Topic: Prosecutors

Prosecutors are elected by voters to protect the safety and wellbeing of the communities they serve. Removing prosecutors from office can have a chilling effect on the rule of law. It blurs the separation of powers and upends the checks and balances the three branches of government were designed to ensure.

The removal of Florida State Attorney Monique Worrell from her elected prosecutor position is one recent example, but threats to prosecutorial independence are emerging nationwide. Georgia, Tennessee, and Texas have already passed laws making it easier to remove prosecutors from office, and currently there are more than 24 bills in 16 states that would limit the power of prosecutors.

Giving governors the authority to supersede the will of voters and oust a prosecutor impedes a prosecutor’s ability to make the best decisions for their communities and erodes the separation of powers that are central to our democracy. If a prosecutor’s job is at risk, they may be reluctant to adopt promising prosecutorial practices or exercise their discretion to make the tough calls that they believe are right for their communities.

Independence is central to a prosecutor’s ability to be effective, as what a governor or legislator may consider politically popular does not always advance the mission of prosecutors to ensure justice and the safety and wellbeing of their community.

The United States Supreme Court has a long history of validating the importance of prosecutorial independence—from the recent June ruling affirming the United States government’s prosecutorial discretion in immigration to the 1935 case of Berger v. United States, which stated the prosecutor’s “compelling obligation” is “not that it shall win a case, but that justice shall be done.”

America is a patchwork of nuanced law and procedure around prosecutorial independence, but the responsibility of elected prosecutors remains constant: to use the lawful discretion of their offices to hold individuals accountable for their actions, protect victims of crime, and work to improve the safety of their communities. Prosecutors should be held accountable for fulfilling these responsibilities, rather than to the political whims of an executive branch.

Each of the three branches of state government should operate independently and none should hold greater power than another. The ramifications of one branch having the power to remove an elected official of another branch, without due process, are far reaching. Should an attorney general have the power to single-handedly remove a governor? Or should a governor have the power to remove a legislator without an impeachment trial?

Our Prosecutorial Independence Policy Brief articulates the role and duties of the prosecutor as “ministers of justice,” and underscores the importance of prosecutorial decision-making and the exercise of discretion to ensure justice, fairness, accountability and community safety. The brief addresses the core tenets of our democracy, including the separation of powers.

The prosecutor’s duty is to fulfil their role as ministers of justice, promoting more equitable, safer, and more just communities. Prosecutorial independence ensures an important separation between politics and the criminal legal system necessary to create safer communities through a more just and equitable legal system.

–The Association of Prosecuting Attorneys is a strategic ally of the Safety and Justice Challenge to uplift practices that work to keep communities safe while lowering jail populations and reducing racial and ethnic disparities.

To meaningfully advance racial equity in the criminal legal system, representatives from all components of the justice system, people directly impacted, and partners at the local, state, and federal level have built a National Initiative to Advance Race Equity in the Criminal Legal System.

These stakeholders recognize that administering justice and making communities safer requires authentic community engagement and elevating the voices of people directly impacted by the criminal legal system, especially including justice-involved individuals and their families, victims, and survivors of crime.

A convening of the group was facilitated by persons with lived experience, and the development of this framework represents this authentic engagement and collaboration by representatives of the criminal legal system.

A consensus statement of principles with supporting rationale and background literature has been created to equip federal, state, and local legal system stakeholders to explore and pursue new approaches to building stronger relationships with communities and the broader legal system to advance racial equity and promote community safety and well-being. This document contains a unified statement of principles, policies, and practical guidance to advance racial equity in the criminal legal system, as well as recent real-world examples of policies and practices implemented by a variety of system stakeholders and community organizations throughout the country.

The following principles are the basis for the policy recommendations developed through this collaborative and to inform future resources. They can be adopted at the tribal, local, state, and federal levels in communities throughout the country to meaningfully address the root causes of inequity and strengthen public safety.

Statement of Principles

• The criminal legal system is comprised of justice system stakeholders, including law enforcement, prosecutors, defenders, pretrial services, courts, correctional centers, and community-based corrections (e.g., probation, parole, reentry services), as well as community organizations, public participants (e.g., jurors), and the tribal, local, state, and federal partners that jointly determine individual- and community-level outcomes.
• The purpose of the criminal legal system is to serve the community, including victims, young people with legal system involvement, persons with lived experience in the justice system, and their families through promoting public safety, holding individuals accountable for their actions, administering justice, facilitating the rehabilitation of and reentry to communities of system-involved individuals, and ensuring support services and assistance for victims of crime to seek justice and healing.
• Racial equity is essential for the criminal legal system to achieve these purposes. When the system creates a disparate impact or fails to ensure full access to the benefits of the legal system to any person or community because of race or ethnicity, that system is inequitable. Racial equity in the criminal legal system is realized when all community members are fairly treated by the system in a manner that meets their needs and ensures everyone’s human dignity is acknowledged.
• A broad and comprehensive approach is necessary for the criminal legal system to adequately address the many causes and consequences of racial and ethnic disparities. Coordination across all system and community stakeholders which elevates the perspective of people with lived experiences in the justice system will best recognize the full scope of how the system impacts community outcomes and how best to implement effective and sustainable policies and practices to advance racial equity within systems.
• Authentic community engagement is an essential and often underappreciated component of comprehensive efforts to address racial equity. Authentic engagement that involves community members and persons with lived experience and their families, and victims and survivors in the shaping of system policies and practices, will best achieve desired community outcomes by leveraging the specific expertise and competencies of the community and fostering trust between system stakeholders and community members.

The criminal legal system exists to serve communities, which ultimately bear the outcomes of decisions made by system stakeholders. Thus, community members and persons directly impacted by the criminal legal system must be at the forefront of efforts to advance racial equity in the administration of justice and promotion of community safety. Authentic community engagement requires forging trust between system stakeholders and communities, centering community members in system decision making, and empowering them to act as equal partners in the shaping of policies and practices so that the system can fully meet the needs of communities, treat all persons equitably and with dignity, and realize greater justice, fairness, and safety for all.

This initiative and the convening were made possible through the support of the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge and the efforts of those who volunteered their time and insights to produce the document.