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.

Additional Downloads


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.


Bail Community Engagement Crime Data Analysis Featured Jurisdictions Human Toll of Jail Jail Populations Pretrial and Bail Pretrial and Jails Pretrial Justice Pretrial Services Racial Disparities July 1, 2022

Expanding Supervised Release in New York City

Safety and Justice Challenge, Center for Court Innovation

In 2015, the John D. and Catherine T. MacArthur Foundation launched the Safety and Justice Challenge (SJC), a multi-year initiative to reduce populations and racial disparities in American jails. To advance knowledge development grounded in a research agenda that explores, evaluates, and documents site-specific strategies to safely and effectively reduce jail populations and address racial and ethnic disparities, the Foundation engaged the Institute for State & Local Governance (ISLG) at the City University of New York (CUNY) to establish and oversee an SJC Research Consortium. Consortium members are nationally renowned research, policy, and academic organizations collaborating with SJC sites to build an evidence base focused on pretrial reform efforts.

Under New York City’s Supervised Release Program (SRP) individuals awaiting trial are released under community supervision to ensure their return to court, instead of via bail or pretrial detention. Defendants are eligible for the citywide SRP if they meet specific criteria, including arrest charge type, estimated risk status, and community ties. Towards the goal of reducing the jail population, New York City expanded the City’s Supervised Release Program (SRP) several times by altering the eligibility criteria to include a wider range of individuals. The first large expansion of SRP since 2016 occurred at the beginning of June 2019. A subsequent program expansion occurred in December 2019 as New York State prepared for 2020 bail reform legislation to go into effect.

In an effort to better understand the impact of expansion of SRP as a jail-reduction strategy, ISLG and the SJC Research Consortium funded the Center for Court Innovation to examine the impact of the June 2019 expansion. The Center conducted a time series analysis to determine if observed post-expansion SRP enrollment and/or detention rates significantly differed from predicted rates. The study found that the expansion increased SRP rates across racial groups and reduced detention for non-violent felony offenses, though not for misdemeanor offenses. In addition, the findings show increased use of SRP for misdemeanor offenses, which may suggest net-widening.

Key takeaways:

  1. Increasing program participation does not always decrease detention. For small program expansions (like the 2019 expansion) to have a true impact on detention, these initiatives must target serious crimes that are likely to be detained.

  2. Large changes are needed for large impact. Larger expansions, especially those that are driven by legislative change (like the December 2019 expansion in preparation for bail reform), can have a greater impact on detention compared to smaller expansions.

  3. Targeted efforts to reduce racial disparities are necessary. Disparities are not automatically impacted by increasing program participation and decreasing detention across the board. To reduce racial disparities, targeted efforts must be made.

Together, the findings suggest that the SRP expansion reduced detention for some offenses and highlight the importance of measuring the impact of program implementation and expansion to inform future work and jail reduction efforts in New York City and other jurisdictions.


Diversion Featured Jurisdictions Jail Populations May 26, 2022

Examining The Impacts Of Arrest Deflection Strategies On Jail Reduction Efforts

Shannon Magnuson, Cherrell Green, Amy Dezember, Brian Lovins—Justice System Partners

In 2015, the John D. and Catherine T. MacArthur Foundation launched the Safety and Justice Challenge (SJC), a multi-year initiative to reduce populations and racial disparities in American jails. To advance knowledge development grounded in a research agenda that explores, evaluates, and documents site-specific strategies to safely and effectively reduce jail populations and address racial and ethnic disparities, the Foundation engaged the Institute for State & Local Governance (ISLG) at the City University of New York (CUNY) to establish and oversee an SJC Research Consortium. Consortium members are nationally renowned research, policy, and academic organizations collaborating with SJC sites to build an evidence base focused on pretrial reform efforts.

Reducing jail populations and the collateral consequences of the legal system requires jurisdictions to critically examine the practices bringing these populations through the criminal legal system's front door. It requires implementing opportunities to reduce reliance on citation or arrest/booking, especially for populations with serious mental health disorders (SMHD) or substance use disorders (SUD), while also providing individuals the help and referrals they need to be well. Police-led deflection allows police officers discretion to replace arrest with outreach to community-based service providers. In an effort to learn more about how police-led deflection strategies operate, ISLG funded Justice System Partners to conduct mixed-methods studies of deflection strategies in two SJC sites.

Using administrative data from local crisis centers and interviews with police officers in Pima County, AZ and Charleston County, SC, this mixed methods study aimed to understand how deflection of individuals with SMHD/SUD operates in both sites.

Key takeaways include:

  • A parallel treatment revolving door to the legal system revolving door, which acknowledges the challenges of treatment initiation and engagement and provides individuals with SMHD/SUD with a "no wrong door" policy. This creates enhanced opportunities for treatment while eliminating collateral consequences of the legal system and jail for these vulnerable populations.
  • Deflection first, arrest rare as both policy and principle connects vulnerable individuals to the services they need. At the same time, it lessens opportunities for implicit bias and non-clinical judgements about readiness for change to impact the decision to deflect.

In summary, when police departments deflect as the primary response, they no longer make access to treatment conditional or contingent. In both Charleston and Pima counties, an individual can agree to treatment, receive a police transport to the local crisis center, and then at the door decide not to enter with no legal consequences, meaning that the individual is not arrested for refusing to initiate treatment. The findings suggest support for the implementation of deflection strategies, as well as a need for agencies to critically examine inconsistencies in policies that may result in disparate outcomes. Ultimately, the study finds that deflection strategies can be used to facilitate access to the treatment revolving door, rather than the justice system revolving door.

Additional Downloads

Two Years Since George Floyd: The Challenge of Sustaining Momentum for Reform

By: Matt Davis

Community Engagement Featured Jurisdictions Racial Disparities May 25, 2022

Minneapolis Police Officer Derek Chauvin murdered George Floyd two years ago today on May 25, 2020. People protested racial injustice in the criminal justice system across the country and beyond, and as a result, some cities and counties pledged to make significant changes to law enforcement.

But in recent conversations with people involved with the MacArthur Foundation’s Safety and Justice Challenge (SJC), many reflected on how not enough has changed in the last two years and how the landscape for criminal justice reforms is now becoming more challenging. And yet, they also pointed to areas of progress.

Jose Bernal, an organizer with the Ella Baker Center in Oakland, California, was the SJC representative on San Francisco’s Reentry Council, where he was part of the movement that successfully worked for the closure in 2020 of a seismically unfit jail facility. Bernal said the COVID-19 pandemic, coupled with Mr. Floyd’s death, brought about a reckoning that helped close the jail. San Francisco’s Board of Supervisors had been talking about closing it since 1996, but the events of 2020 helped influence some supervisors to finally support the closure.

But since 2021, there has been a shift in how some people view the criminal justice system, Bernal said.

“In an ideal world, we want to believe that our elected officials are moved by data and facts. And, you know, there are a few that are,” Bernal said. “But right now, there is this very dangerous narrative moving us back towards the 1990s’ ‘tough on crime’ approach.”

Some people believe that we “don’t have enough police, law enforcement is under-resourced, and crime is out of control,” Bernal said. “And it’s a false narrative. The facts don’t substantiate it. Crime is actually at historic lows.”

“We should still be having the conversation about reinvesting that money into the community, but it’s not what you see in the headlines,” Bernal concluded.

Keith Smalls is a community representative and Co-Vice Chair of the Charleston County Criminal Justice Coordinating Council. He said the influx of new people into the movement for criminal justice reform following Mr. Floyd’s murder was welcomed. But the passion did not always help change policy, and in some cases, it provoked a backlash.

“Two years ago, a lot of new voices came into the movement for reform,” Smalls said. “A lot of passionate people lent their support and joined the front line for reform. But suddenly, when the protesting stopped, people took their passion home. What I tell people is that they were welcome to join the movement for reform then, but that they are even more welcome now. We need you.”

Smalls also reflected on how the criminal justice system continues to fail people, and how those who have experienced incarceration can help address these continuing problems. He recently delivered a Ted Talk in Charleston about the misnomer of calling it the “corrections” system. In the talk, he said his own experience in the criminal justice system helped him understand that it is not designed to rehabilitate.

“The system has never been designed for ‘correction,’” Smalls said. “The only people who can really show that to people at the decision-making table are people who have experienced incarceration.”

“Eighty-five percent of the people who go to prison come home. So, we should talk about what we’re making inside these systems. We get to a safer society by treating and rehabilitating people,” Smalls said.

The city council in Portland, Oregon—located in Multnomah County which is participating in the SJC—voted in 2020 to shrink the Police Bureau, but some advocates think accountability is still needed. Portland’s former Assistant Police Chief Kevin Modica believes there is more work ahead but that is optimistic.

“There have been some administrative rule changes and there is legislation moving now towards more accountability, but without a new movement for public safety reform, we’re still going to be living in the status quo. That’s going to show up in police interactions with Black boys and Black men on the street,” Modica said. “We’ve not done enough to engender a culture change. But I’m a lifelong reformist, and I do believe things will get better.”

Derrick Dawson is a National Organizer with Crossroads Antiracism Organizing and Training in Chicago. He is serving as a technical assistance provider to the SJC’s racial equity cohort in Cook County.

“Unfortunately, once George Floyd was murdered, everybody wanted a quick fix for systemic racism,” he said. “And quick fixes don’t work for systemic racism. In fact, every time we try to initiate one, we do more harm than good. It supports White supremacy. Because when quick fixes do not work, we’re allowed to say, ‘well, we tried that and it didn’t work, so why should we try?’ And that serves to reinforce the continuation of White supremacy, because now we have an excuse not to try anything new or different.”

Instead, Dawson said, it is important to strike the balance between starting somewhere and recognizing that there is a long way to go.

“In our work with the Cook County SJC team, for example, we’ve been very clear with everybody that this is a two-year project, and we have no delusions about solving the problem of systemic racism in two years. But we also recognize that we must start somewhere,” he said.

“There has been a growing understanding of the issues around systemic and institutional racism. The more folks that we can get to think about these issues systemically and institutionally, now, perhaps the next generation will have less of a slog than we have. Cook County and other systems are recognizing that we need to engage in the long-term work, otherwise we will be in the same place 20 or 30 years from now, as we are today.”