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No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.

In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.

This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: At least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.

Beginning in the 1970s, politicians and the public began to view individuals who committed violent offenses as irredeemable dangers to the public whose incarceration was necessary to ensure the public’s safety. As a result, state legislators enacted sentencing statutes that increased the punishment of violent crimes, which include offenses such as murder, rape, and robbery. This Note explores what led lawmakers to adopt sentencing statutes that single out individuals convicted of committing violent offenses for enhanced punishment and then shows that those lawmakers operated on the basis of inaccurate or incomplete conceptions of violent crime. Drawing on recent sociological and other empirical work, it shows that there is no neat dividing line between people who commit violent and non-violent offenses and argues that lawmakers made their decisions on the basis of false or incomplete information. In response, this Note advocates for the elimination of sentencing statutes that impose enhanced sentences on individuals convicted of violent crimes. Lawmakers should instead determine the appropriate criminal punishment for those convicted of violent crimes through the holistic, evidence-based approach that has become popular in the last decade with respect to non-violent crimes.