected by the declination--including targets, victims, and witnesses. To the larger public, declination statements can signal prosecutors' interpretation of the criminal law, and the reasons why certain prosecutions, even if possible, may not be wise. Relatedly, declination statements can convey aspects of the prosecutorial role that may not otherwise be apparent, such as the reality that a critical part of the prosecutor's job is to set priorities and exercise judgment about which cases should be resolved outside the criminal justice system. Absent express attention to declinations, the public may default to an understanding of prosecution that consists solely of charges and convictions. To legislative bodies and prosecutors' law enforcement partners, declinations can send messages about the need to fix laws and practices.

Second, declination statements serve accountability interests by forcing prosecutors to articulate their reasoning and by providing a mechanism for comparing like cases. So, too, declination statements can help the public hold prosecutors accountable for their judgments. Particularly where there is concern that certain types of people receive preferential treatment based on their wealth, status, or relationship to the prosecutors involved (and where is that not a concern?), declination statements may be critical to a prosecutor's perceived legitimacy. Such statements also can help other institutional actors--such as legislators, governors, and law enforcement agencies--hold prosecutors accountable for how they exercise their discretion. Conversely, through their declinations, prosecutors also can hold their fellow institutional actors accountable for their failure to heed prior messages about the need for legislative reforms, increased resources, or greater care in the conduct of investigations.

Third, declinations can serve history-keeping interests when they provide a vehicle for relaying a narrative of past events, much as an indictment and trial would have if charges were filed. When prosecutors exercise their discretion not to charge, there usually is no other means available for others to learn the information obtained by prosecutors in the course of their investigation. Sometimes, there may be no other mechanism for the public to learn the facts at all. In the context of complex investigations involving public figures or particularly salient events, that...

To continue reading