An elected district attorney has the power to set policy for an office of hundreds of lawyers, which in turn has a ripple effect to thousands and thousands of cases every month in the system." - Nina Morrison

The Role of the Prosecutor

After people are arrested, their fate is largely in the hands of a prosecutor. Whether they are penalized for poverty, have a fair shot at fighting charges, know what evidence they are confronting, or are locked up are all impacted by prosecutors’ decisions and the recommendations prosecutors make to the judges handling their cases.

The lead prosecutor in a community sets the policies and practices that inform how all of these critical decisions are made in the local prosecutor’s office. Your lead prosecutor has a duty to be responsive to you and other constituents and to run the office in a manner that is reflective of the community’s vision for its justice system. The only consistent tool of public accountability is elections, as the vast majority of lead prosecutors are voted into office. But when voters reach the ballot box, voting for their lead prosecutor becomes a bit of a black box in and of itself. 

Most voters have very little information about candidates’ platforms, the policies they endorse, or their views on how to manage a prosecutor’s office.

Lead prosecutors and their executive staff define the goals of the office, instruct line prosecutors on how to approach decision making on their cases, and evaluate line attorneys based on those goals and instructions. Line prosecutors are responsible for their caseloads and exercise their discretion in the key decisions of their cases. Depending on the extent to which the lead prosecutor implements policies that guide or dictate line prosecutors’ decisions, how they approach these key decisions can vary significantly not just from office to office, but also within a single office. A lead prosecutor’s influence on how the local justice system operates also extends beyond the office and staff to other system stakeholders. Lead prosecutors have considerable influence on other actors in their local system, in particular the police, judges, and juries. 

A prosecutor’s impact on criminal cases can be seen in

7 Critical Decision Points

A line prosecutor’s decision making can essentially be organized into seven basic categories. Click on a case stage to learn more about a prosecutor’s decision at this point and find key questions you can ask your local prosecutor’s office to better understand how those decisions are being made in your community.

Charging

After an arrest, police present the case to a prosecutor, who decides whether to prosecute the individual and what charges to bring. The charging decision affects all subsequent decisions in a person’s case, including the amount of bail, the plea deal offered, and the length and type of any ultimate sentence, including whether the sentence triggers immigration consequences like deportation.


The prosecutor can choose to keep the charges suggested by law enforcement, adjust them, or dismiss the case altogether. This decision is based on the evidence presented, the content of state laws outlining what constitutes particular crimes, and the office’s charging policies. These policies typically outline how prosecutors should evaluate a case for sufficient evidence and how they should weigh various factors—like the arrested person’s past contact with the criminal justice system, the victim’s cooperation, and the harm caused by the alleged crime—in making a charging decision. Charging decisions can also be impacted by community and political factors, like a lead prosecutor’s relationship with local law enforcement or public perceptions and media depictions of crime. The charging decision is critical: it limits the options that prosecutors, defense counsel, and judges have in all subsequent decisions in the case. For example, if the prosecutor selects a charge that carries a mandatory minimum sentence, in essence the prosecutor has chosen the ultimate potential sentence at the time of charging, rather than the judge or jury at the time of sentencing.

How does this work in practice? Say a police officer refers a case to the prosecutor’s office as a burglary charge. After reviewing the evidence and considering the office’s charging policies, the prosecutor could decide it’s more appropriate to charge the individual with trespassing, a lesser offense. The lesser charge increases the likelihood that the individual will be released pretrial or eligible for diversion programs. This less serious offense also serves as the starting point for plea negotiations.

The prosecutor could have declined the case instead, eliminating any criminal legal consequences. Maybe the prosecutor feels there isn’t sufficient evidence or that the offense is minor and it wouldn’t be in the interest of justice, public safety, or the office’s resources to prosecute it. Declining to prosecute cases is the most direct way that prosecutors can mitigate the overreach of the criminal justice system. Far too often, criminal legal consequences are the response to societal issues like poverty and mental illness. Having contact with the criminal justice system often only further exacerbates these underlying issues, and declining to prosecute such cases can help to stop that cycle. In this way, prosecutors can curb some of the detrimental effects of overpolicing, particularly in communities of color, by making thoughtful decisions about when not to prosecute.A 2014 Vera study of prosecution in Manhattan showed just such a possibility. Researchers found that prosecutors were more likely to dismiss the cases of people of color than similarly situated white people. In the study, researchers noted this may be an indication of leniency or that prosecutors found a higher proportion of arrests of people of color did not have sufficient evidence or grounds to prosecute than arrests of similarly situated white people. Besiki Kutateladze, Whitney Tymas, and Mary Crowley, Race and Prosecution in Manhattan: Research Summary (New York: Vera Institute of Justice, 2014), 5, https://perma.cc/NP3C-LPLN. Similarly, in Mecklenburg County (Charlotte), North Carolina, black people “were more likely to have more arrest charges and more serious arrest charges than whites,” but also were “more likely to have their top arrest charge rejected.” Vera Institute of Justice, A Prosecutor’s Guide for Advancing Racial Equity, 2014, 15.

Unlock the black box

  • What office guidelines or policies inform prosecutors’ charging decisions?

  • Does the office analyze its decisions at charging by race and gender to identify where disparities exist and, if so, does it take any meaningful action to remedy those?

  • Are there any categories of less serious charges that the office instructs prosecutors to decline to prosecute in most instances?

Bail

Bail is supposed to ensure that people will return to court for future hearings on their cases. But money bail creates a perverse system where people with money—regardless of the danger they may present—are able to buy their freedom—while people without money remain in jail. Although prosecutors don’t set bail, they can play a vital role in changing bail practices because their recommendations are one of the most significant factors affecting whether bail is set and in what amount.Boston College Law Review 54, no. 4 (2013), 1667-1725 (discussing prosecutorial anchoring in plea bargaining). A 2012 study found that in New York City, the relationship between prosecutors’ bail requests and judges’ decisions was evident, even after controlling for other variables affecting the judges’ decisions. The prosecutor’s bail request was found to be the most influential factor in whether individuals were released on their own recognizance and almost solely predicted what bail amount the judge would set. See Mary T. Phillips, A Decade of Bail Research in New York City (New York: New York City Criminal Justice Agency, Inc., 2012), 69, https://perma.cc/P566-SWLQ. These findings are consistent with a 2004 report on release and bail that discussed the consequence of prosecutor’s bail request at length. See Mary T. Phillips, Release and Bail Decisions in New York City (New York: New York City Criminal Justice Agency, Inc., 2004), 3-6, >span class="s2">https://perma.cc/DLB5-UWYP. Several experiments with the bail recommendations also indicate that the judges are most influenced by the prosecutors’ recommendations and additional information about the individual’s record and community ties did not affect the judge’s bail decision, except in homicide cases. The research suggested that variables outside of the district attorney’s and defense attorney’s recommendations play such a small role because their recommendations already take these variables into account. See Ebbe B. Ebbesen and Vladimir Konečni, “Decision Making and Information Integration in the Courts: The Setting of Bail,” Journal of Personality and Social Psychology 32, no. 5 (1975), 805-21, 811, https://perma.cc/2YX4-LJUH. Court watchers in Cook County (Chicago), Illinois found that judges followed prosecutors’ recommendations for release in 90 percent of cases. See The Coalition to End Money Bond, Monitoring Cook County’s Central Bond Court: A Community Courtwatching Initiative (Chicago: The Coalition to End Money Bond, 2018), 34, https://perma.cc/LUU9-RQRD.


Money bail is one of the most pressing injustices in our nation’s criminal legal system. It makes wealth a prerequisite for liberty and causes hundreds of thousands of presumptively innocent people across the country to be held in jail pretrial every day simply because they cannot afford to pay for their release.For the number of people held pretrial in the United States, see Prison Policy Initiative, “Mass Incarceration: The Whole Pie 2018” (465,000 unconvicted people are held in U.S. jails on any given day). This negatively affects the outcomes of their cases. Pretrial detention increases the likelihood that someone will plead guilty, often because it is the only way to speed up their release from jail.See Will Dobbie, Jacob Goldin, and Crystal S. Yang, “The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges,” American Economic Review 108, no. 2 (2018), 201-40 (finding that pretrial detention significantly increases the probability of conviction, primarily through an increase in guilty pleas), https://pubs.aeaweb.org/doi/pdfplus/10.1257/aer.20161503. And people who are detained pretrial receive harsher sentences than people who remain home in their communities while their cases are pending.See Paul Heaton, Sandra Mayson, and Megan Stevenson, “The Downstream Consequences of Misdemeanor Pretrial Detention,” Stanford Law Review 69, no. 3 (2016), 711-96 (finding that detained defendants are 25 percent more likely than similarly situated people who are released to plead guilty, 43 percent more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average), https://perma.cc/7PDL-AFA5.

Although a judge or magistrate ultimately makes bail determinations, a prosecutor typically weighs in with a recommendation for pretrial release or bail in a particular amount. That recommendation is accorded great deference. A lead prosecutor may provide staff with guidelines or training about making pretrial release recommendations, such as always requesting bail in specific types of cases or routinely recommending release in lower-level cases. In some jurisdictions, prosecutors’ offices do this liberally, while in others, they rarely if ever consent to release. By recommending release in more cases, prosecutors can play a powerful role in minimizing pretrial incarceration.

Unlock the black box

  • What guidelines or training do prosecutors receive to inform their bail recommendations?

  • Does the office analyze its bail recommendations and bail ultimately set by race and gender to identify where disparities exist and, if so, does it take any meaningful action to remedy those?

  • Does the office recommend release in some cases? If so, how often and in what kinds of cases?

Diversion

Diversion programs offer a wide range of alternatives to traditional prosecution. They can be run by the courts, law enforcement, community-based organizations and nonprofits—or the prosecutor’s office. Diversion programs can provide an effective off-ramp from the criminal justice system to services and treatment related to the underlying issues that may lead to someone’s alleged criminal behavior.


Some prosecutors’ offices offer programs that divert people from traditional case processing. These programs can either begin “pre-charge”—meaning a person has the opportunity to participate before a case is even issued—or “post-charge”—after the case is filed with the court. Depending on the type of program, successful completion can result in no criminal record at all, a dismissal of charges, or even expungement. While eligibility requirements for diversion vary, many programs only accept people charged with certain low-level offenses or those who have had little to no prior contact with the criminal justice system, among other limiting factors.See Michael Rempel, Melissa Labriola, Priscillia Hunt, et al., NIJ’s Multisite Evaluation of Prosecutor-Led Diversion Programs (New York: Center for Court Innovation, 2018), https://perma.cc/GZD6-S49E. But a few offices have recognized that diversion options should also be available to people who are charged with more serious crimes, who often need the same access to services and treatment.See for example Philadelphia District Attorney’s Office, Pre-Trial Diversion Programs (Philadelphia, PA: Philadelphia District Attorney’s Office, 2016) (two diversion programs for those charged with felonies), https://perma.cc/E4VU-4VPK; and Multnomah County, Oregon’s felony diversion program featured in the “Sentencing” section spotlight of this guide. Despite the benefits of diversion at the time of prosecution, prosecutors’ offices should be wary of net-widening: they should not divert people whose cases they could reasonably decline to prosecute. Lead prosecutors must also be mindful of the potential perverse incentives of diversion programs run by their office. Programs that require participants to pay a fee are inequitable in terms of who benefits from them and incentivize line prosecutors to divert cases they could dismiss.

Moreover, restricting eligibility to individuals with the lowest risk level is not appropriate, as placing too many requirements on them can be counterproductive to their pretrial success.See Marie VanNostrand, Kenneth J. Rose, and Kimberly Weibrecht, State of the Science of Pretrial Release Recommendations and Supervision (Rockville, MD: Pretrial Justice Institute, 2011), https://perma.cc/46MZ-GTL8. Also see Vera Institute of Justice, The Potential of Community Corrections: To Improve Communities and Reduce Incarceration (New York: Vera Institute of Justice, 2013), 13, https://perma.cc/NJ69-3FSS. For example, daily or even weekly programming may be disruptive to other responsibilities central to the individual’s life, such as a job or childcare. If the individual has to miss diversion program requirements due to other responsibilities, they may fail the program and be at greater risk of being sentenced to incarceration. On the other hand, successful completion of requirements can mean that the person no longer faces criminal legal consequences or that they will not be sentenced to incarceration.

Unlock the black box

  • Does the office offer any diversion programs? In what types of cases? Who is eligible for those programs and what are the requirements and costs of participation?

  • Does the office analyze diversion referrals, acceptance, and success by race and gender to identify where disparities exist and, if so, does it take any meaningful action to remedy those?

  • What happens to the cases of individuals who successfully complete the diversion program? Are their charges dropped by the office?

Discovery

The evidence in criminal cases is known as “discovery”—and its availability to the defense is largely controlled by the prosecutor. The Supreme Court has affirmed that people are entitled to discovery before a criminal trial, but what is turned over and when varies from office to office.


Imagine facing charges and having very little information about the evidence being brought against you by the prosecutor on your case. Clearly, this would affect how you and your lawyer are able to prepare your defense and the strength of your case. The Supreme Court ruled in Brady v. Maryland that prosecutors must turn over all discovery that is favorable to the defense prior to trial.Brady v. Maryland, 373 U.S. 83 (1963), https://perma.cc/6UBT-ABSN. But in some states, this can happen even on the day of the trial itself.New York Consolidated Laws Criminal Procedure § 240.45. Prosecutors also still have discretion to determine what evidence is “favorable” or not.

Although federal and state laws set the baseline for discovery practices, there is a growing recognition that it’s too low.See generally Darryl K. Brown, “Discovery” in Reforming Criminal Justice—Volume 3, edited by Erik Luna (Phoenix, AZ: Academy for Justice, 2017), https://perma.cc/BV99-P77H. A handful of states have gone beyond Brady and reformed their discovery laws to require prosecutors to disclose more evidence earlier in a case, while others have set broad requirements defining what kinds of evidence must be turned over.See Fair and Just Prosecution (FJP), Promoting Transparency and Fairness through Open and Early Discovery Practices (San Francisco, CA: FJP, 2018), https://perma.cc/LE4C-MFGA. For states with early disclosure, see Arizona Rule of Criminal Procedure 15; Colorado Rule of Criminal Procedure 16; Minnesota Rules of Criminal Procedure 9.01 & 11.01; and New Mexico Rule of Criminal Procedure 5-501. And, spurred by the more than 2,000 wrongful convictions that have been overturned nationwide, there is a movement within prosecutors’ offices to improve discovery practices to prevent such unjust outcomes.For the number of convictions that have been overturned, see National Registry of Exonerations, accessed September 9, 2018, https://perma.cc/5V25-ZB8S. For the movement to improve discovery practices, see FJP, Promoting Transparency and Fairness, 2018; and Center on the Administration of Criminal Law, Establishing Conviction Integrity Programs in Prosecutor’s Offices (New York: New York University School of Law, 2012), https://perma.cc/92KX-8UE9.

While such reform is promising, there is still no right to discovery in plea bargaining, which is how about 94 percent of felony cases are resolved.Dylan Walsh, “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining,” Atlantic, May 2, 2017, https://perma.cc/6KXU-K5RE. The result? Many people never see a single piece of evidence in their cases before they plead guilty. Lead prosecutors must implement more timely and open disclosure practices in their offices even if they are in a state that hasn’t yet reformed its discovery laws. They can issue guidelines to clarify what information is to be turned over and when, or even institute a policy of open file discovery to maximize disclosure.

Unlock the black box

  • Does your local prosecutor's office turn over discovery to defense counsel early enough in the case so that the individual is given a fair chance to fight their case?

  • What materials are disclosed to the defense?

  • What does the office do to ensure that evidence favorable to the defendant is turned over as Brady requires?

Case Processing

The Sixth Amendment guarantees the right to a speedy trial—and prosecutors play a big role in ensuring this right is upheld. Every decision a prosecutor makes impacts the timely resolution of a case. Although many states have speedy trial statutes that recommend specific timeframes for charges to be filed and for the case to go to trial, these aren’t binding. In practice, it can take months, even years, for a case to reach a resolution.


While a case is pending, people and their families remain in limbo. And because of case delays, people can end up spending more time in jail pretrial waiting for their day in court than they would be sentenced to if found guilty. Timely resolution of cases is also in the best interests of victims, witnesses, and the public who seek responses to crime and harm that’s been done.

Prosecutors impact the time it takes to resolve a case by how they approach each step. A prosecutor can contribute to timely disposition of cases by turning over discovery as early as possible in a case, preparing a plea offer as soon as a case is filed, and being ready to proceed with the next step in a case—motions, conferencing, and trial—at all scheduled court dates. Prosecutors should also collaborate with defense counsel, judges, and court staff to quickly resolve cases that are unlikely to go to trialFor an example of speedy trial rules, see American Bar Association, “Criminal Justice Section Standards: Speedy Trial—General Principles,” https://perma.cc/Q23M-85TG.

The case of Kalief Browder in New York City offers an example of the profound consequences of case processing delays. Browder was held pretrial on Rikers Island for three years, beginning when he was 16 years old, as prosecutors repeatedly delayed—then eventually dropped—his case after more than 30 scheduled court dates.Jennifer Gonnerman, “Before the Law,” New Yorker, October 6, 2014, https://perma.cc/VB2H-YEG4. He struggled with panic attacks and mental health disorders during and after his incarceration and committed suicide two years after his release, at the age of 22. His story, and his openness in telling it, catalyzed court actors, legislators, and other government and cultural leaders to examine inefficient court practices and pretrial detention.Jennifer Gonnerman, “Kalief Browder, 1993–2015,” New Yorker, June 7, 2015, https://perma.cc/H8PA-GYTC.

Unlock the black box

  • What policies and procedures does the office have in place to comply with state speedy trial guidelines?

  • What is the average time for misdemeanor and felony cases charged by the office to be resolved?

  • Does the office have a procedure for early and expedited case resolution?

Pleas

Nowhere is the power of the prosecutor more evident than during the plea bargaining process, a practice in which the prosecutor largely controls the charges offered, the sentence length, the type of sentence, and any conditions of community supervision.On the prevalence of plea bargaining and the power of prosecutors in this process, see Walsh, “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining,” 2017; Kari Lindberg, “More People are Pleading Guilty to Crimes They Didn’t Commit, So How Can We Stop It?,” Rewire.News, February 7, 2018, https://perma.cc/2P45-GMP6; Emily Yoffe, “Innocence is Irrelevant,” Atlantic, September 2017, https://perma.cc/93CP-JC9T; Erica Goode, “Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals,” New York Times, March 22, 2012, https://www.nytimes.com/2012/0...; and Gaby Del Valle, “Most Criminal Cases End in Plea Bargains, Not Trials,” The Outline, August 7, 2017, https://perma.cc/K5JW-TJVV.


Viewers of shows like Law & Order might think most defendants have their day in court in front of a judge and jury. In reality, very few criminal cases go to trial. Most are resolved through plea deals, a process that is almost entirely controlled by prosecutors. In most cases, prosecutors have full discretion over what plea offers to make, the terms of the offer, when to offer a plea, and how long a person has to accept or reject the offer. They also choose whether to recommend a particular sentence as part of the plea—whether a sentence to incarceration or community supervision. In all of this, the accused person is required to waive the standard of proof and the right to discovery and a trial in exchange for a guilty plea. Oftentimes, a plea is the only way an individual can quickly return home if they are in jail on bond in a case that would otherwise take months or years to process.

The starting point for plea negotiations is the most serious charge filed in the case. Harsher sentencing laws passed by many state legislatures between the early 1970s and the late 1990s significantly increased the length of the prison sentence that a person would face at trial in many cases, especially those involving the possession and distribution of drugs.On the rise of longer and mandatory sentences, see Ram Subramanian and Ruth Delaney, Playbook for Change? States Reconsider Mandatory Sentences (New York: Vera Institute of Justice, 2014), 6, https://perma.cc/Z8KP-PP4G. On how this affects plea bargaining, see Jed S. Rakoff, “Why Innocent People Plead Guilty,” New York Review of Books, November 20, 2014, https://perma.cc/S4L6-8NN7.

As a result, prosecutors have remarkable leverage in plea bargaining, forcing the accused to choose between their right to go to trial or a significantly reduced sentence.

A lead prosecutor may issue guidelines about plea offers. Even so, prosecutors’ tactics during the plea negotiation process go nearly unchecked by outside actors other than the defense counsel they bargain with. In fact, most states explicitly forbid or strongly discourage judges’ involvement in plea negotiations.See generally Rishi Raj Batra, “Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective,” Ohio State Law Journal 76, no. 3 (2015), 555-97. Although a judge must agree to accept a plea, it is rare for a judge to dismiss or alter a plea deal reached by the prosecutor and defense.See Daniel S. McConkie, “Judges as Framers of Plea Bargaining,” Stanford Law & Policy Review 26, no. 1 (2015), 61-118 (describing how judges may be hesitant to intervene in plea deals or challenge agreed-upon deals because they feel they have the least information about the case), https://perma.cc/BKZ3-4J64. See also Darryl Brown, “The Judicial Role in Criminal Charging and Plea Bargaining,” Hofstra Law Review 46, no. 1 (2018), 63-85, https://perma.cc/J7XA-FVV8. In fact, it required an opinion from the Massachusetts Supreme Judicial Court to affirm that judges in Massachusetts could impose sentences lesser than those agreed on in a plea deal. See Commonwealth v. Rodriguez, 461 Mass. 256 (2012), https://perma.cc/U4ZD-BFVQ.

Unlock the black box

  • What guidelines or policies are prosecutors given for making plea offers?

  • Does the office analyze its plea offers by race and gender to identify where disparities exist and, if so, does it take any meaningful action to remedy those?

  • How often are plea offers made that are below the top charge? What about a case would allow a prosecutor to come down from the top charge?

Sentencing

If a person has been found or pled guilty, the prosecutor typically recommends a sentence to the judge. Prosecutors have tremendous discretion within sentencing ranges set by state law and their recommendations carry great weight, affecting whether someone returns home or whether they are incarcerated for a few months or a number of years. Prosecutors are uniquely positioned to influence judges to impose sentences that are fair and focused on addressing the needs of both the victim and the person convicted.


After an individual has been convicted of a crime, the prosecutor can recommend that they face no further consequences, a sentence of probation, or a sentence to jail or prison time. Because of their contact with witnesses and victims and their investigation of the case, prosecutors’ sentencing recommendations often carry significant weight with judges, so they must carefully weigh their decisions, taking into account what is fair for the accused, the victim, and the public at large.On the effects of prosecutors’ sentencing recommendations on judicial decisions, see Birte Enough and Thomas Mussweiler, “Sentencing Under Uncertainty: Anchoring Effects in the Courtroom,” Journal of Applied Psychology 31, no. 7 (2001), 1535-51 (finding that judicial sentencing decisions are assimilated to the sentence demanded by the prosecutor). State statutes set broad ranges for the sentencing options available based on the charge, but within that range prosecutors have tremendous discretion in their sentencing recommendation. A prosecutor’s office may have guidelines for the range of sentences its attorneys should recommend, or it may leave sentencing recommendations up to individual attorneys, causing practice to vary within a single office.

The law could permit the prosecutor to recommend anything from no incarceration to several years of incarceration for a particular conviction charge, two case outcomes that would have significantly different impacts on the individual’s life. In other cases, the prosecutor’s recommendation might range from a single decade to several decades. Notably, in many instances when victims of violent crimes are given an opportunity to choose between incarceration or an alternative response to violence, they choose the alternative. Many survivors recognize that a system driven by mass incarceration does not make them or their communities safer.Danielle Sered, Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration (New York: Vera Institute of Justice, 2017) 12-13, https://perma.cc/D3DD-GMAR. See also Alliance for Safety and Justice (ASJ), Crime Survivors Speak: The First-Ever National Survey of Victims’ Views on Safety and Justice (Oakland, CA: ASJ, 2016), 5 (victims surveyed supported rehabilitation over punishment by a 2 to 1 margin and preferred holding people accountable for the harm they’ve inflected through social services, treatment, community service, and community supervision rather than incarceration by a margin of 3 to 1), https://perma.cc/NBU2-LFLU.

Ask Your Prosecutor

  • What guidelines or policies are attorneys given to inform their sentencing recommendations?

  • Does the office analyze its sentencing recommendations by race and gender to identify where disparities exist and, if so, does it take any meaningful action to remedy those?

  • Does the office have a policy for recommending sentences other than incarceration in some cases?

Why it Matters


The decisions that prosecutors make every day directly impact the lives of those who have been ensnared in the criminal justice system. When prosecutors use their discretion to give individuals a chance, there can be different results.

While putting herself through pharmacy school in 2011, Patricia O’Malley received the devastating news that her high school boyfriend and his parents had been brutally murdered. Dealing with this tragedy and its aftermath, which required her to testify at trial about the gruesome murders, caused her to go from taking pills occasionally to get high, to needing them to function every day. By the time Patricia started working as a pharmacist at CVS in 2014, her addiction to pills was out of control. The pharmacy’s loss prevention unit discovered that pills were missing and used the store video surveillance system to identify Patricia as the source. The investigation was eventually referred to the District of Columbia U.S. Attorney’s Office for prosecution. Instead of pursuing an indictment on various felony charges associated with the stolen pills, however, the prosecutor decided to pursue a different course.  

The prosecutor recognized that Patricia’s actions were clearly driven by a substance use disorder, and she felt strongly that a felony conviction would only hinder Patricia’s recovery and her ability to move forward with the rest of her life. The prosecutor let Patricia enter into a deferred prosecution agreement, which would allow the case to be dismissed if she successfully completed a period of supervision. Patricia saw this as a second chance and immediately focused on accessing the therapy and narcotics anonymous groups that she needed to heal. Patricia has not only maintained her sobriety for the last two-and-a-half years, but she is also active in two narcotics anonymous groups, including one specifically for pharmacists. She has taken a leadership role and serves as a mentor to those who are just beginning their road to recovery. Patricia is frequently invited to speak at in-patient rehabilitation centers and to outpatient groups about her experiences. She is grateful that she had a prosecutor who saw past her actions and recognized her potential.

Your Local Prosecutor Represents You

Prosecutors are accountable to the communities they serve not just on Election Day, but throughout their terms. They are responsible for representing “the people,” including individuals who are accused and their loved ones, those who are harmed, and all who live in their jurisdiction. In this moment of unprecedented focus and advocacy around prosecutors and reform, members of the public have a profound role to play in how prosecutors reshape their role to pursue equal justice and reduce incarceration. 

You can look up your local prosecutor, when they were elected, their stances on six key policy areas, and their contact information on Color of Change’s website “Winning Justice.” Make your voice heard. Let your local prosecutor know what matters to you by asking them the questions in this guide and others that are important to you in order to better understand how decisions are currently being made for your community. Tell your prosecutor what you would like your local justice system to look like and the goals you believe they should prioritize.

Key Questions for Community Members