By Justin Murray

The American prosecutor’s legitimacy faces unprecedented challenges. A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo. Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement. This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting marijuana possession or abortion offenses or seeking the death penalty.

This Article is the first to identify and critically examine the myth of individualized enforcement. It draws on a review of historical evidence and research on contemporary prosecutorial practices to show that prosecutors have long engaged in categorical nonenforcement in relation to vice laws, property offenses, and even certain areas of violent crime enforcement. By situating reformist prosecutors’ policies within this broader context, the Article exposes how the myth of individualized enforcement has been weaponized to delegitimize reform efforts while shielding conventional prosecutors from scrutiny.

The Article also excavates the deeper distinctions between reformist and conventional approaches to categorical nonenforcement that the myth of individualized enforcement serves to hide from view. Reformist prosecutors tend to adopt centralized, formal, and transparent nonenforcement policies that aim to redistribute the benefits of prosecutorial leniency to historically marginalized groups. Conventional prosecutors, in contrast, have often dispensed categorical leniency in an informal, covert manner and in contexts that tend to reproduce existing hierarchies of race, class, and gender. By surfacing these divergences, the Article aims to reorient academic and political discourse about prosecutorial reform toward the more constructive end of evaluating different visions of discretionary justice and the institutional structures that will best align prosecutorial power with democratic values.

WASH. U. L. REV. — (forthcoming 2025)

By Joanna R. Lampe

Federal law generally prohibits the production, distribution, and possession of marijuana for both medical
and recreational purposes. In April 2024, news outlets reported that the Drug Enforcement Administration
(DEA) planned to change the status of marijuana under the Controlled Substances Act (CSA) by moving
it from Schedule I to the less restrictive Schedule III. Such a move would relax some controls over
marijuana but would not immediately legalize medical or recreational use of marijuana under the CSA.
Notwithstanding the strict federal control of marijuana, in recent years, many states have repealed state
law criminal prohibitions on some marijuana-related activities, and medical and recreational cannabis
businesses now operate openly in some parts of the United States.
In response to the disparity between state and federal law, Congress has enacted appropriations legislation
prohibiting the Department of Justice (DOJ) from expending appropriated funds to prevent states from
implementing their own medical marijuana laws. Federal courts have interpreted the appropriations rider
to prohibit DOJ from bringing criminal drug prosecutions against certain persons and entities involved in
the state-legal medical marijuana industry, but they have differed as to the scope of conduct the rider
shields from prosecution.
This Legal Sidebar first outlines the legal status of marijuana under federal and state law. It then discusses
the medical marijuana appropriations rider and analyzes how federal courts have interpreted the
provision. The Sidebar closes with key considerations for Congress related to the appropriations rider and
the disparity between federal and state marijuana policy more generally.
Federal and State Marijuana Regulation
The plant Cannabis sativa L. and products derived from that plant have a number of uses and may be
subject to several overlapping legal regimes. In recent years, a significant divide has developed between
federal and state marijuana laws. On the federal side, the CSA imposes stringent regulations on the
cannabis plant and many of its derivatives. Activities involving controlled substances not authorized
under the CSA are federal crimes that may give rise to large fines and significant prison sentences.
Unless an exception applies, the CSA classifies cannabis and its derivatives as marijuana. Congress
classified marijuana as a Schedule I controlled substance when it enacted the CSA, reflecting a legislative

Washington, DC: Congressional Research Service, 2024. 5p.

By Becca Cadoff, Preeti Chauha, Erica Bond,

• Misdemeanor Arrest Rates: The misdemeanor arrest rates in all Research Network jurisdictions decreased in recent years. These declines often followed a period of significant increases in misdemeanor enforcement. • Misdemeanor Arrests by Race: Black people were arrested at the highest rates of any racial/ ethnic group for all jurisdictions across the entire study period. Racial disparities between Black people and White people existed in all jurisdictions, and these disparities persisted despite the recent overall declines in arrest rates. However, the magnitude of the disparities varied by jurisdiction and over time -- ranging from approximately three to seven arrests of Black people for one arrest of a White person. • Misdemeanor Arrests by Age: Arrest rates were highest for younger age groups (i.e., 18-20-year-olds and 21-24-year-olds) at the beginning of the study period. At the same time, arrest rates were generally much lower for the oldest age group (i.e., 35-65-year-olds). Over time, arrest rates for the younger age groups fell the most, sometimes to rates lower than 25-34-year-olds. • Misdemeanor Arrests by Sex: Males were arrested at higher rates than females in all jurisdictions across the study period. Although the arrest rates for males fell more than for females, this gender gap in arrest rates persisted over the study period. • Misdemeanor Arrests by Charge: Within the context of fluctuating misdemeanor arrests, the composition of misdemeanor charges changed over time across most sites. Cross-jurisdiction trends indicate a move away from more discretionary, drug-related charges and an increase in the share of charges where there is an identifiable complainant or victim (“person-related” offenses)….

New York: Data Collaborative for Justice (DCJ) at John Jay College of Criminal Justice , 2020. 34p.

By Bruce A. Green and Rebecca Roiphe

There is broad agreement that federal prosecutors should not use their power to pursue partisan political objectives, but there is stark disagreement about how to prevent them from abusing their power in this way. Geoffrey Berman, a former United States Attorney for the Southern District of New York, recently argued that U.S. Attorneys should have complete autonomy and independence from the Attorney General and administration. Attorney General Bill Barr, in contrast, has insisted that Attorneys General should have full control over prosecutors so the administration can be held politically accountable. Neither view fully addresses the problem. Barr minimizes the significant risk that the Attorney General will undermine the interests of justice by doing the bidding of the administration, and Berman ignores the possibility that U.S. Attorneys will act on their own inappropriate political bias.

We propose a system of checks and balances in which prosecuting a politically sensitive case would require approval from both the Attorney General and the U.S. Attorney. Recognizing Berman’s argument that the greatest threat of politicization comes from the Attorney General, we offer two additional proposals to help preserve the independence and integrity of U.S. Attorneys. First, Congress should clarify that the President and Attorney General lack authority to remove and replace U.S. Attorneys who are appointed by district courts prior to the confirmation of presidential nominees; and second, the Attorney General should be restricted from handpicking partisan prosecutors to oversee politically-charged investigations and prosecutions. While there is no simple solution to the politicization of federal prosecution, restructuring prosecutorial and political power within the DOJ to reduce partisanship, both real and apparent, is, as Berman recognizes, an important component

 Denver Law Review, Vol. 100, No. 2, 2023, NYLS Legal Studies Research Paper No. 4373301

By Helen Mills, Matt Ford and Roger Grimshaw

The usual suspects uses national data to assess the use of joint enterprise laws in prosecutions and convictions for serious violence in England and Wales over the last fifteen years. It is the first publication to track information over this significant period of years, and features up-todate figures inclusive of the period post the 2016 Supreme Court judgment, which ruled the law had taken‘a wrong turn’ for more than thirty years. In this report we use the best available data to answer questions about the scope, demographics and changes over time in the use of joint enterprise. Until it is routinely recorded when a prosecution and conviction relied on joint enterprise or secondary liability laws, these approximations are the best available sources to address such important questions.  

London: Centre for Crime and Justice Studies 2022. 24p.

By Kristina Gray, Rachael Finn, Joanna Gent & Kezia Huttlestone

A pre-sentence report is advice given to the court following the facts of the case, expert risks and needs assessments, including an independent sentencing proposal and additional relevant information. They must be as objective as possible and exist to assist the judiciary with sentencing.

The number of pre-sentence reports written in England and Wales has decreased in recent years. This was an area of concern in the 2020 white paper, A Smarter Approach to Sentencing, which stated that “The purpose of a pre-sentence report (PSR) is to facilitate the administration of justice, and to reduce an offender’s likelihood of reoffending and to protect the public and/or victim(s) from further harm. A PSR does this by assisting the court to determine the most suitable method of sentencing an offender (Criminal Justice Act 2003, section 158)”.

London: UK Ministry of Justice 2023. 54p.

By The Scottish Government,  HM Inspectorate of Prosecution in Scotland

he aim of this review was to assess the operation and impact of diversion from prosecution in Scotland. We sought to provide an overview of diversion practice from a policing, prosecution and justice social work perspective, highlight what is working well and explore any barriers to the more effective use of diversion. The review was carried out by HM Inspectorate of Constabulary in Scotland, HM Inspectorate of Prosecution in Scotland, the Care Inspectorate and HM Inspectorate of Prisons for Scotland. Given that effective partnership working is essential to the delivery of diversion, we considered that a similarly collaborative approach was required for its scrutiny.

The number of diversion from prosecution cases commenced rose by 12% between 2019-20 and 2020-21, the highest level in the last seven years. This rise is likely linked to changes in prosecution policy in 2019. Prosecution policy now states that diversion should be considered for all people where there is an identifiable need that has contributed to their offending and which can best be met through diversion. For children under the age of 18 in particular, there is a presumption that an alternative to prosecution will be in the public interest. More broadly, there has been a shift in public policy in recent years, with a greater focus on community justice and early intervention to address the underlying causes of offending.

We welcome this shift in focus as well as plans to optimise the use of diversion even further. Many accused persons require support for mental health, substance use or other issues and diversion from prosecution offers an opportunity for that support to be provided swiftly. Early intervention can help address the underlying causes of offending, avoid the person being drawn further into the criminal justice system and reduce or prevent further offending, to the benefit of the person, victims and communities. We therefore welcome the efforts made by a range of agencies involved in diversion at a national and local level to encourage greater use of diversion, to work in partnership and to deliver effective interventions.

Glasgow: HM Inspectorate of Prosecution in Scotland , 2023. 78p.

By  Besiki Luka Kutateladze; et al.

One of the key decisions that prosecutors make is whether or not to file charges against a defendant. Depending on the office, this decision point may be called initial case assessment, screening, review, or filing. Prosecutors, or in some instances paralegals, review evidence provided by law enforcement and decide whether to file any charges in each case. The core purpose of case screening is to identify and eliminate cases that cannot or should not be prosecuted. In other words, prosecutors have the difficult task of assessing limited case facts in front of them and rejecting cases 1) that do not involve enough evidence to support a conviction, and 2) for which prosecution would not be in the best interest of justice and victims. The decision to reject a case is highly consequential because it means that the defendant will avoid formal charges and conviction. Cases can also be dismissed after they are filed. While judges can dismiss cases— due, e.g., to missing case processing deadlines or 4th amendment violations—most dismissal decisions are made by prosecutors. Cases may be dismissed by a prosecutor due to evidentiary issues (including victim or witness cooperation) or plea negotiations in other cases, for example. PPI 2.1 examines the relationship between these two highly discretionary case outcomes: case rejection and case dismissal. While there is no agreed-upon standard for what proportion of referred cases should be rejected for prosecution, or what proportion of filed cases should be dismissed, we suspect that these proportions will vary across jurisdictions and by offense types. 

Prosecutorial Performance Indicators , 2022. 12p.

Amanda Y. Agan, Jennifer L. Doleac & Anna Harvey

Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses, yet there is little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should be prosecuted in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, non-prosecution of a nonviolent misdemeanor offense leads to a 53% reduction in the likelihood of a new criminal complaint, and to a 60% reduction in the number of new criminal complaints, over the next two years. These local average treatment effects are largest for defendants without prior criminal records, suggesting that averting criminal record acquisition is an important mechanism driving our findings. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for nonviolent misdemeanor offenses had similar beneficial effects, decreasing the likelihood of subsequent criminal justice involvement

Cambridge, MA: National Bureau of Economic Research, 2022. 103p.

By Lauren Magee, Travis Carter, and Edmund F. McGarrell

In an effort to reduce the number of fatal and nonfatal shootings in Detroit, the Wayne County Prosecutor’s Office (WCPO), working closely with the Detroit Police Department (DPD), developed an innovative approach to the investigation and prosecution of nonfatal shootings. The innovation involved the use of a One-Person Grand Jury focused specifically on nonfatal shootings. The One-Person Grand Jury was considered an investigatory resource that could increase the cooperation of shooting victims and witnesses. The grand jury provided victims and witnesses a safe environment in which to provide testimony they might otherwise be reluctant to provide. The short-term goals included the preservation of testimonial evidence that would result in identification, arrest, and conviction of perpetrators of nonfatal shooting incidents. The mission of the WCPO’s Violent Crime Unit: The mission of The Violent Crime Unit Is to ensure that Justice Is served by utilizing a non-traditional approach to the reduction of violent crime. This collaborative effort utilizes a combination of special judicial proceedings, vertical prosecution, crime analysis, social media analysis, and witness protection to target violent gangs and offenders that drive violent crime. The longer-term goal was to reduce shootings. The rationale was that building stronger cases would lead to an increase in arrests and better cases for court; future shootings would be prevented through two causal mechanisms. First, high risk individuals (shooters) would be more likely to be convicted and sentenced to a period of incarceration during which they would be unable to re-offend within the community (incapacitation effect). Second, the perceived risk of sanction among potential shooters would be increased (deterrence effect). Essentially, by holding shooters accountable at a higher rate than historically has been the case, there should be a reduction in shootings. Additionally, given that nonfatal shootings have historically had low levels of clearance by arrest and closure through prosecution, the focused attention of the OnePerson Grand Jury might have an additional effect of increasing the perceived legitimacy of police and prosecution by residents of neighborhoods affected by shootings through the effort to hold shooters accountable. Complementing the One-Person Grand Jury was increased cooperation and coordination among prosecutors and police investigators whereby designated prosecutors were available (via phone) to consult with police investigators at the scene of a nonfatal shooting. The intent was to provide prosecution resources to investigators, including the legal process of the One-Person Grand Jury, to enhance investigations and case preparation.

East Lansing, MI: Michigan Justice Statistics Center, School of Criminal Justice, Michigan State University, 2021. 31p.