The most contentious action taken by reform prosecutors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate. Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides. How should we think about democracy and categorical declinations? The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray. In this essay, I hope to continue the work begun by Murray, offering additional insights that bear on the relationship of categorical declinations and democracy. Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory—a vision of democracy that is extremely influential, but not taken up by Murray. Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination. State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures. Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined. Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law. The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.
