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The Gatekeepers: Four Ways Prosecutors Can Improve Their Decision-making

With a great amount of authority and discretion at their disposal, prosecutors make decisions that have long lasting impact on individuals involved in the criminal justice system.

March 16, 2015

This article was originally published in The Marshall Project, a nonprofit news organization focused on the US criminal justice system. You can sign-up for their newsletter, or follow The Marshall Project on Facebook or Twitter

For all of the increased, bipartisan attention being paid to the issue of mass incarceration in Congress and state capitols across the country, very little consideration has been given to one of the gatekeepers of America’s criminal justice system — prosecutors. While the highly publicized cases involving the deaths of Michael Brown and Eric Garner exposed the ways in which prosecutors can use their discretion to decline to file criminal charges against law-enforcement officers, prosecutors regularly use that same judgment to pursue overly harsh prison sentences for nonviolent crimes.

Indeed, prosecutors have vast authority and discretion to determine who is charged with a crime and which charges to bring against them. These decisions have a direct bearing on who goes to prison and for how long. The combination of excessive sentencing laws and the singular authority to file felony charges gives prosecutors tremendous leverage, allowing them to secure plea deals in which defendants accept felony convictions and unnecessarily long terms of incarceration. Research from 34 states with available data shows that the increase in felony filings per arrest from 1 in 3 in 1994 to 2 in 3 in 2008 has been a major driver of prison population growth.

Considering that crime has declined significantly, with violent crime falling by almost half since its peak in 1991, do prosecutors still need the leverage of mandatory minimums and long sentences for even the least serious felony offenses? To what extent have prosecutorial practices contributed to the high incarceration rates that are rallying Democrats and Republicans alike to seek alternatives to prison?

With those questions in mind, here are four recommendations for improving prosecutorial decision-making:

Reform-minded attorneys should become prosecutors and run for the office of district attorney. This begins at law school, when students interested in issues of fairness and proportionality should be urged to pursue careers in prosecution in addition to criminal defense. Foundations and individual donors interested in reducing mass incarceration should fund organizations to help identify and recruit candidates who promise to balance punishment with rehabilitation and put justice above a myopic focus on convictions and sentence lengths. Prosecutors should also be representative of the communities they serve. Despite widespread disproportionate minority contact throughout the criminal justice system, there are few non-white prosecutors. A recent San Francisco Chronicle review of staff demographics at the California Department of Justice found that only 11 out of 368 – roughly 3 percent – of criminal-division attorneys are black.

Campaign rhetoric should more closely match the national dialogue. Based only on DA elections, one wouldn’t know that crime was at historic lows or that members of both political parties are advancing policy reforms that aim to reduce incarceration. Prosecutors still regularly tout their success at securing the longest prison sentences and rarely campaign on the number of people they helped get treatment or avoid harmful incarceration. Instead of promising to pursue increasingly punitive policies, and then advocating for them in state legislatures, prosecutors should focus on expanding proven crime-prevention strategies.

Rather than trying to secure convictions and long sentences, prosecutors should focus on reducing recidivism and overall harm to the community.There is evidence that putting people in prison for longer than necessary can actually increase their propensity to commit crimes. There is also a growing body of research that suggests we have reached a point of diminishing returns with regards to incarceration and that additional increases to imprisonment rates will have no impact on public safety. According to a recent report from the Brennan Center for Justice, prison expansion since 2000 had effectively zero impact on crime rates. Prosecutors are uniquely positioned to create opportunities to improve public safety while also reducing the nation’s incarceration footprint. Another recent Brennan Center report proposed ways to modernize federal prosecution, and given the strong role that the Department of Justice plays in guiding charging practices, this is an area in which small changes can have a big impact. Since Attorney General Eric Holder directed federal prosecutors to pursue only the most serious drug-trafficking cases, and to avoid triggering a mandatory minimum in less serious cases by not charging the quantity of drugs possessed, people sentenced to mandatory minimums in the federal system have declined precipitously. In a recent speech, Holder stated that mandatory minimums are now being charged in one out of every two cases, down from nearly two out of every three. According to Holder, “Federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record.”

States and the federal government should require prosecutors to provide data on their charging, plea bargaining, and sentencing decisions. One way to ensure this outcome is for Congress to incentivize states to participate in a national prosecutor reporting program. While departments of corrections regularly report data to the Department of Justice as part of the National Corrections Reporting Program, no equivalent data collection exists for prosecutors. The Justice Department should begin collecting this data. State legislatures could also require it as part of legislation to reform sentencing policies and include the creation of prosecutorial performance measures as part of any policy oversight. In addition to recidivism reduction, potential success measures could include reducing overcharging (the gap between initial charges and final convictions), increasing the use of alternatives to incarcerations (disposition rates for non-violent offenses or alternative to incarceration rates), and limiting public expenditures (total prison days sentenced, controlling for composition of crimes).

Prosecutors have wielded their unique discretionary power for decades, and any large scale balancing of this power will take time. But when more than 9 out of 10 criminal cases are resolved with guilty pleas, it is well past the point where we need to reduce prosecutorial leverage and usher in an era of transparency to our nation’s justice system.

Brian Elderbroom is a senior research associate for the Justice Policy Center at the Urban Institute. Elderbroom focuses on mass incarceration with an emphasis on the use of policy analysis and evaluation to inform state and national efforts to reduce correctional control.

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