Authors

Meighan R. Parsh, North Carolina Department of Justice
Carissa Byrne Hessick, University of North Carolina School of Law

The Nuances of Prosecutorial Nonenforcement

Abstract

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, 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 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 this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted 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: the method of nonenforcement, the justification for nonenforcement, and the identity of nonenforcement decision makers. 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.

Repository Citation

Meighan R. Parsh and Carissa Byrne Hessick, The Nuances of Prosecutorial Nonenforcement, 67 Wm. & Mary L. Rev. 399 (2025), https://scholarship.law.wm.edu/wmlr/vol67/iss2/3