Reform-Minded Prosecutors Should Use Research to Support Their Movement
The Local Solutions Support Center is excited to continue a blog series featuring our 2022 Research Cohort. Each month, a member of our Research Cohort will explore a different topic and its connection to preemption. This month’s post is by Preeti Chauhan, professor of psychology at John Jay College of Criminal Justice and the Graduate Center, City University of New York (CUNY). Chauhan explores how some prosecutors are using their own discretion to create a less punitive and a more fair and equitable criminal legal system – and how state preemption can impact their ability to do so.
Historically, prosecutors have been granted wide discretion on how to move forward with criminal cases. This discretion allows prosecutors to determine whether to charge an individual, what to charge them with, and the parameters around plea-bargaining, all necessary within the context of large caseloads and limited resources. This discretion can also either exacerbate, or reduce, inequities within the criminal legal system.¹
Recognizing this, certain prosecutors are using their discretion to create a less punitive and a more fair and equitable criminal legal system.² For example, some prosecutors are declining to prosecute certain offenses (predominantly nonviolent misdemeanor offenses), and others are recommending pretrial release rather than holding individuals on cash bail. These approaches typically have an outsized benefit for people from low-income backgrounds and those of color.³ ' ⁴ In response to this reform movement, conservative governors across the country, including in states such as Florida and Texas, are trying to limit local prosecutors by allowing – and in some cases requiring – state attorney generals to insert themselves into local matters and actually prosecute certain cases, or exposing local prosecutors who exert their discretion in this way to civil or criminal liability for declining to prosecute certain offenses.⁵
These prosecutors continue to win elections – and re-election – in both Red and Blue states, and this power grab undermines their ability to carry out the reforms that got them elected in the first place. For reform-minded prosecutors to maintain their discretion in the face of increasing state interference, they need to build a strong evidence base that negates scare tactics and objectively demonstrates how this prosecutorial discretion has a positive impact on communities and public safety.
Emerging research shows that declining to prosecute nonviolent misdemeanors and releasing individuals instead of detaining them pretrial has public safety benefits, despite claims by some who say doing so increases crime.⁶ Using data from Suffolk County (Boston), Agan and colleagues found that individuals who were arrested for nonviolent misdemeanor offenses, but were not prosecuted, were less likely to have a criminal complaint in the following two years. The effects were the largest among those arrested for the first time, indicating that averting individuals away from the system, especially at the outset, has public safety benefits.⁷ Lowenkamp found that pretrial detention in Kentucky was associated with a higher likelihood of failure to appear in court, a higher likelihood of rearrest, an increased likelihood of a sentence, and a longer sentence, compared to those who were not detained pretrial.⁸ Heaton found similar results in Harris County, TX.⁹ Adding to the literature, Agan and colleagues found no relationship between the election of progressive prosecutors and crime rates across 35 jurisdictions.¹⁰
While this emerging research is promising, the evidence base needs to grow to demonstrate generalizability to other jurisdictions. Further, additional metrics such as equity, public perceptions of the legitimacy of the criminal legal system, and whether these initiatives ultimately reduce costs to the community while maintaining public safety should also be conducted.
Reform-minded prosecutors' offices should support such research in their jurisdiction and build evidence that counters false narratives around increasing crime rates. They can do so by:
Building their offices' data capacity. In their survey of prosecutors' offices, the Urban Institute found only 65 of 158 prosecutor's offices (41%) were capturing seven essential metrics around a office’s functioning, including: (1) the number of cases coming into an office, (2) the number of charges at arrest, (3) the number of final charges, (4) the number of cases declined, (5) the number of cases dismissed, (6) the number of cases resolved by guilty plea, and (7) the number of cases resolved by trial. Further, less than half of the 158 offices collected data on pretrial decision-making.¹¹ The Prosecutor Performance Indicators project provides practical guidance on measuring critical data that examine effectiveness, efficiency, and fairness.
Partnering with external researchers to assess their initiatives. Given resource constraints, offices would benefit from researcher-practitioner partnerships. Researchers can assist with fundraising, provide staff with the requisite skillsets to build data capacity, and conduct an external research evaluation. Notably, researcher independence is critical to the credibility of the results to the outside world. The Research Network on Misdemeanor Justice coordinated by the Data Collaborative for Justice at John Jay College of Criminal Justice provides examples of such successful local researcher-practitioner partnerships in seven jurisdictions.
Ensuring the results are known to the community. To be transparent and contribute to the knowledge base, efforts must be made to disseminate the results to the community, other stakeholders, and the broader criminal legal system literature base. Dan Satterberg and Ronald Wright highlight that prosecutors should engage with the whole community, not just victims. They further acknowledge that transparency is essential to community engagement and prosecutor accountability.¹²
State preemption efforts have often been based on false claims that declining to prosecute certain cases or releasing individuals pretrial undermines public safety. Building a body of research, both generally and within specific jurisdictions, can help prosecutors counter these claims, better understand the impact of their initiatives, and determine if all goals of their initiatives are being met. Further, this will allow reform-minded prosecutors and the citizens who elected them to office to advance criminal justice reforms and create a more equitable legal system.