Federal Prosecution for the 21st Century
This new report from the Brennan Center for Justice at NYU School of Law proposes modernizing one key aspect of the criminal justice system: federal prosecutors. Prosecutors are in a uniquely powerful position to bring change, since they make decisions about when and whether to bring criminal charges, and make recommendations for sentencing. The report proposes reorienting the way prosecutors’ “success” is measured around three core goals: Reducing violent and serious crime, reducing prison populations, and reducing recidivism. The mechanism for change would be a shift in how attorneys' performance is assessed, to give prosecutors incentives to focus on how their practices reduce crime in and improve the communities they serve, instead of making their "success" simply a measure of how many individuals they convict and send to prison.
Hon. Janet Reno
As a former United States Attorney General, I care deeply and passionately about our country’s criminal justice system. The Department of Justice should be justifiably proud of the sharp decrease in crime that has occurred over the last 20 years. The United States is safer than it has been in decades. Violent crime is down. Property crime is down. And abuse of crack cocaine is down. What was once seen as a plague, especially in urban areas, is now at least manageable in most places.
To bring about these decreases, we employed a number of strategies, from putting more police on streets to supporting and working with groups like the Partnership for a Drug-Free America and Crime Stoppers. While programs like these played an important role in reducing crime, one unfortunate side effect was an explosion in incarceration. To be sure, there are a great many people who are in prison for very good reasons. But many are behind bars for sentences that are too long or for offenses that may not warrant prison.
Those laws were passed and implemented with the best of intentions. But we now know that it is possible to decrease crime without drastically increasing incarceration. In a rare moment of bipartisan agreement, policymakers from the left and the right are joining together to create new, smart policies that will ensure continued public safety while also preventing unnecessary incarceration. These policies range from making sure that we have a sound, predictable, tough yet rational sentencing structure to diverting more people to innovative programs, such as drug courts.
These reforms will require changes in laws, both in Washington and in state capitals around the country. But many reforms can be implemented on the front line of the criminal justice system by the thousands of men and women I had the privilege of leading: America’s prosecutors.
Prosecutors play a distinct and important role in criminal justice. They go to work each day determined to protect the public, armed with three basic qualities: ability, integrity, and courage. They can lead the way to advance thoughtful, sensible approaches that have a real impact on violence and crime, while also reducing unnecessary prosecution and incarceration. Many are already doing so.
This report provides a blueprint for federal prosecutors to establish a new set of priorities to better reduce crime and reduce incarceration, while modernizing criminal justice. It also puts forth practical recommendations to create incentives to drive practices toward these priorities. Federal prosecutors, in particular, are uniquely positioned to lead the country toward this shift. Prosecutors and law enforcement across the country should be encouraged to give strong consideration to this approach.
Federal prosecutors play a distinct and significant role in combating crime. They are the protectors of federal criminal and civil law, charged with investigating cases and seeking justice in challenging circumstances. They handle cases large and small, complex and simple, violent and petty. And they ensure that offenders are held accountable for crimes committed. They are charged with serving justice and keeping the public safe.
Federal prosecutors, along with other criminal justice agencies, have contributed to the drastic drop in crime over the past 20 years. Among other things, violent crime has fallen by almost half since its peak in 1991, and property crime is down 44 percent. It is truly remarkable how much safer the country has become since the crime wave of the 1980s and 1990s.
But the policy response to the crime epidemic has yielded an unintended consequence. The United States has more than tripled its incarceration rate over the past four decades.Thirty percent of Americans now have a criminal record.One in 35 adults is in jail, prison, or on probation or parole.The current rate of incarceration places the United States far outside those of other Western democracies.And the price of this overreliance on incarceration has had dramatic and far-reaching costs, both social and economic. Total criminal justice spending is more than $260 billion.
It is becoming clear to a broadening array of Americans that mass incarceration is unnecessary and harmful. Conservatives and progressives alike have come to see that the country has passed the point where its number of prisoners can be justified by the potential benefits. Senator Rand Paul recently said, “Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration.” New Jersey Governor Chris Christie criticized the idea that “incarceration is the cure of every ill caused by drug abuse.” California Attorney General Kamala Harris has advocated for “a third way forward: smart on crime.” Similarly, in September 2014, New York City Police Department Commissioner William Bratton acknowledged that the “culture” of his department focused too much on “the numbers of stops, summonses and arrests,” and not enough on “collaborative problem-solving with the community.”
This growing bipartisan consensus has led to genuine change. Since 2009, 40 states have acted to ease their drug laws.Seventeen states invested in evidence-based programs projected to save about $4.6 billion over 11 years.Due to these and other reforms across the country, both crime and incarceration have fallen by about ten percent since 2008. This marks the first time these two measures have gone down together in over 40 years. This shift is heartening — and spreading. But more can be done.
In 2013, U.S. Attorney General Eric Holder announced the U.S. Department of Justice’s Smart on Crime Initiative. The Initiative aims to improve the criminal justice system by reducing recidivism, deterring crime, and reducing unnecessary imprisonment.Holder stated, “While the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation.”His words were similar to those expressed by former Attorney General John Ashcroft a decade earlier: “The Department of Justice has to be more than the department of prosecution.”As a step toward that goal, Attorney General Holder encouraged the nation’s U.S. Attorneys to refrain from using mandatory minimum sentences for certain low-level, nonviolent drug offenses, because, in his words, “[t]oo many people go to too many prisons for far too long for no good law enforcement reason.”
Traditionally, the nation’s federal prosecutors have focused on the enforcement of federal statutes. However, there has been a gradual shift toward prosecutors working to address the root causes of violence or unethical behavior. This change asks prosecutors to focus on prevention strategies to influence the complex causes leading to violent crime, in an attempt to prevent crimes rather than just punish offenders after they commit them.
Prosecutors are well-positioned to create opportunities to improve public safety while also reducing the nation’s incarceration footprint. They are granted unique authority to make charging decisions, enter cooperation agreements, accept pleas, and frequently dictate sentences or sentencing ranges. Occupying a respected place in the legal profession and seen as prestigious attorneys with a dedication to justice, federal prosecutors are poised to lead the way toward an improved criminal justice system. The time is ripe for a new set of 21st century priorities for federal prosecutors. U.S. Attorneys can play a leading role in recalibrating prosecutorial practices. They can determine what priorities they should support to aid the nation’s larger reform efforts.
There are several ways prosecutors can shift practices toward 21st century goals. One method, identified by the Brennan Center in previous reports, is a policy model known as Success-Oriented Funding. This approach ties government dollars as tightly as possible to clear, concrete objectives that drive toward the twin goals of reducing crime and reducing mass incarceration. It creates clear priorities and then creates clear incentives to shift practices toward those priorities.
There are many factors beyond the control of criminal justice actors that contribute to changes in crime, violence, and incarceration. Yet those most deeply involved in criminal justice recognize that well-crafted success measures can move outcomes toward priorities.As is often the case, what gets measured gets done. Setting clear, quantifiable goals for success can encourage agencies and individuals to use their discretion to achieve priorities.
Built on input from the nation’s current and former leading federal prosecutors, this report recommends a way for federal prosecutors to move toward 21st century priorities. By shifting their own practices, federal prosecutors spread throughout the country can help incentivize a similar shift in state and local practices. The United States is coming to a realization that we can keep down crime and violence without perpetuating mass incarceration. This report sets forth a concrete method for law enforcement to create a shift that can reverberate across the country.
This report recommends concrete reforms to federal prosecution practices to support 21st century criminal justice policies. This new approach would reorient prosecutor incentives and practices toward the twin goals of reducing crime and reducing mass incarceration. The Brennan Center convened a Blue Ribbon Panel of leading current and former federal prosecutors to inform the recommendations of this report.
Federal Prosecutor Priorities for the 21st Century
Prosecutors drive critical decisions in the criminal justice system. They make decisions about when, whether and against whom to bring criminal charges, as well as make recommendations for sentencing and set the terms of plea negotiations. As such, they are in a uniquely powerful position to bring change to the criminal justice system. Historically, prosecutors have focused their role on enforcing the law. Many prosecutors, however, are beginning to see their role more broadly. They are increasingly exploring how to define their work to converge with the growing consensus that the country can simultaneously protect public safety and reduce incarceration.
Part I of this report explains how federal prosecutors can help lead the way toward change. Because the 94 U.S. Attorneys’ Offices span the nation, they can help shift practices in states and localities as well. Part II puts forth recommended 21st century priorities for federal prosecutors. Setting clear priorities for success can encourage prosecutors to move toward more effective and just practices. The report recommends three core priority goals, which were discussed with enthusiasm at the Blue Ribbon Panel:
Reducing violence and serious crime;
Reducing prison populations; and
Though critical, these priorities are not exhaustive. There are other considerations as prosecutors continue efforts to improve the communities they serve. U.S. Attorneys may choose to pursue additional priorities that hinge on the unique challenges of each district. To that end, this report puts forth several optional priorities:
Reducing pretrial detention;
Reducing public corruption; and
Once priorities are established, success measures can help prosecutors target their progress toward these goals and keep their offices on target. Success measures are clear, concrete data points about performance outcomes that quantify progress toward goals. This report provides optimal success measures for each recommended priority, which can be implemented at the office level or the individual attorney level.
Creating Incentives to Drive Toward Priorities
There are several ways to implement new priorities. Part III of this report provides one powerful method that would shift office-wide and individual incentives to drive practices toward priorities: Success- Oriented Funding. As explained in previous Brennan Center reports, Success-Oriented Funding is a policy model that ties government funding as tightly as possible to clear priorities that drive toward the twin goals of reducing crime and reducing mass incarceration.4 Grounded in basic principles of economics and management, Success-Oriented Funding provides incentives to achieve these priorities, thereby changing practices and outcomes. It can be applied to all criminal justice agencies, actors, and funding streams.
The model first requires priorities that underscore the goals of reducing crime and reducing mass incarceration. These priorities for federal prosecutors are explained in Figure 1. The model then requires clear, concrete success measures that show whether progress has been made toward achieving those priorities.
Success-Oriented Funding can apply specifically to federal prosecutors by linking new priorities and success measures to dollars, including budgets, salaries, and financial rewards at the office or individual level. Notably, it can also apply indirectly, through office or individual evaluations even without direct financial rewards or consequences. This more subtle form of Success-Oriented Funding can often be the most potent.
U.S. Attorneys’ Offices can apply this approach as a best practice within their own offices. The Department of Justice can also implement this approach, making priorities and success measures consistent across U.S. Attorneys’ Offices.
This report recommends:
- U.S. Attorneys implement, as a best practice, self-evaluations of their offices using success measures for priorities;
U.S. Attorneys change individual prosecutor evaluations to include similar success measures;
The Justice Department adds success measures for core priorities when evaluating U.S. Attorneys’ Offices;
The Justice Department modifies the model individual prosecutor evaluation form to include similar success measures;
The Justice Department provides additional funding for U.S. Attorneys’ Offices that achieve certain success measures; and
Additional reforms, such as using the bully pulpit, expanding training and interview practices, expanding access to data, and increasing coordination for federal grant dollars.
By implementing these recommendations, federal prosecutors can shift outcomes to better reduce crime, dispense justice, and reduce incarceration. This shift in practices can help spur momentum for a similar shift in state and local practices in these districts, as explained in Part IV.