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

Published date01 April 2023
Date01 April 2023
Subject MatterArticles
Criminal Justice Policy Review
2023, Vol. 34(3) 211 –235
© The Author(s) 2023
Article reuse guidelines:
DOI: 10.1177/08874034221150639
When Prosecution Is
Declined: Factors Influencing
Prosecutorial Portrayal of
Officers Involved in Shootings
Jacob Herrera1 and Lonnie Schaible1
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.
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
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;

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