“Can Prosecutorial Declination End Overincarceration?”

The title of this post is the title of this recent article available via SSRN authored by Shima Baradaran Baughman. Here is its abstract:

We know very little about why prosecutors charge a given case, how frequently they charge, and why they decline to charge cases.  Scholars have discussed this issue despite the acknowledged “black box” around this question.  Some have recently argued that progressive prosecution has influenced prosecutors to decline more cases.  Others discuss rates of individual state and federal declination — showing high rates particularly for federal districts.  One scholar has suggested that private prosecution might be the only viable alternative to public prosecution.  Overall crime has certainly gone down in the U.S. and arrests have also dropped.  But prosecutors have not necessarily reduced charging in commensurate ways.  Given what we know about mass incarceration and prosecutors’ inordinate ability to exercise discretion in the criminal process, are prosecutors inclined to decline cases?  What might factor in their decision?

This Article focuses on the largest national field experiment on prosecutors to provide some insight to how American prosecutors might analyze and decide to charge a given case.  In some respects, the data are insightful because they take away any resource constraints or evidentiary limitations in charging a case.  The data show that prosecutors, when given the opportunity, would almost always charge a case — even when many factors indicate that they should do otherwise.  What this national data tells us about prosecutorial charging and declination may demonstrate that we have not made as much “progress” in terms of prosecution as we might have hoped. Declining to charge might never be a prosecutorial tool to end mass incarceration.