No-Drop Prosecution Essay

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Prosecutors are said to drop charges when they decline to prosecute, or nolle prosequi, a previously filed case, prior to trial. By extension, it is commonly said that victims of intimate partner violence drop charges when they cause criminal charges against abusers to be dismissed, either by a request to the prosecutor or by their unwillingness to participate in criminal proceedings. A no-drop prosecution policy prohibits prosecutors from dismissing charges and thereby denies victims the opportunity to drop charges.

No-drop prosecution has been advocated for cases of domestic violence as a means of ensuring that criminal justice runs its course from arrest through judicial processing. Taken literally, the policy limits the discretion of prosecutors to dispose of cases without holding a defendant accountable. It may be held out as part of a prosecutor’s public stance favoring mandatory prosecution or as a commitment to ensuring that cases of domestic violence get their day in court. In practice, the policy is less a mandate for prosecutors than a tool for ensuring that victims are afforded the protection of criminal justice. It is meant to demonstrate that the crime is a crime against the state, that prosecutors have a duty to pursue charges, and that it will do no good for a defendant to coerce his or her victim into dropping charges, as the victim has no control over the case.

There are jurisdictions in the United States where prosecutors are so committed to this policy that they will coerce victim participation in the prosecution of a case by threatening the victim with possible arrest should he or she fail to appear in court when subpoenaed. Such a hard no-drop policy may have the effect of serving to deter prospective batterers from abusing their partners for fear that they will find themselves in a system dedicated to prosecution, irrespective of victim wishes. In reality, however, many prosecutors understand that victims could be endangered if coerced to participate in the prosecution, and so they are allowed to drop charges.

A soft no-drop policy is one under which a prosecutor publicly proclaims that, once filed, charges will not be dropped, but the prosecutor then takes into account each victim’s special circumstances in determining how best to respond to the victim’s request to drop charges. A soft no-drop policy acknowledges that prosecution may jeopardize the victim or the victim’s family. Thus, it respects each victim’s understanding of her or his own safety, even as it supports the potential for general deterrence, because the no-drop public stance serves to notify abusers of the prosecutor’s resolve to pursue domestic violence as a serious crime.

No-drop prosecution is a particularly contentious issue. It seems to pit prosecutors’ representation of state interests in justice and accountability against victim expectations for personal justice and protection. Prosecutors act as attorneys for the state with a responsibility to seek justice on behalf of its citizens. It may be that no-drop prosecution is a general deterrent to domestic violence, but extant research challenges the assumption that no-drop prosecution will protect a specific victim from continuing violence. Further research is needed to explore the full range of impacts that no-drop prosecution has in protecting both victims who seek safety through prosecution and those who expect the criminal justice system to reduce the risk of intimate partner violence in the population at large.

Bibliography:

  1. Ford, D. A. (2003). Coercing victim participation in domestic violence prosecutions. Journal of Interpersonal Violence, 18, 669–684.
  2. Wills, D. (1997). Domestic violence: The case for aggressive prosecution. UCLA Women’s Law Journal, 7, 173–182.

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