Prosecutors and their State and Local Polities.

• Author: Wright, Ronald F.
• Position: Conference on Progressive Prosecution

INTRODUCTION 824 I. CATEGORICAL DECLINATION POLICIES 828 A. Case-Level Declinations 829 B. The Arrival of Categorical Declinations 830 II. POTENTIAL LIMITS ON DECLINATION POLICIES 834 A. Advocates for Exceptional and Case-Level Declinations 835 B. Advocates for Leniency Across All Settings 837 III. DUTIES TO THE STATEWIDE POLITY 840 A. Sources of Statewide Loyalty 841 B. Presumptions Linked to Resource Priorities 844 IV. DUTIES TO THE LOCAL POLITY 847 A. Local Funding and Effects as Sources of Local Power 849 B. State Grants of Local Autonomy 851 C. Applications 855 CONCLUSION 857 INTRODUCTION

Prosecutors dominate the decision not to file criminal charges. Lately, it seems, prosecutors in some jurisdictions talk more openly and categorically about this power. Rather than deciding quietly to decline charges in a particular case, they announce publicly that going forward their office plans to decline certain types of cases across the board. (1) Such categorical declinations might extend to selected criminal statutes, such as marijuana possession, or might extend to groups of defendants, such as juveniles or homeless people, who face designated charges. (2)

These categorical declination policies differ from more familiar uses of the declination power for two reasons. First, they are publicly announced, and, second, they are not justified on the basis of facts in the particular case. Prosecutors traditionally refuse to file charges in individual cases for various reasons. Sometimes it is because of a lack of evidence, sometimes it is to shift limited resources to other potential cases, and sometimes it is because a criminal prosecution would not produce justice or public safety in the particular case. (3) These decisions, however, are typically not announced to the public, and they do not ordinarily apply prospectively to entire categories of cases.

Legislatures and judges in the United States do not typically enforce limits on the prosecutor's discretion to decline charges. (4) Nevertheless, a prosecutor's declination policy is a matter of debate within the prosecutor's office, among other lawyers, and with the larger voting public. (5) Within this arena of public debate, prosecutors' announcements about their declination plans have prompted controversy about where to place those limits and when those declinations should be deemed legitimate or illegitimate. (6)

One approach to this question--one might call it the "leniency option"--validates prosecutorial leniency in almost every form. With the possible exception of declinations motivated by invidious discrimination or personal gain, this approach holds that the prosecutor may refuse to initiate charges against any individual or in any class of cases, so long as the refusal is based on an appeal to the common good. Under this view, no other governmental actor may properly compel the prosecutor to pursue a criminal case. (7)

Another school of thought--one might call it the "individuals-only option"--draws a line between case-by-case declinations (which are seen as acceptable) and categorical decisions to decline charges (which are not). (8) For this camp, any declinations that apply to entire categories of criminal charges or criminal defendants are improper uses of prosecutorial discretion.

These two familiar accounts of the outer bounds of the prosecutor's declination power are both grounded in the separation of powers theory, despite the different outcomes they advocate. According to this theory, a declination is legitimate when it remains an exercise of prosecutorial power, as defined in historical and constitutional terms. (9) When a prosecutor encroaches on the work of the legislature by effectively decriminalizing entire categories of conduct that are punishable in the criminal code, the declination is illegitimate. Thus, according to this view, the essence of the prosecutor's role defines the boundaries of the declination power. (10) The individuals-only option and the leniency option simply disagree about how to describe the essence of the prosecutor's role.

In this Article, 1 argue that not all limits on the declination power of state and local prosecutors in the United States derive from a separation of powers theory or from any single account of the essential nature of the prosecutor's job. Instead, proper limits on the prosecutor's declination power should also account for the division of authority between levels of government: federal versus state and state versus local governmental authority. Viewing prosecutor declination policies from this vantage point takes into account the importance of diverse structures and practices among different prosecutors' offices.

The different levels of government matter because prosecutors answer to a different electorate--a different polity--at each level. Although federal prosecutors enforce the criminal laws of the national government on behalf of a national polity, (11) most state prosecutors straddle two different polities. They enforce the criminal laws enacted by the representatives of a statewide electorate and, at the same time, they must also account for the current enforcement priorities of the local county residents who elected them to office. Prosecutors answer, at least in part, to those local residents who most immediately feel the effects of their work to promote public safety. (12)

Although individual case declinations fit easily with the prosecutor's duty to a statewide polity, categorical declinations require more careful explanations from the prosecutor. (13) It is easiest to justify declination policies as presumptions--that is, a general office practice of refusing to charge-while leaving open the possibility of a prosecution under exceptional circumstances. These presumptions can be founded on the prosecutor's judgment about where to spend limited resources.

Further, when local residents favor non-enforcement of particular criminal laws, their voice adds greater legitimacy to the prosecutor's declination policy. It is appropriate for voters in the district to influence the local prosecutor's priorities in pursuing one type of criminal case when compared to others. (14)

Some local input matters more than others. For instance, some legal environments strengthen the prosecutor's duties to the local polity when they rely on local governments to fund aspects of criminal enforcement or when they grant legal autonomy to local officials. (15) In such a locally oriented legal framework, a prosecutor might go beyond mere presumptive declinations. Categorical declinations might be appropriate in that local setting to block the use of state statutes that fall outside the core provisions of the criminal code. A clear-cut rule against prosecution under these statutes can serve the customized public safety needs of the locality and reflect the current enforcement priorities of the local voters. Further, a clear announcement of such a rule promotes better accountability of the prosecutor to the public.

Ultimately, this framework of competing polities can accommodate both those prosecutors who limit their declinations to individual cases and-in the proper circumstances--prosecutors who make declinations categorically. Prosecutors who decline charges on either basis can fulfill their duties to both sets of voters.

Part II of this Article offers examples of prosecutors' categorical declination policies, emphasizing that prosecutors who hold differing political views have invoked similarly broad declination authority. Part III describes the influence of separation of powers concepts in some familiar accounts of declinations. Part IV then explores the prosecutor's duties to a statewide polity and explains the importance of linking declination policies to resource allocation in that context. Part V turns to the prosecutor's duties to a local polity and elaborates how those duties can reinforce the legitimacy of most declination policies. In the end, this Article concludes that these competing loyalties are compatible, and it is possible for prosecutors to answer to both state and local constituencies.

1. CATEGORICAL DECLINATION POLICIES

   The prosecutor's power to decline charges that the police recommend to them is centrally relevant to current debates about criminal justice reform. New declination policies form just one part of a larger suite of changes to the prosecutor's role that is now taking hold in some places. This different understanding of the job--described in some circles as progressive or reform prosecution--looks beyond the outcomes obtained in the criminal courts as a measure of success. These prosecutors aim to promote public safety through closer partnerships with the community, while shrinking the reach of the criminal courts and prisons. (16) This changed vision of the job affects the way that prosecutors' offices approach many tasks, including diversion programs, pretrial release, conviction integrity review, sentence severity review, reentry programs, and more. (17) But the charging practices of an office should appear near the top of any reformer's list. The mix of charges and declinations can reshape public safety at the local level more profoundly--and with less need for cooperation from other actors--than any other component of the prosecutor's work. (18)

   This Part places into context the typical practices American prosecutors employ when they decline charges in individual cases. Then it collects some recent examples of prosecutor office policies that call for declinations for entire categories of cases.

   1. CASE-LEVEL DECLINATIONS

      The decision of an individual prosecutor to decline charges in a single case is unremarkable, both in the United States and elsewhere. (19) Legal traditions around the world empower prosecutors to decline charges when they believe that the evidence does not support criminal proceedings. Prosecutors in some countries, such as Germany, operate within a...