Topic: Prosecutors

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.

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.

We all recognize that the criminal justice system cannot be reformed without marked progress in the field of prosecution. We also recognize that prosecutors need to be equipped with data and analytics to understand their impact on the communities they serve. But building data systems without committing to measuring prosecutorial success in an objective and holistic manner gets us nowhere.

That is why, in 2017, criminologists from Florida International University and Loyola University Chicago partnered with prosecutor’s offices from Chicago, Milwaukee, Jacksonville, and Tampa, and engaged with thought leaders in the field of criminal justice reform to reimagine and redefine success in prosecution. The work is supported by the MacArthur Foundation’s Safety and Justice Challenge which aims to reduce unnecessary incarceration and racial and ethnic disparities at the front end of the criminal justice system.

The Prosecutorial Performance Indicators—or PPIs, as we call them—are an office management, performance measurement, and accountability and transparency tool. We imagine the tool being used by community members, advocacy groups, researchers, and reporters to hold elected prosecutors accountable. But we also want the tool to help office executives and especially mid-level management to understand trends of their decision making. Making the best possible decisions on each case does not guarantee the best outcomes overall. So, prosecutors need to do both—assess each case and make the best possible decision on it, and examine the cumulative effect of these decisions. For example, consider the medical field: while to a doctor every patient is unique, good doctors also observe trends and research to come up with individualized treatment plans.

The Prosecutorial Performance Indicators were developed over three years and painstakingly piloted in the four partner jurisdictions. They are currently being applied in two additional prosecutorial offices in Philadelphia and Charleston, SC.

The idea of creating indicators of success in prosecution is not new. In 2004, the American Prosecutors Research Institute (APRI) produced a landmark report, Prosecution in the 21^st Century: Goals, Objectives and Performance Measures, which argued that prosecutors should ensure justice in a fair, effective, and efficient manner. We have embraced these goals and expanded them to: (1) improving capacity and efficiency, (2) ensuring community safety and wellbeing, and (3) advancing fairness and justice. Good measures capture impact on the community as well as the system as a whole. Prosecutorial offices need to have capacity to maximize positive impact.

The Prosecutorial Performance Indicators are a menu of 55 measures, which assess office-wide performance on a monthly, quarterly or yearly basis, depending on the issue measured and the size of a jurisdiction. Advancing racial justice is a big component of the PPI framework. There are seven measures dedicated to assessing racial and ethnic disparities at case filing, pretrial detention, diversion and sentencing. Examining the treatment of defendants and victims by their socioeconomic status is another important dimension.

But we also have more traditional measures looking into assisting crime victims, managing caseloads, and preventing recidivism, because all of these things are important too. Furthermore, some measures are more predictable than others. Conviction rate for violent crimes (Indicator 4.2) is a more traditional metric of public safety. Other measures, like ability to identify dismissible cases at filing (Indicator 2.1), which compares the rates of case rejection at filing versus dismissals after filing, require asking questions that most prosecutors may have not yet considered. For example, what is the right filing or dismissal rate, to what extent do these two discretionary decisions relate, and what policy changes will improve the prosecutors’ ability to eliminate dismissible cases as early as possible?

We encourage prosecutorial offices to consult community and advocacy groups as they identify local priorities and develop policy solutions, particularly around community engagement, racial disparities, substance use and drug overdose, and mental health diversion. Community groups can also help select and customize specific indicators for a given jurisdiction. Not only will such groups provide useful perspectives on how to deal with problems, but these partnerships will also strengthen community buy-in and trust as prosecutorial offices implement new policies. Prosecutors should also consider establishing a community advisory board to regularly discuss trends in PPIs.

How can interested prosecutors access the tool? In the era of DIY, we are making the PPIs as user-friendly as possible. We produced an implementation guide, which provides step by step instructions for selecting specific PPIs for a given office and overcoming logistical and political challenges. Partner jurisdictions have already produced or are working towards public-facing dashboards that show PPIs in action. Collecting and presenting data should lead to identifying red flags and positive trends. The PPI website also provides training materials to assist managers with using the indicators to translate numbers into changes in policy and practice.

Doing this work, we realize that prosecutor’s offices have more data and greater capacity to use data than we might think, but someone still has to do the data assessment and analysis. If hiring a researcher is not an option, forming partnerships with local research and academic institutions can be a great way to build sustainable capacity to implement this work.

In the next phase of the project, our team will seek new partners—both prosecutorial offices and researchers—interested in implementing PPIs and bringing data culture into the field of prosecution. While still rare, researcher-practitioner partnerships hold the key to improving the justice system through data-informed decision making, and improving academic research through fresh data and valuable insights from practitioners. We would like to hear from you if you share this vision.