The title of this post is the title of this new article authored by Carissa Byrne Hessick and Meighan Parsh now available via SSRN. Here is its abstract:
The academic literature on prosecutors is divided: Some commentors believe that prosecutors should use their ability to decline to bring charges more aggressively, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and to public safety. While the visibility of this debate has increased-spilling over from the pages of law reviews into political campaigns and headlines-the terms of that debate are, at times, unclear. Prosecutorial nonenforcement is a multi-faceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs between important values and principles.
This Article brings much needed nuance to the debate surrounding prosecutorial nonenforcement. It provides a three-tiered taxonomy of nonenforcement decisions, identifying different nonenforcement methods, justifications, and decisionmakers. It also explains how different features of nonenforcement implicate conflicting values, such as individualization and consistency. By providing this taxonomy and highlighting these tradeoffs, the Article seeks to improve the terms of the debate surrounding prosecutorial nonenforcement. In so doing, it demonstrates that, although abstract discussions about nonenforcement can be valuable, they are no substitute for an assessment of the substance of those decisions.