Report

Diversion Featured Jurisdictions Plea Bargains November 29, 2022

An Exploration of Prosecutorial Discretion in Plea Bargaining in Philadelphia

Andreea Matei, Lily Robin, Kelly Roberts Freeman, and Leigh Courtney

As we have come to reckon with our nation's overreliance on carceral punishment and the mass incarceration of people of color, particularly Black people, experts are turning to a key system point that is the primary method for resolving most criminal cases: plea bargaining. Plea bargaining involves negotiation between a prosecutor and, often, a defense provider on behalf of their client. Prosecutors hold a lot of discretion over how to proceed regarding plea bargains, including whether to offer a plea agreement, when to do so, and what they wish to offer. Despite the wide use of plea bargaining, little is known about the practice, largely because it happens outside of public view and little is documented by the key actors involved—prosecutors.

To better understand prosecutorial discretion in plea bargaining, the Urban Institute was funded by the MacArthur Foundation through the Safety and Justice Challenge (SJC) Research Consortium, which is managed by the CUNY Institute for State and Local Governance (ISLG), to conduct a study on plea bargaining policies, practices, and outcomes. The Philadelphia District Attorney's Office (DAO) agreed to partner with Urban to shed light on the inner workings of plea negotiations and how they are viewed by different parties involved in the process, including attorneys and people who accept pleas. The DAO's partnership provided a rare opportunity to learn more about prosecutorial decisionmaking in plea bargaining in a single office and how this could inform policy and practice more broadly. This unparalleled look into prosecutorial decisionmaking owes to the forthrightness of the assistant district attorneys (ADAs) we interviewed and surveyed. The DAO's cooperation made it possible for Urban's research team to read policies on plea offers, analyze a deidentified sample of the office's case files, and hear from the ADAs to learn more about their decisionmaking during plea negotiations. Notably, this report is an exploration of discretion in plea bargaining in one office, not an impact evaluation of policies.

In this report, we discuss findings from our exploratory single-site study, in which we used qualitative and quantitative data to answer research questions of interest. Our activities included a policy review; analysis of administrative data from 2018 to 2021; interviews with 11 Philadelphia ADAs, 9 defense providers, and 5 people who accepted pleas; a case file review of 115 cases; and a survey of 65 ADAs. Because prosecutorial discretion in plea bargaining is not well documented in data, the best way to learn about discretion is by speaking with prosecutors; thus, this report focuses primarily on our qualitative findings. We organized our findings by three main topics: policies and goals of plea bargaining, trends in plea offers and outcomes, and decisionmaking and perceptions of key actors. We end the report with a discussion of policy implications.

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Report

Diversion Plea Bargains Racial Disparities November 29, 2022

Exploring Plea Negotiation Processes and Outcomes in Milwaukee and St. Louis County

Don Stemen, Beth M. Huebner, Marisa Omori, Elizabeth Webster, Alessandra Early, and Luis Torres

Although guilty pleas are the modal method for criminal case resolution in the US, relatively little attention has been paid to the plea negotiation process. Research suggests that prosecutors drive plea decision-making; however, the decision process is largely hidden and informal. Consequently, little is known about the role that prosecutors and other criminal justice actors play across the process, and even less is known about how these mechanisms have changed over time, particularly during the COVID-19 pandemic. Unpacking these plea negotiation decisions are especially key to understanding racial and ethnic disparities in criminal case processing.

Funded as part of the John D. and Catherine T. MacArthur Foundation's Safety and Justice Challenge Research Consortium, the current study considers guilty plea negotiation processes and outcomes in Milwaukee County, Wisconsin, and St. Louis County, Missouri. Both offices are currently lead by reform-oriented attorneys, are are medium-sized offices serving urban and suburban jurisdictions. Over the long tenure of elected District Attorney John Chisholm in Milwaukee, the office has implemented innovative prosecution models such as community prosecution units and diversion programs. In St Louis, recently elected District Attorney Wesley Bell is the first Black person to hold the office, and he ran on a platform of ensuring equity in the system and reducing mass incarceration. The goal of the study is to explore how prosecutors and other court actors approach and make decisions surrounding the plea negotiation process, in addition to, investigating the factors that affect plea outcomes. The data used in this report include narratives from interviews with and surveys of local stakeholders including prosecutors, public defenders, judges, private attorneys, and system-involved persons. The report also centers on administrative data collected through agencies' case management systems for criminal cases filed in Milwaukee and St. Louis Counties through 2020.

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Why Law Enforcement Should Be Doing More Deflection as A Primary Response

By: Shannon Magnuson, Amy Dezember

Diversion Frequent Utilizers Interagency Collaboration August 17, 2022

New research by Justice System Partners supported by the MacArthur Foundation’s Safety and Justice Challenge (SJC) shows the positive impacts of police-led deflection strategies on jail reduction efforts. Overall, “deflection first, arrest rare” as a primary policy for eligible offenses helps reduce criminal legal system involvement and improve equity by connecting individuals to the services they need. It no longer makes access to treatment conditional or contingent on arrest.

Download the report here. 

Deflection is different from diversion. Diversion programs make use of pending criminal charges as the mechanism to elicit treatment initiation and compliance from people living with severe mental health disorders and substance use disorders. Although diversion programs do not always include a formal booking to jail, the person does technically enter the legal system’s front door. In contrast, deflection programs entail no criminal legal system involvement beyond the interaction with the police officer in the field. There is no mechanism to coerce treatment initiation or compliance beyond an individual’s own wishes to enter a program. If an individual ultimately decides not to participate in the program they are referred to, there are no legal consequences. Police-led deflection programs also provide police agencies an opportunity to return to the streets and answer calls from 911 more quickly because transporting individuals to community services can take substantially less time than booking an individual in jail. Combined, police-led deflection can make police agencies more efficient while eliminating the collateral consequences of the legal system on individuals.

Police-led deflection allows officers to use discretion to replace arrest with outreach to community-based service providers for select offenses. It transforms police contact into opportunities to broker community resources, especially for individuals with severe mental health disorders and substance use disorders. It is key that we understand how deflection programs work in practice if we are going to improve and expand these programs, reduce jail populations, and improve equity and access to care by connecting people to the help they need.

The goal of the research was to understand how deflection works in Pima County, AZ, and in Charleston County, SC—two SJC sites. We sought to understand how police make decisions about who to deflect and how deflection to a local crisis center impacts people’s subsequent experience. In 2011, Pima County built the Crisis Response Center (CRC) with county bond funds. It is part of the Banner-University of Arizona Medical Center South Campus. The CRC is a short-term inpatient unit with a maximum length of stay of five days and has a “no wrong door” policy – which means they accept nearly everyone, except individuals who require hospitalization, from any law enforcement agency in the county. Similarly, Charleston County runs the Tri-County Crisis Stabilization Center (TCSC) which is a ten-bed voluntary adult crisis center embedded within the Charleston Drug and Alcohol Center where individuals can stay up to 14 days. Both counties’ crisis centers provide immediate treatment options and psychiatric care for individuals.

In Pima County, when people receive at least two voluntary deflections to the local crisis center, they are more likely to continue agreeing to subsequent deflections and, each time they return to the crisis center, they stay longer. In Charleston County, two-thirds of individuals deflected to the local crisis center had a previous case with the county’s mental health department, showing that both police and service providers are often interacting with the same people. These findings suggest that police-led deflection can help connect or re-connect individuals with treatment while reducing the number of individuals who are brought to jail—effectively creating a parallel treatment open door. Importantly, these repeat access points to treatment reflect research that suggests people need multiple opportunities to access treatment services before agreeing and engaging with the program. In this way, police-led deflection, particularly for individuals who have disproportionate police contact, can transform pathways to jail into pathways to the help they need for individuals historically excluded from access.

A parallel treatment open door does not mean failure to initiate or complete treatment. The treatment open door acknowledges the complexity and nuance of treatment and reflects the research about the need for multiple opportunities to remain engaged. When police policy allows multiple deflections of the same individuals, as in Pima and Charleston Counties, it means every interaction with individuals is another opportunity to engage them in treatment while eliminating the collateral consequences of the legal system and jail for these vulnerable populations.

In both counties, if the offense is eligible, the policy allows police to offer deflection to an individual regardless of how many times they offered deflection to the individual in the past. This means that while the policy itself reflects the research on multiple opportunities to engage in treatment, police in practice have the ultimate decision-making authority to deflect or arrest. As a result, police hold a lot of decision-making power for triaging people out of the legal system revolving door, and into a treatment system revolving door. As we continue to unpack how officers make decisions about who to deflect and under what conditions, it is important to consider the intersection of race, gender, and disability and how that impacts officer decision-making about who is “worthy” of deflection.

Officers in Pima County reported people’s willingness to start treatment as the most critical factor when deciding to deflect to a community-based resource. When people did not want to initiate treatment, officers tended to rely on arrest, even when they knew that jail would not help the individual. But the ability to deflect for certain eligible offenses means that the police have determined that no arrest is an acceptable response. This tension demands a critical examination: If people do not wish to go into treatment, are there other ways officers can diffuse and handle the situation without relying on arrest?

Officers in Charleston County cited victims’ wishes—including those of business owners—as the most critical factor when deciding whether or not to begin the process of deflection. For example, when victims remain at the scene and want police to arrest the individual, even when the offense is deflection-eligible and the officer recognizes jail is not helpful, police expressed feeling inclined to defer to the victim and make the arrest, anyway. This means victims are, in part, driving who is offered deflection and potentially contributing to disparate deflections. As such, we must critically examine the role of victims in the deflection initiation process and consider how victims’ own perceptions of justice and implicit bias can temper the positive impact of police-led deflection programs.

“Deflection first, arrest rare” as both policy and principle connects vulnerable individuals, who are historically excluded from the services they need, with easy access to treatment. It also lessens opportunities for implicit bias, determinations of “worthiness,” and non-clinical judgments about readiness for change to impact the decision to deflect. When agencies distance themselves from jail and deflect as the primary response, and do so for everyone, they no longer make access to treatment conditional or contingent.

Conservative Jurisdictions Champion Pre-Arrest Diversion Strategies

By: Lisel Petis

Diversion Interagency Collaboration July 28, 2022

A new R Street Institute report supported by the MacArthur Foundation’s Safety and Justice Challenge explores the successful implementation of pre-arrest diversion strategies in three conservative communities. Such strategies respond to challenges facing law enforcement agencies across the country including staffing shortages, negative public perception, overpopulation in jails, increases in violent crime, and court backlogs.

While criminal justice reform can be a politically charged term, we found that several conservative jurisdictions champion pre-arrest diversion as a way to support law enforcement and to remain fiscally disciplined. These jurisdictions have prioritized police time and resources, enabling law enforcement to deal with serious crimes while simultaneously rebuilding community relationships. They have also effectively diverted low-level offenders while balancing individual rights and public safety. The paper spotlights three jurisdictions that employ at least one diversion strategy, and in so doing, reveals how the traditionally conservative values of public safety, fiscal responsibility, and limited government interference are at the core of such programs. The paper also explores how to overcome challenges around starting diversion programs.

Law Enforcement Assisted Diversion (LEAD)— Cheyenne, Wyoming

Police-initiated diversion gives officers the opportunity to refer someone to intensive case management outside the criminal justice system rather than cite or arrest the individual for a crime.

Laramie County, Wyo., where Cheyenne is located, has been particularly successful in implementing Law Enforcement Assisted Diversion (LEAD). The community explored this option after finding that prosecuting and jailing individuals with behavioral health needs was ineffective in improving public safety. Officials and professionals merely saw a “revolving door” of the same individuals. Further, Cheyenne had seen a steady increase of mental health calls, violent crimes, and overdose related deaths; they needed to try something different.

When the program first began, some officers were hesitant to refer individuals to LEAD. In fact, one lieutenant at the Cheyenne Police Department feared LEAD, “wasn’t holding people accountable and just allow[ed] people to screw up with no consequence.” But many officers gradually saw the positive results. The lieutenant who initially was a skeptic eventually became “all in.” Officers realized that even if individuals were being arrested, they returned to the streets upon release with no support or services in place to help them change behaviors, with many returning to drug use or other destructive activities. LEAD has been a positive step for these individuals. In fact, officers tracked how many contacts they were having with people who were frequently arrested and found after a LEAD referral, officers had not talked to many of these individuals in months. One individual said the LEAD program saved his family member’s life.

Co-responder Model— El Paso County, Colorado

Though police officers generally do not have the training to handle mental health crises, many communities rely upon police to handle such issues. In an effort to support law enforcement in these situations, many communities have implemented co-responder programs. In a co-responder model, a behavioral health clinician (and in some models, emergency medical personnel) accompany law enforcement on patrol.

The sheriff’s office in El Paso County, Co. formed their own co-responder program, the Behavioral Health Connect Unit (BHCON), in 2017 after realizing they needed to reduce jail intake rates. When researching how to reduce the jail population, they realized that a high number of incarcerated individuals suffered from mental health issues. The BHCON team now responds to mental health crisis calls as well as low-level crimes in which it is clear that the individual’s mental health crisis—rather than criminal intent—is the cause for the criminal act.

This immediate response to someone in crisis has resulted in a reduction of expensive arrests and jail admissions as well as a reduction in mandatory psychiatric holds (often referred to as a “72-hour hold”) that are often done in hospitals. In 2021, BHCON responded to 1,154 calls for service. From those calls, BHCON diverted 99 percent from jail and 85 percent from the emergency department. At a time when hospitals are having to divert patients (due largely to COVID-19), saving hospital space is essential. BHCON has also relieved law enforcement of having to rely on the jail as a de facto mental health facility when an individual does not meet the threshold for a mandatory psychiatric hold.

Community Responders— St. Petersburg, Florida

Too often, law enforcement is responding to noncriminal calls where their presence is not necessary. Community Responders (or Civilian Response) takes the co-responder model and removes the police officer entirely. That is, community responders divert individuals from the criminal justice system by having trained, non-law enforcement professionals respond to certain calls for service that do not require a gun and a badge.

This model is the most effective at reserving police resources for the most dangerous crimes while also lowering the potential of escalating a situation by removing the presence of law enforcement. Instead, dispatch alerts community responders who have backgrounds and specific training to help in situations where behavioral health and/or social concerns are the prominent issue.

In 2019, St. Petersburg’s police department partnered with a local nonprofit to form Community Assistance and Life Liaison (CALL). Under the CALL model, clinical staff and community navigators respond to calls such as panhandling, truancy, welfare checks, mental health holds, and disputes between neighbors. When initiating the program, the St. Petersburg Police Department believed such a program could respond to approximately 12,700 calls, diverting individuals from the criminal justice system.

Overcoming Challenges to Diversion

While law enforcement agencies and local elected officials seem to be open to the idea of diversion, many jurisdictions face hurdles when it comes to implementation. Even with proven success, available funding, and law enforcement buy-in, concerns of logistics, safety, and cost can create hurdles. The report focuses on ways these communities have overcome such challenges and shows it is time for other communities, of any political leaning, to support law enforcement in shutting down the inefficient revolving door of the criminal justice system. Ultimately, these pre-arrest diversion programs can and should be implemented to increase public safety, protect personal rights, and save taxpayer dollars.

Report

Diversion Featured Jurisdictions Plea Bargains Pretrial Services July 27, 2022

Reject or Dismiss? A Prosecutor’s Dilemma

Florida State University, Loyola University Chicago

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.

Local criminal justice systems should enable prosecutors to identify dismissible cases as early as possible. Eliminating dismissible cases at the screening stage reduces negative consequences for defendants, victims, and the criminal justice system. For defendants, the declination of dismissible cases reduces unnecessary pretrial detention, disturbances to family life and employment, and chances of wrongful conviction. For victims, identifying dismissible cases at filing minimizes the burden of involvement in the criminal justice system and avoids false expectations, though in some cases prosecution may provide victims with temporary protections they need. For the criminal justice apparatus, declining dismissible cases reduces caseloads and criminal justice expenditure.

In this report, we provide a rare compilation of data on screening and dismissal decisions from jurisdictions across the country. We explore case rejection and dismissal trends in 15 prosecutor’s offices before drilling down in these two important outcomes to examine variations across defendant race and offense type in select jurisdictions.

While reading this report, let’s keep in mind that there are marked jurisdictional differences that influence screening and dismissal decisions. For example, New York prosecutors typically have two days to file a case, while Florida allots several weeks for this decision. Furthermore, jurisdictions have adopted different COVID-19 regulations: some closed certain court operations for months, while others remained open. Yet others quickly moved operations virtually, as is still the case in Hennepin County. Lastly, what is counted as a rejection or dismissal may vary across jurisdictions: a dismissal in the interest of justice in Philadelphia might have been labeled a deferred prosecution in Milwaukee and therefore excluded from dismissal rate calculations. Given these differences, we encourage cross-site learning about rejection and dismissal practices, but not direct comparison.