Topic: Prosecutors

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.

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.

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.

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.