Florida’s Prosecutors Launch the State’s First Prosecutorial Performance Indicators’ Dashboards

By: Melissa Nelson

Courts Innovation Fund Prosecutors December 17, 2020

We are elected prosecutors from the two coasts of Florida. As prosecutors, we are charged with making decisions on each case based on the merits of that case. Rarely do we look beyond the individual cases in front of us to understand the aggregate impact or trends of our individual decisions. We believe that prosecutorial success lies in the balance between making the best case-level decisions and gauging the cumulative effects of those decisions on community safety and well-being.  Indeed, appreciating the bigger picture is critical to developing evidence-based solutions to promote public safety, build trust in the criminal justice system, and ensure all people are treated equally.

Though we sit on opposite sides of the political aisle, we both took office four years ago sharing the common goals of establishing transparent, accountable, equitable and efficient prosecutor offices.

In 2017, with support from the John D. and Catherine T. MacArthur Foundation’s Safety & Justice Challenge, our offices, along with those in Chicago and Milwaukee, began a partnership with Florida International University and Loyola University Chicago to develop a set of measures—the Prosecutorial Performance Indicators (PPIs)—that track office-wide progress over time to advance these shared objectives.

The PPIs are intended to help prosecutors measure priorities and outcomes across their offices, including timely dispositions, racial and ethnic disparities, recidivism rates, and diversion outcomes. PPIs are comprehensive, impact-oriented, and available to any prosecutorial office across the nation.

We are proud to launch our prosecutorial data dashboards—the first of their kind in Florida—which post the PPIs. Only a handful of prosecutorial offices nationally have such transparency and analytical tools. With these public dashboards, the public too will have an opportunity to gauge our success in meeting certain objectives and pose questions about our work.

This tool affords prosecutor offices the chance to meet the mounting challenges we all face in the criminal justice system with data informed solutions.  Simply, it offers a way to do things differently—and better.

Implementation Guide

Courts Data Analysis Prosecutors October 1, 2020

Implementation Guide for Prosecutorial Performance Indicators

Besiki Luka Kutateladze, Rebecca Richardson, Ryan Meldrum, Lin Liu (Florida International University) Don Stemen, David Olson, Branden DuPont (Loyola University Chicago)

Changes in prosecution are essential to criminal justice reform, but prosecutors have rarely had the data they need to define success beyond conviction rates.  To address this problem, criminologists from Florida International University and Loyola University Chicago partnered with prosecutor’s offices from Chicago, Milwaukee, Jacksonville, and Tampa to develop a menu of 55 prosecutorial performance indicators (PPIs) and redefine success for prosecutors. This guide provides step-by-step instructions for choosing and implementing specific PPIs.

What the Predominance of Plea Bargaining Can Teach Us About (In)Efficiency

By: Melvin Washington II

Courts Presumption of Innocence Prosecutors September 10, 2020

Due process has given way to mere process when it comes to criminal justice in the United States. From June 2017 to June 2018, nearly 90 percent of all people charged in federal cases were convicted and sentenced without a trial. National data on state courts, where the majority of criminal cases are filed, reflects the rarity of trials. These statistics are evidence of the criminal legal system’s reliance on often private negotiations, known as plea bargains, which produce guilty pleas and eliminate the need for a trial. Retired U.S. Supreme Court Justice Anthony Kennedy has framed this as the American “system of pleas.” Despite the central role plea bargaining plays in the criminal legal system, the systemic factors surrounding the practice remain obscure. However, a critical examination of the values that drive the system of pleas can provide important insights for those seeking to transform how government institutions respond to harm.

Guilty pleas have become a linchpin of the U.S. criminal legal system. They enable overworked attorneys to chip away more quickly at constantly burgeoning caseloads and enable courts to more easily meet time standards for clearing cases by speeding up dispositions. They may even enable people accused of crimes, many of whom are forced to await the resolution of their cases from jail cells because they cannot afford small bail amounts, to return home more quickly. Plea bargaining is one of the many routines that have become essential to current criminal legal practice. But just because it’s prevalent doesn’t mean it’s positive.

A new report released by the Vera Institute of Justice with support from the Safety and Justice Challenge reviews the complex and inconclusive body of research surrounding plea bargaining. But the private nature of plea bargaining—and the dearth of studies focused on the people who are most impacted by its outcomes—make it difficult to truly understand this cornerstone of the American legal system.

What we do know is that the current system of pleas creates faster dispositions—at times to the detriment of individualized justice. Attorneys and judges make decisions with little contextual information about the person accused or the underlying circumstances of what occurred, partially because plea bargains reduce the need for the more transparent examination of facts that may happen with a trial. And for misdemeanors and other lower level offenses that make up the majority of charges filed, there is frequently little “bargaining” at all. Instead, there are standard “deals” intended to resolve cases—sometimes as early as a person’s first court appearance. What often results are speedy determinations that have less to do with the complex needs of the people involved and are more associated with local caseloads and crime rates, a person’s previous contact with the legal system, and the initial charging decision. Additionally, coercive factors, including being incarcerated pretrial and the fear of a harsher sentence should one lose at trial, can drive a person to plead guilty. Specifically, pretrial incarceration, which is rife with racial, economic, and gender inequities, increases a person’s likelihood of pleading guilty by 46 percent. As a result, pretrial incarceration and the system of pleas simultaneously contribute to the increased marginalization of already marginalized people by making them more likely to add convictions to a criminal record.

The lack of transparency in the process further diminishes the legitimacy of the criminal legal system. Before offering a plea deal, prosecutors can and, at times, do consult those who have been harmed. However, what the prosecution ultimately decides after these private negotiations is almost completely up to them. Without transparency and accountability, people are more likely to feel disconnected from the processes they are told to rely on for justice and safety. It should come as little surprise then that surveys of crime survivors indicate significant dissatisfaction with the current criminal legal process and the remedies it may offer.

The predominance of guilty pleas provides an important lesson as practitioners and advocates continue to think about creating new systems for justice and improving the current one. Any strategy that maximizes the public good while minimizing the resources required to do so will be attractive. But when it comes to justice, the “public good” cannot be simply reduced to the number of cases resolved. A system that obtains a high number of convictions but does not promote healing should not be considered efficient.

Instead, we need notions of efficiency that reflect our values. This requires being explicit about the principles driving decision making while constantly checking for alignment between those principles and the routines that emerge in implementation. For those concerned with promoting safety, healing, and accountability, this does not mean counting the number of people who are processed through a system. It means measuring how effective the processes, practices, and institutions that constitute a system are at empowering communities, both to prevent harm and to facilitate healing when harm occurs. Under this framework, plea bargaining may prove to be much more costly than its ubiquity suggests.

Power of “The People”: Rethinking Prosecution Towards Greater Community Safety

By: Chidinma Ume, Chloe Aquart

Community Engagement Pretrial Services Prosecutors May 12, 2020

The mass uprisings spurred by the killing of George Floyd, Breonna Taylor, and other Black Americans, have led many people to ask what role police should play in keeping communities safe. Despite this focus on policing, an observer of the criminal legal system might tell you that how police enforce laws is often influenced by how prosecutors handle criminal cases. We, as former prosecutors working to assist jurisdictions across the country with justice reform, believe the strategies outlined below are starting points for prosecutors to help promote a new vision of justice.

As cities explore ways to safely reduce the footprint of law enforcement, is there a reckoning that needs to happen for prosecutors? How might prosecutors better reflect communities’ values for public safety and provide community-driven solutions to crime? Given that prosecutors wield substantial influence over how laws may be enforced, we will benefit from prosecutorial approaches that improve people’s ability to sustain their own safety and the wellness of their communities.

As our colleagues at the Center for Court Innovation have set forth in Shrinking the Footprint of Police: Six Ideas for Enhancing Safety, there are proven ways for localities to invest in solutions that increase safety, limit the use of police, and remain rooted in anti-racist, community centered practices.

Prosecutors, too, have the ability—and indeed, an opportunity—to take these efforts even further.

This moment can inspire prosecutors, who see their role as representing the interests of the “the People” (their constituents), to forge new practices, partnerships, and programs that complement community-led safety efforts.

New Practices

First, prosecutors can develop practices that prioritize the well-being of survivors and accused people. Enter, again, the outside observer of the criminal legal system. This person sees prosecutors mostly urging swift legal action against people arrested for crimes. And the consequences are primarily retributive in nature: file charges, seek a conviction, and pursue an accompanying sentence. Prosecutors are trained to review an accused person’s criminal history and the alleged offense to recommend how the justice system should respond to the accused. These factors are indeed relevant to how cases might best be resolved, but how might early decision-making improve with more information? Perhaps the accused has a long trauma history, has unmet mental health needs, or is battling a substance use disorder without resources to address it. What if one or many of these factors contributed to the alleged offense? Prosecutors would do well to embrace a more holistic view of who accused people are early and often.

Prosecutors, who often advocate for sentencing outcomes, can also push for options other than jail to promote a person’s healing and community restoration. This concept is not new to prosecutors. They often obtain similar information, about how harm has affected someone, to better understand survivors and witnesses on their cases. Given that accused people are also part of communities that we want to keep safe, it is important to extend this practice to them.

New Partnerships

Along with developing the internal practices needed to ensure consistency between the office’s mission and its culture, prosecutor’s offices must embrace existing community solutions early and often. Community-based organizations (CBOs) provide tailored and targeted services that are needed in community as supplements to the social services provided by city and state government. Prosecutors can use these services as early on in cases as possible. In certain instances, they can also hold off on prosecuting people while they participate in these programs, to reduce further exposure to the court system. As an office beholden to its constituents and charged with protecting community safety, prosecutors must be familiar with and use community-based organizations and the services they provide as a bridge between the criminal justice system and communities affected by crime. Research supports this approach.

New & Expanded Programs

Once formal pathways to community-based services are in place, prosecutors may begin to identify gaps in the landscape to safely meet people’s needs outside of the court system. Maybe there’s a need for more programs that can reflect the cultural and ethnic needs of constituents. Perhaps services need to be available beyond business hours to serve people at the most critical times. There may also be a demand for more holistic programming that can offer housing and employment support—for accused people and their families—to help address the root causes of contact with the court system.

Whatever the needs may be, localities must be in a position to meet them if they intend to provide the supports that can preemptively address community needs. This kind of response takes investment, and prosecutors are in a unique position to offer a much-needed assist. Prosecutor’s offices often have access to civil asset forfeiture funds, which allow police and prosecutors to seize property with a suspected connection to criminal activity. These resources are often funneled back into the budgets of these same entities to spend in ways that promote public safety. To this end, prosecutors could invest asset forfeiture funds in local organizations that provide services to court-involved people.

Safe communities require investment—in networks and resources that can respond more nimbly, and often more affordably, than government might sometimes be able to do. At this moment of reckoning, prosecutors, too, can examine ways to heed communities’ renewed concerns about the criminal legal system.

Prosecutors can harness their power as representing “the People” to heed their call to broaden our view of how to keep them safe. This cannot happen unless we promote a culture that prioritizes healing and well-being over convictions. Indeed, prosecutors, who see their role as seeking justice can lead the charge to promote more human-centered approaches, for people accused of crime and survivors.

Working Toward Safety and Justice through Police and Prosecutor Partnerships

By: Marlene Biener

Community Engagement Policing Prosecutors October 28, 2019

Police and prosecutors are leaders in public safety and the criminal justice system. The challenges they face are complicated, ranging from responding to violent crime to addressing the unmet need for treatment and services related to mental illness and/or substance use disorder in the communities they serve. This gap in community-based treatment and services, coupled with complex societal changes and challenges—including income inequality and the resulting wealth gap—contributes to the justice system being the de facto response. As such, the responsibilities of traditional public safety stakeholders have broadened to include innovative approaches, including working with community-based public health partners.

The key to navigating these evolving and innovative strategies is through partnerships. Collaboration among justice system stakeholders is a common theme woven into the recommendations of scores of reports, toolkits, and other resources. However, budget and resource limitations, varying community and stakeholder perspectives and priorities, and balancing short-term needs with planning for long-term sustainability can create strains on individual agencies that have committed to these partnerships. These factors, while challenging, are not insurmountable.

The International Association of Chiefs of Police and the Association of Prosecuting Attorneys recently published a report on recommendations made during a roundtable on police-prosecutor collaboration held in August 2018 in Pennington County, South Dakota, with law enforcement and prosecutorial leaders from Harris County, Texas; Pennington County, South Dakota; Orleans Parrish, Louisiana; and Milwaukee County, Wisconsin.

These leaders identified practices that enable their agencies to address violent crime, create diversion programs, and pilot emerging tools, such as risk assessments, with careful consideration. The practices include devoting attention to roles and responsibilities at each justice system decision point, reviewing logistical and administrative processes so they best facilitate information and data sharing, and creating opportunities for feedback between their agencies and the community, as well as between all levels of staff from leadership to front-line officers and deputies.

The details and processes of how jurisdictions implement their programs and partnerships often vary. There is no one-size-fits all approach, so this report instead focuses on high-level values and processes that promote productive relationship building to facilitate collaboration. For all jurisdictions seeking to build new relationships within their justice systems, the report encourages police and prosecutors to engage their communities and other stakeholders, promote shared messaging and accountability between police and prosecutors, and make an effort to use and reinvest agency resources as efficiently as possible. The challenges police and prosecutors face can be daunting, but through partnerships, jurisdictions can create effective solutions that will benefit both their agencies and the communities they serve.