Topic: Prosecutors

Criminal justice reform has become a priority on both sides of the political aisle and within our communities as America’s over-reliance on incarceration and racialized patterns of injustice are brought into sharper focus. Designing meaningful reform that will create lasting change requires participation and collaboration from all justice system stakeholders, even—and especially—those that are more used to approaching one another in an adversarial capacity.

Cornerstone Magazine—a publication of the National Legal Aid & Defender Association (NLADA)—spoke to leaders from two “Strategic Allies” of the Safety and Justice Challenge: David LaBahn, President and CEO of the Association of Prosecuting Attorneys (APA), and Jo-Ann Wallace, President and CEO of NLADA.

While defenders and prosecutors may have opposing perspectives in the courtroom, we often have many common goals when it comes to criminal justice reform. What would you say are a few of the most important shared objectives?

Jo-Ann Wallace: Almost half a million people detained each year in our country’s jails have never been found guilty of a crime. Many pose no real flight risk or danger to community. The starting point for shared objectives are eliminating the unnecessary use of jails and racial disparities in the justice system. I believe a shared desire for fair justice systems is motivating both defenders and prosecutors to pursue better solutions.

David LaBahn: The criminal justice system should aim to assist and rehabilitate individuals—as recidivism rates show, people in the system often don’t receive the treatment or resources they need to improve their circumstances. Having treatment alternatives to incarceration is key. Through implementation of diversion and deflection programs, defenders and prosecutors can work together to achieve the most successful results, and ultimately make our communities safer.

What are some of the challenges to collaborative advocacy between defenders and prosecutors on these issues? How can they be resolved?

DL: One of the biggest challenges is the notion that prosecutors and defense attorneys are on opposing sides, which leads to a fear of working together. However, collaborations need to take place in order to stomp out that stigma. Prosecutors and defenders agree on many issues surrounding criminal justice reform—including the fact that low-risk people can be diverted, and the importance of data—and they can work together to see positive changes that occur from these reform efforts. In order for this to take place, the parties involved also need to understand that it’s alright to agree to disagree.

JW: A public defender’s most important duty is to advocate zealously for his or her clients, and this requires having their complete confidence. Unfortunately, clients are sometimes so mistrustful of the justice system that they even view their attorney with suspicion. The perception of a close relationship with the prosecution can damage that trust even further.

Defenders can take a variety of steps to help their clients understand that collaboration on policy issues does not undermine their ability or their ethical duty to provide effective client representation.

How can defenders and prosecutors work together on the ground to make diversion programs or alternative sentencing more effective?

DL: While it is important to advocate for criminal justice reform legislation, prosecutors and defense attorneys realize that the most effective change occurs on the ground. Diversion programs are only successful if a host of multidisciplinary professionals—defenders, prosecutors, judges, probation and parole officers, mental health and substance use professionals, and community members—work together to benefit the individuals attending these programs. The success of these programs should also be measured through data, and professionals should not be afraid to change the program to best fit the needs of the individuals who are participating.

Many in the defender community believe that the justice system is broken. Do you agree, and can it be fixed with improvements to the existing system or are there some fundamental flaws that require comprehensive reform?

JW: Our criminal justice system is dealing with social problems it is not equipped to address. For example, many individuals with mental illnesses should not encounter the justice system, but should be diverted directly into the healthcare system. As a result, it is bloated like our jails and prisons, beyond the point of effectiveness in many instances and resources are stretched too thin. The overwhelming workload has created a system that is more focused on processing cases than dealing with human beings.

The MacArthur Safety and Justice Challenge teams are exploring what is driving their jail populations and working to develop strategies to reduce them, and also presents a model for a larger reassessment of how we approach social issues and the role of our criminal justice system. Until we get there, two small but significant changes would make a world of difference. First, every criminal justice stakeholder (judge, defense counsel, prosecutor, etc.) should treat clients and their families with respect and dignity. Second, these stakeholders should receive high quality training on implicit bias.

There are parts of our system that do need to be torn down and rebuilt differently. I believe it is time to eliminate cash bail systems, for example, which put liberty at a price only the wealthy can afford.

What would you like prosecutors to know about the defender community, and vice versa, and its role in making our justice system fairer and our communities safer?

DL: It is the role and the duty of the prosecutor as the “minister of justice” to ensure that we have a just system, which focuses on public safety. We recognize that the system needs improvements, and we are striving to work with all parties involved to make a difference in their communities. When prosecutors and defenders work together, they will be successful in steering individuals towards rehabilitation, and improving their circumstances.

JW: If a person feels that they have been treated fairly and with respect by the justice system, that they understand the court proceedings, and that their voice was heard during the adjudicative process, they are significantly less likely to become involved with the justice system again. Everyone in court must take some responsibility for this, but no one else in the system has the responsibilities written into their job descriptions as extensively as a client’s dedicated advocate. Competent defense counsel is vital to maintaining the faith of the client—and the public at large—in our institutions of justice.

*A version of this post originally appeared in Cornerstone Magazine

The field of prosecution is changing rapidly. We are seeing an unprecedented number of reform-minded prosecutors running for, and often winning, elected office. Their platforms highlight priorities including fairness, community well-being, reducing mass incarceration, and accountability.

Why does this matter? Because prosecutors have vast discretionary power over criminal case processing—they decide which offenses to prosecute, which defendants to suggest for pretrial detention, which cases to divert, which plea deals to offer, and which sentences to recommend. Prosecution reforms therefore have the potential to improve the criminal justice system profoundly.

At Florida International University and Loyola University Chicago, we have partnered with four forward-thinking elected prosecutors in Jacksonville, Chicago, Milwaukee, and Tampa to promote more effective, just, and transparent decision making in prosecution. The project is a two-year bipartisan effort to take a fresh look at prosecutorial performance and decision making, and is part of the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.

We are thrilled to be working with four elected prosecutors who are committed to data-driven reforms. One important form of data is input gathered from all levels of the prosecutors’ office, so in the first phase of this project, we conducted interviews and online surveys with prosecutors from our four partner offices. We asked them about their views on success, office priorities, community engagement, incarceration, and racial and ethnic disparities. A few key findings from the resultant report are:

• Prosecutors have difficulty articulating what success means to them. This is in part because prosecution is a complex, multifaceted undertaking. It is also because prosecutors concentrate on “doing the right thing” case by case rather than thinking about their overall impact.
• Prosecutors widely acknowledge that their offices are committed to using alternatives to incarceration and prioritizing cases with the greatest public safety return. However, other facets of the elected prosecutors’ visions do not always trickle down to line attorneys. Mid-level managers do not always support their leaders’ priorities and may fail to communicate those priorities to their line staff.
• Some prosecutors consider community engagement essential, believing that it develops trust and encourages community members to report crimes and cooperate with law enforcement. Others say community engagement does not have any meaningful purpose. Only a few believe it helps prosecutors better understand and respond to the unique needs of each community they serve.
• Prosecutors often attribute racial and ethnic disparities in the criminal justice system to greater rates of offending among people of color and to police patrolling tactics that focus on high-crime, disadvantaged communities of color. Prosecutors believe that they themselves do not contribute to disparities in case processing and that it cannot be the responsibility of the prosecutors’ office to address existing disparities.
• Many prosecutors are averse to the use of data, arguing their decisions should be based only on the facts in each case and not on any summary statistics. They worry that looking at case trends would give critics ammunition to inappropriately assign them labels like racist, punitive, and lazy.

We need to know how prosecutors think to implement and sustain positive changes in prosecution. Streamlining the communication of office priorities, explaining the value of community engagement for crime prevention, discussing how unwarranted racial and ethnic disparities can be identified and reduced, and providing examples of the successful integration of data into policy and practice are just a few of the ways prosecutors’ offices may be able to overcome existing barriers to reform. Our partner offices aim to use the findings in this report to improve their own management and communication strategies, but we hope the report can also be useful to other prosecutors around the country who have a similar appetite for reform.

The next phase of the project will focus on formulating prosecutorial performance indicators to track progress toward greater efficiency, effectiveness, and fairness. We will publish two additional reports in conjunction with this phase. Researcher-prosecutor partnerships are rare, but we hope this project will show the potential value of these partnerships and encourage research communities and prosecutors’ offices to seek each other out as the field of prosecution continues its exciting move forward.