Daley & Carruthers on Prosecutorial Blanket Declination Policies

Alyssa Shea Daley and Jacob Carruthers (Ohio State University (OSU), Michael E. Moritz College of Law, Students and affiliation not provided to SSRN) have posted Judicial Review of Prosecutorial Blanket Declination Policies (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

Across the country, prosecutors are creating directives that foreclose prosecution of particular crimes. These directives can go by many names, but we will refer to them as blanket declination policies (“BDPs”). BDPs are a primary reason that the criminal justice reform movement continues to focus on prosecutorial elections as a means for reform. It is not difficult to understand why: in an era of historic political polarization, legislating is difficult, and BDPs offer an opportunity for reform advocates to avoid what some may consider dysfunctional legislatures. This Note argues that BDPs produce an inherently corrosive effect on the rule of law and separation of powers. This Note also proposes a means by which the judiciary can effectively monitor executive overreach, without the judiciary itself venturing beyond its circumscribed power.

BDPs turn a government of laws into a government of individual prosecutors. Our discussion does not take any position on the desirability of the policies or reforms underlying a BDP. Our concern is not the ends; we wish to explain why the means matter. Part I explores the nature of prosecutorial action and why BDPs are outside of executive power. Part II explains why judicial review of BDPs is appropriate. Part III then lays out a judicial test for determining the legitimacy of BDPs and demonstrates the test’s application through examples.