Topic: Prosecutors

The Decision Points blog series explores the seven key decision points during the typical criminal case where choices can be made to reduce jail populations.

Defining new models for success in a system that is so steeped in tradition takes courage, and it takes vision. As a prosecutor and chief law enforcement leader with more than 30 years of service, I believe it is incumbent upon prosecutors to identify new models of public safety that reduce both incarceration and unwarranted racial disparities. While these are challenging goals, a modern justice system that embraces data and evaluation can indeed make real progress.

Risk-based assessment tools provide us with an opportunity to refine how we do our work. Using historical data from our work—what cases we charged and how we resolved them—we can determine with much greater accuracy who is dangerous and needs confinement and who can safely be treated in the community. We can also identify where our decisions may have been influenced by inappropriate factors such as race or ethnicity.

Traditionally, prosecutors’ use of science has been limited to forensics and expert witness testimony. Research-based decision making has not had a prevalent role in our work. Thankfully, advancements in risk-based assessment tools can improve decision making about pretrial release and appropriate sentencing options. Refusing to use our own data about our prior successes and failures, with the goals of making better decisions going forward, is irresponsible. Nearly every profession has been improved through data collection and analysis, and prosecution should be no different. Our profession has historically been cloaked in tradition, often to the detriment of improving outcomes. As the country grapples with the reality of mass incarceration, we must embrace tools that can help us safely reduce our prison and jail population, eliminate unwarranted racial disparities, and improve safety for victims and our community at large.

Risk assessment tools help us answer many questions, including who should be released from custody before trial, who is likely to reoffend and how, and what interventions are likely to be most effective. Even jurisdictions like San Francisco, where we have significantly reduced the use of confinement over the past two decades, can benefit from tools that help answer these questions.

In San Francisco, we have reduced the presence of low-risk individuals and those with limited criminal histories from our jails through planned and deliberate policy changes. For example, drug prosecutions have declined from 63 percent of our felony caseload in 2009 to 26 percent in 2014, allowing us to focus more resources on serious and violent crimes. However, we still have a disproportionate number of African Americans in our local jails. We must consider every tool available to understand this imbalance and identify safe ways to correct it.

The implementation of risk-based tools at key decision points is the next step for San Francisco to reduce disproportionate minority contact and continue to reduce our jail population safely. My office is excited to partner with the Arnold Foundation to facilitate adaptation of the Public Safety Assessment. We anticipate that the implementation of this tool will assist us in further reducing our jail population and unwarranted racial disparities in the system. Other communities across the country are pursuing the same goals through the MacArthur Foundation’s Safety and Justice Challenge, a new initiative to change the way America thinks about and uses jails.

Modern and equitable justice requires that all criminal justice partners refine our interventions and reform our approaches to the work. Prosecutors play a critical role when charging and setting the direction of cases. We would be foolish to ignore validated tools that can improve our ability to make the community safer for everyone. As gatekeepers of the criminal justice system, prosecutors have both a legal and ethical duty to ensure the system operates effectively to protect public safety, and is free of bias. Embracing data analysis and tools to hone our decision making is an obvious next step in this pursuit.

Note: This piece also ran on the Huffington Post (“Decision Points: Prosecutors Have Opportunities to Reduce Incarceration and Disparities Through Risk Assessment”)

The Decision Points blog series explores the seven key decision points during the typical criminal case where choices can be made to reduce jail populations.

“It is a prosecutor’s duty to pursue equity and justice so that all individuals can pursue their lives free from crime and without fear from oppression.”

So reads the Association of Prosecuting Attorneys’ mission statement in its The Prosecutor’s Policy Guide: A Roadmap to Innovation. This call to action is especially urgent today, as prosecutors—whose leadership role can significantly influence reform efforts—are uniquely positioned to address the over-use of jails in local justice systems and its disproportionate effects on communities of color.

Prosecutors who recognize their ability to influence transformation and seek to incorporate new methods of prosecution in order to safely reduce jail populations may encounter barriers to change, however. They might find themselves facing traditional expectations from the public, their peers, or other criminal justice partners who see prosecutors as “case processors” rather than “crime preventers.” Or they might find that their staff lacks necessary buy-in for the successful adoption of new strategies. However, as leaders, prosecutors have the ability to recognize and implement innovation by not only making their staff and partners aware of potential benefits of change, but also by taking the necessary steps to see shifts in day-to-day practices.

In order to prove the efficacy of new programs and practices and secure their sustained support, prosecutors must identify specific objectives at the start of implementation and establish means of measuring performance throughout. They should always consider how a new program or practice will benefit public safety—and communicate that to their staff and, if appropriate, the public. In Minneapolis, for example, City Attorney Susan Segel implemented the Minneapolis Downtown 100, a program designed to reduce crime committed by chronic homeless offenders through coordinated efforts to provide assistance and housing support by prosecutors, probation officers, and social services and housing providers. The program achieved a 77 percent drop in crimes committed by identified chronic offenders. Programs like the Minneapolis Downtown 100 can provide support to prosecutors seeking to effect change due to their adherence to the traditional approach used for defining and measuring success—a change in the rate of crimes committed—while at the same time, engaging stakeholders in taking action that reduces unnecessary jail stays.

To further support the success of new practices, prosecutors who pursue alternative case handling methods—such as implementing a community justice alternative to jail for a person charged with vandalism (community service to clean up a vandalized area, for example)—should compare new approaches to existing ones for an accurate comparison to traditional case processing. Prosecutors should be ready to explain the benefits of an alternative case processing approach to those who would dismiss proposed alternatives for being too lenient on accused offenders.

Some prosecutorial office structures may need to change, as well, to combat internal resistance to change, whether that means creating systems to track the development, implementation, and effectiveness of new programs and practices, instituting peer reviews of alternative case processing methods among line prosecutors, or simply encouraging open discussion of new strategies.

Though complicated and varied factors contribute to the overuse of jails in our communities and the disproportionate jailing of people of color, prosecutors’ actions can and should play a leadership role in addressing these problems. In response to a growing awareness of the inequities of our justice system, the American Bar Association and the NAACP Legal Defense and Educational Fund recently released a joint statement identifying 12 reforms that prosecutors can take to address racial bias in the criminal justice system. These prosecutorial reforms, they said, are “necessary investments that are essential to strengthening public confidence in the rule of law and the legitimacy of our justice system.”

As one promising example of such leadership, many of the jurisdictions participating in the MacArthur Foundation’s Safety and Justice Challenge—an initiative to change the way America thinks about and uses jails—are developing plans in partnership with their local prosecutors’ offices to rethink how they use jail. Through careful evaluation of an office’s structures and practices, and the strategic adoption of promising programs, prosecutors nationwide can safely reduce unnecessary jail incarceration to make the communities they serve safer.

Note: This piece also ran on the Huffington Post (“Decision Points: Pursuing Innovation in Prosecution”).