When Prosecution Is Declined: Factors Influencing Prosecutorial Portrayal of Officers Involved in Shootings

• Author: Jacob Herrera,Lonnie Schaible
• DOI: http://doi.org/10.1177/08874034221150639
• Published date: 01 April 2023
• Date: 01 April 2023
• Subject Matter: Articles

https://doi.org/10.1177/08874034221150639

Criminal Justice Policy Review

2023, Vol. 34(3) 211 –235

© The Author(s) 2023

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/08874034221150639

journals.sagepub.com/home/cjp

Article

When Prosecution Is

Declined: Factors Influencing

Prosecutorial Portrayal of

Officers Involved in Shootings

Jacob Herrera1 and Lonnie Schaible1

Abstract

Using District Attorney Declination Letters of officer-involved shootings in Denver,

Colorado between 2000 and 2020 (N = 132) and drawing on the Narrative Policy

Framework, this study examined how prosecutors use of narrative strategies

varied with legal and extra-legal characteristics of shooting. Findings indicated that

prosecutors were more likely to likely to praise police shootings involving armed

subjects, independent witnesses, and injuries to officers. Surprisingly, prosecutors

were less likely to praise officers involved in the shooting of African American subjects,

unarmed suspects, and in shootings involving a standoff. Findings suggest that while

prosecutors largely draw upon legal criteria to justify not prosecuting police, their

narrative accounts of declining to pursue criminal charges are also sensitive to extra-

legal variables. Implications for theory, practice, and research are discussed.

Keywords

officer-involved shootings, prosecutors

Prosecutors are a lynchpin in the justice system and play an essential role in reviewing

questionable uses of police force and determining whether charges should be pursued

(Bellin, 2019). Although the outcomes of prosecutorial discretion have been examined

for other crimes (Radelet & Pierce, 1985), little theoretical or empirical work has

examined prosecutorial decision-making or rhetoric with regards to the handling of

officer-involved shootings.

1University of Colorado–Denver, USA

Corresponding Author:

Jacob Herrera, University of Colorado–Denver, 1380 Lawrence Street, #500, Denver, CO 80204, USA.

Email: Jacob.Herrera@ucdenver.edu

1150639CJPXXX10.1177/08874034221150639Criminal Justice Policy ReviewHerrera and Schaible

research-article2023

212 Criminal Justice Policy Review 34(3)

It has been observed that prosecution of police for officer-involved shootings is

exceedingly rare (Holmes et al., 2019; Jacobi, 2000; Kindy & Kelly, 2015; Stinson,

2017). A variety of factors likely contribute to this, including: interdependencies with

police (Cheh, 1996; Kobler, 1975), low probability of conviction from “downstream

pressures” (Frohmann, 1997; Klockars, 1996), or the absence of clear review over

prosecutorial discretion (Levine, 2016a, 2016b; Sarat & Clarke, 2008). When explana-

tions are provided for declining charges, prosecutors often narrowly focus on legal

elements; however, prosecutors may also deploy narratives to satisfy various stake-

holders and bolster support or preempt criticism (Roth, 2020).

The present paper examines how prosecutors frame the declination of charges

against police through District Attorney Decision Letters (DADLs) for 132 officer-

involved shootings in Denver, Colorado between 2000 and 2020. In declination letters,

prosecutors speak to the legal elements and broader circumstances of cases that are

being declined for prosecution (Hammonds et al., 2016; Mosby, 2020; Roth, 2020). In

doing so, they construct a narrative account of why prosecution of officers was not

pursued. Applying the Narrative Policy Framework (NPF), we analyze how prosecu-

tors utilize objective situational, procedural, and legal justifications alongside subjec-

tive framing of officers’ character and behavior to justify their decision not to charge

during a critical period of change in the policy landscape of police accountability (S.

E. Walker & Archbold, 2013). The present study examines the degree to which various

factors influence the degree of “Devil Shift” and “Angel Shift” in prosecutors’ por-

trayal of officers involved in shootings. In doing so, the present analysis sheds further

light on prosecutorial perceptions of officer-involved shootings, how objective and

subjective factors contribute to these, and how prosecutors’ public justifications and

statements for not charging officers shift in accordance.

Prosecutors as Key Public Policy Actors in the Police

Accountability Arena

As gatekeepers between criminal charges and adjudication, prosecutors wield a sig-

nificant amount of power relative to other players in the criminal justice process (Sarat

& Clarke, 2008). Moreover, prosecutors benefit from wide discretion, but this discre-

tion is also heavily conditioned by interdependencies with other actors. As a part of the

“courtroom workgroup” prosecutors maintain close relationships with police because

they are required to work closely in the prosecution of crimes (Blumberg, 1967;

Eisenstein & Jacob, 1977; Metcalfe, 2016; Skolnick, 1967). However, as elected offi-

cials, prosecutors’ prioritization of cases is also influenced by political concerns

(Bellin, 2019). Both factors likely have a substantial impact on prosecutorial decisions

and accountability of police.

As the only entities capable of bringing criminal charges against police abuses,

prosecutors figure prominently in efforts to promote police accountability. At the same

time, prosecution of police at the local level has been exceedingly rare, usually only

being pursued in the most unambiguous situations (Holmes et al., 2019; Jacobi, 2000;