By Kristine Denman and Ella Siegrist

Felony criminal cases in New Mexico progress through multiple steps. New Mexico has a two-tiered system. Cases are typically initiated in the lower courts and bound over to the district court for felony prosecution after a finding of probable cause. Not all cases are bound over, however, and whether adjudication occurs is dependent on decisions made along the way. These decisions influence the trajectory and outcomes of the case. Prosecutors play a key role in this process. They decide whether to file charges against a particular defendant in a criminal case; which charges to pursue; whether to file felony charges, and if so, whether to pursue a finding of probable cause via preliminary examination or grand jury (if available); and whether to offer a plea bargain. These prosecutorial decisions, though, are not the only factors that influence this trajectory. Other factors, including court resources, judicial decision-making, defense decisions, and witness cooperation all play a role. Further, restrictions imposed due to COVID-19 altered some court processes. All of these factors can also influence the time that it takes to reach resolution on a court case. The current report is a part of a multi-part study on criminal case progression in the state of New Mexico. This report tracks the progression and outcomes of a sample of felony court cases initiated in magistrate and metropolitan courts across the state between January of 2017 and June of 2021. It also explores time to disposition and how the charges associated with a case change as the case progresses through the courts. 

Albuquerque: New Mexico Statistical Analysis Center 2024. 86p.

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)