Do Prosecutorial Declination Trends Provide Hope For Reducing Mass Incarceration?

Keywords

prosecutorial discretion, declination, mass incarceration, criminal justice reform, prosecutors

Document Type

Law Review Article

Abstract

This Article examines prosecutorial declination—the decision not to bring charges despite sufficient evidence—and its potential role in addressing mass incarceration. Although prosecutors possess broad discretion and are frequently identified as key actors capable of reducing incarceration rates, little empirical evidence exists regarding how prosecutors actually make charging decisions. Drawing on the largest national field experiment involving prosecutors, this study analyzes how prosecutors respond when given discretion in borderline cases without evidentiary or resource constraints. The findings indicate that prosecutors overwhelmingly choose to charge rather than decline, even when factors suggest restraint may be appropriate. These results challenge claims that prosecutorial declination or progressive prosecution, standing alone, offers meaningful hope for reducing mass incarceration and suggest that structural reforms beyond individual charging discretion may be necessary.

Publisher

Gonzaga University School of Law

Rights

© 2025 Gonzaga University School of Law. Posted for discovery purposes; full text available via HeinOnline.

Publication Title

Gonzaga Law Review

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