Legal Guilt, Normative Innocence, and The Equitable Decision Not to Prosecute

72 Pages Posted: 12 Mar 2010 Last revised: 12 Dec 2010

See all articles by Josh Bowers

Josh Bowers

University of Virginia School of Law

Date Written: June 3, 2010


Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative reasons, and equitable reasons. The conventional wisdom is that prosecutors are best positioned to evaluate these reasons. Consequently, prosecutors are granted almost unfettered charging discretion. More narrowly, when prosecutors decline or pursue charges for equitable reasons, they exercise their prerogative unchecked. This is defensible only if prosecutors are most competent to exercise equitable discretion. That question is almost never asked or critically analyzed. Instead, case law and commentators justify prevailing institutional design with reference only to uncontroversial understandings that prosecutors know most about legal merits and strategic priorities. In fact, several reasons exist to believe that prosecutors are ill suited to consider the normative merits of potential charges. First, professional prosecutors fail sufficiently to individualize cases, lumping them instead into legal boxes. Second, professional prosecutors prioritize institutional concerns over equitable particulars. Notably, prosecutors are least competent to adequately consider the equities in the precise types of cases in which commonsense discretion matters most. Specifically, in the petty-crime context, absolute enforcement of expansive code law is both undesirable and impossible, and, consequently, measured exercises of equitable discretion are warranted and anticipated. Put simply, petty-crime enforcement should turn on thoughtful evaluation of equitable considerations, such as relative blameworthiness. Legal guilt, by contrast, is often peripheral (or, in any event, presumed). In this way, easy legal cases may raise tough normative questions. And prosecutors have no special claim to know the answers, as the novel data that I provide help to show.

Keywords: prosecutorial discretion, charging discretion, equity, particularism, petty crime, public-order crime, overcriminalization, order-maintenance policing, broken-windows theory

Suggested Citation

Bowers, Josh, Legal Guilt, Normative Innocence, and The Equitable Decision Not to Prosecute (June 3, 2010). Columbia Law Review, Vol. 110, No. 7, November 2010, Virginia Public Law and Legal Theory Research Paper No. 2010-16, Available at SSRN:

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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