Prosecutorial Declination Statements

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void.

First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, and history-keeping—and their drawbacks. Next, it describes the current landscape of prosecutorial policies and practices on declination statements and shows how prosecutors would benefit from a more express framework of analysis. Finally, it offers such a framework to assist prosecutors in deciding when and how to issue declination statements. That framework suggests that prosecutors should only issue public declination statements when doing so significantly furthers one or more of the interests identified herein, where the risks posed by such statements are minimized, and where their value cannot be realized through other available means, including other types of statements.