Police make more than eleven million arrests every year. Yet prosecutors dismiss about 25% of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet prosecutors’ offices almost never dictate who the police should or should not arrest. Based on interviews with forty prosecutors’ offices across the country, this Article describes how police—not prosecutors— call the shots about who is input into the criminal justice system.
This Article makes a counter-intuitive argument: we should be giving prosecutors more power so they can better protect innocent defendants. Prosecutors should be responsible for approving or rejecting all warrantless arrests. Early prosecutorial case screening will benefit individuals by preventing unnecessary arrests, which in turn will reduce embarrassing mug shots, unnecessary bail, loss of employment due to pretrial incarceration, and wrongful convictions. Avoiding unnecessary arrests will also reduce jail overcrowding and reduce the burden on judges, clerks, prosecutors, public defenders, and even the police. At present, prosecutorial screening of arrests has been implemented in only a handful of jurisdictions. Prosecutorial prescreening can and should be dramatically expanded across the country to improve the efficiency of the criminal justice system and prevent myriad harms to criminal suspects.
2019 University of Illinois Law Review 833-873
Gershowitz, Adam M., "Justice on the Line: Prosecutorial Screening Before Arrest" (2019). Faculty Publications. 1924.