“The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People." ~ Carol A. Corrigan

You Matter

Whether you are an elected lead prosecutor or a line prosecutor, you have an immense amount of power and influence in the criminal justice system. Your duty to serve the people of your jurisdiction is not limited to victims of crimes, but includes the larger community, including those who are impacted by a system that unduly criminalizes and excessively punishes behaviors that should be addressed in other ways. As criminal justice reform efforts focus on the problem of mass incarceration, the role of prosecutors is under scrutiny in a way never seen before. Local communities are becoming informed and engaged and are demanding a fairer and more just system by electing lead prosecutors who reflect their values.

“The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of "The People" includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name." ~ Carol A. CorriganCarol A. Corrigan, “On Prosecutorial Ethics,” Hastings Constitutional Law Quarterly 13, no. 3 (1985-1986), 537-43, 538-39, https://perma.cc/VAC7-5DEP.

The traditional law and order model of handling cases has only exacerbated the overuse of incarceration, racial disparities in case outcomes, and the deterioration of community trust in law enforcement. As leaders, it is time to look in the mirror and assess how your office contributes to an unjust system. A new class of elected prosecutors is reshaping the role and committing to reduce the reach of the criminal justice system. They are assessing the impact of their offices at an aggregate level by reviewing office policies and gathering and analyzing data. Based on this information, they are training line prosecutors to decline or divert more cases and to aggressively pursue alternatives to incarceration. They are using data to assess how race-neutral decisions are disproportionately impacting people of color at all phases of a case—from charging to bail to plea bargaining to sentencing. This prosecutor is also committed to sharing her policies publicly so that the community she serves is informed and empowered to hold her accountable.

Who we are

In September 2017, Vera launched its Prosecution Reform Program, which builds on our prior prosecution and racial justice work. In this program, we are working with a new set of prosecutor’s offices to

end mass incarceration;
address racial disparities in the criminal justice system;
increase transparency in prosecutors’ offices and make them more accountable to the communities they serve; and
ensure that all of these changes are sustainable.

In partnership with these offices, we analyze prosecution, jail, and prison data to identify specific policy and practice reforms the office can make to achieve these shared goals. Together, we evaluate everything from charging policies to sentencing recommendations under a new framework focused on a fair and just outcome for the people impacted—not just victims, but also those charged and the community as a whole. This person-based—rather than case-based—and data-driven approach focuses resources on addressing the underlying causes of crime and reserving incarceration for those who clearly demonstrate a threat to community safety.

What you can do

The weighty problems in our criminal justice system require bold solutions and, as prosecutors, you are well-equipped to lead the charge for change. Although the case decision points that follow serve to educate community members about the role of prosecutors, each section is followed by key questions that community members are encouraged to ask of you. These questions can serve as a tool for you to assess whether your office’s policies and practices contribute to the problems of mass incarceration and racial inequity—or are part of their solution.

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
Bail
Diversion
Discovery
Case processing
Pleas
Sentencing

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.

Spotlight

Declining to prosecute offenses often associated with poverty
Declining to prosecute marijuana possession

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?

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.

Spotlight

Recommending pretrial release on lower-level cases

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.

Spotlight

Connecting individuals with social services rather than pursuing traditional prosecution

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.

Spotlight

Providing all evidence as early as possible in a case

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.

Spotlight

Resolving cases in a timely manner

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.

Spotlight

Highlighting individual and system costs of incarceration and reducing probation sentences
Probation sentences that connect people to social services rather than sending them to prison

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.

Where Should You Start?

Review office policies, trainings, and practices that inform decision making. Begin by answering the questions in this guide about how prosecutors in your office are guided in their decision making. Communicate with your line staff so that they understand your priorities and train them on how new policies will be implemented.
Track decisions made by prosecutors and their impact on case outcomes, individuals, and the community. Without data, it is difficult for a lead prosecutor to know whether line attorneys are making decisions that align with office priorities. Your office should track and analyze charging decisions, bail recommendations, and plea offers to see if they reflect the policies you put in place.
Explore what other offices are doing to reduce incarceration and ensure equity. While each office and the community it serves have specific needs and challenges, there is a great deal that offices can learn from each other. Look to what other offices—as well as advocacy groups—have championed to understand potential paths forward.
Engage the community well beyond Election Day. Prosecutors have a responsibility to be accountable to and transparent with their constituents. Ask members of the community what matters to them and what they want the office to prioritize—and publicly release data that demonstrates progress toward your campaign promises and goals.
Unlock the black box. For yourself, your staff, for your community. Analyze data about charging decisions, bail and sentencing recommendations, plea bargaining, and more to determine if case outcomes in your office reflect your goals and priorities. Share the results with your staff and the constituents you serve—and make changes where necessary

Key Questions for Community Members