Vera Institute of Justice | Your Local Prosecutor Represents You
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 find key questions about each decision point that can serve as a tool for you to assess how your office’s policies and practices contribute to the problems of mass incarceration and racial equity, and paths forward to work on solutions. 

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.



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 cases?

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.



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.


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.



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.


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.



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.



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.


Unlock the black box

  • 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 Preguntas Clave para Miembros de la Comunidad