Prosecutors and their State and Local Polities

Ronald F. Wright | November 22, 2020

Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts. Duties to statewide voters derive from the fact that state legislatures create the criminal codes that prosecutors enforce. State government also funds some of the work of local prosecutors, but that funding is not sufficient to allow full enforcement of the criminal law. The state-level polity, therefore, empowers the local prosecutor to allocate scarce resources and to decline charges—even for entire categories of cases—as a means of promoting public safety that matches local conditions. Local prosecutors can meet their obligations to the statewide polity by framing their policies as rebuttable presumptions against filing charges and by justifying those policies as a reallocation of limited resources. Duties to the local polity can add further legitimacy to a prosecutor’s declination policy. Local views about the relative importance of crime should matter, particularly in circumstances where local governments fund aspects of court operations, the effects of crime and law enforcement are concentrated locally, and state law grants autonomy to the local prosecutor.