Prosecutorial Nonenforcement and Residual Criminalization
55 Pages Posted: 25 Feb 2022
Date Written: February 21, 2022
In recent years a small but influential group of locally elected prosecutors committed to criminal justice reform have openly refused to enforce various criminal laws—laws prohibiting marijuana possession, sentence enhancements, laws authorizing the death penalty, and much more—because they see those laws as unjust and incompatible with core reform objectives. Condemned by many on the political right for allegedly usurping the legislature’s lawmaking role and praised by many on the left for bypassing dysfunctional state legislatures in favor of local solutions, these prosecutorial nonenforcement policies are commonly said to have the same effect as nullifying, or even repealing, the laws that they leave unenforced. Yet this idea—the idea that prosecutorial nonenforcement is functionally equivalent to the nullification or repeal of statutory law—is deeply mistaken. This Essay shows why. It uncovers a number of underappreciated mechanisms through which criminal laws may continue to get enforced or to structure social relations despite a district attorney’s policy against enforcing them, producing what this Essay calls residual criminalization. The Essay also explains why grappling with this phenomenon of residual criminalization can help reframe ongoing discussions concerning prosecutorial nonenforcement by, on one hand, deflating certain prominent objections to nonenforcement and, on the other hand, revealing that nonenforcement cannot by itself satisfy criminal justice reformers’ deeper aspirations.
Keywords: prosecutors, mass incarceration, discretion, criminal justice reform, enforcement, nonenforcement, declination, dismissal, charging, criminalization
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