Strategies for Protecting Prosecutorial Discretion
This post was written by Preeti Chauhan, Professor of Psychology, John Jay College of Criminal Justice; Rachel Marshall, Executive Director, Institute for Innovation in Prosecution, John Jay College of Criminal Justice; and Dalia Racine, District Attorney, Douglas County, Georgia.
This year the Local Solutions Support Center will feature in-depth blog features authored by the members of our Research Cohort. Each member of our Research Cohort will explore a different topic and its connection to preemption.
A modified version of this blog will be in a forthcoming article by Marshall, R., Chauhan, P., & Racine, D. (2024). Protecting prosecutorial reform: Efforts to enhance public safety and minimize community harm. The Local Power & Politics Review.
States like Florida, Georgia, and Texas have launched aggressive efforts to reduce the authority of reform-minded prosecutors. This state interference, sometimes called “prosecutorial preemption,” undermines the discretion of locally elected prosecutors who advocate for evidence-based practices over traditional knee-jerk, tough-on-crime policies. These reform initiatives enhance public safety and reduce harm in communities. Yet, they face considerable opposition from state legislatures and governors aiming to restrict the autonomy of local officials.
“In the face of escalating challenges to prosecutorial discretion, there is an urgent need to safeguard reform approaches.”
In recent years, the election and re-election of reform-minded prosecutors across various states reflects the public’s call for change in how the criminal legal system functions. Elected on promises to reduce incarceration rates, address systemic disparities, and confront the root causes of interactions with the criminal legal system, these prosecutors have sought to redirect the focus of the criminal legal system from punitive measures to rehabilitative approaches. Central to their platforms has been lowering the footprint of the criminal legal system and using strategies such as declining to prosecute low-level offenses, reducing incarceration, and prioritizing diversion programs.
Various states have attempted to prevent these initiatives. Florida Governor Ron DeSantis suspended elected prosecutors Andrew Warren and Monique Worrell from office, Georgia is trying to establish a prosecutorial oversight commission to remove prosecutors based on their discretion, and Tennessee passed a law allowing the replacement of local prosecutors who categorically decline to bring charges. These actions infringe upon the democratic rights of voters and communities to choose their elected representatives.
In addition, a coordinated political narrative falsely suggests that these approaches lead to a surge in crime rates. However, emerging research from multiple jurisdictions contradicts this narrative. Studies from Suffolk County, Massachusetts, and Baltimore, Maryland, among others, have demonstrated that declining to prosecute certain non-violent offenses does not compromise public safety. Instead, it reduces recidivism and mitigates collateral consequences associated with criminal convictions, such as barriers to employment and education.
Furthermore, the collateral consequences of criminal convictions are considerable. Studies consistently indicate that the impact of convictions extends far beyond the immediate legal consequences, affecting individuals' access to employment, housing, and education. Approaches aimed at reducing unnecessary incarceration and diverting individuals from the criminal legal system have shown promising outcomes in mitigating these collateral consequences, thereby contributing to community well-being.
In light of these findings, the need to defend prosecutorial discretion against unjustified preemption efforts becomes even more urgent. Emphasizing the significance of evidence-based practices is pivotal in countering the misleading claims seeking to undermine the efforts of reform-minded prosecutors. Further, other efforts, such as educating and engaging voters, joining and creating support networks, being proactive in countering false narratives, advocating for legislative change, and mobilizing the community, can fortify the defense against prosecutorial preemption.
1. Educating and Engaging the Community
Prosecutors need to actively inform and engage their communities regarding the positive impact of reforms. They can do so by holding town hall meetings, working with community organizations, faith-based groups, and grassroots activists to keep voters informed and engaged. Creating easily understandable resources, hosting webinars, and developing educational materials can inform the public about the benefits of reform-oriented prosecutorial approaches and the detrimental effects of preemption.
2. Joining and Creating Support Networks
Prosecutors should join support networks that can aid in problem-solving, resource-sharing, and advocating for prosecutorial autonomy. Coalitions involving reform organizations, legal professionals, academics, and community entities should be used to amplify the issue beyond local jurisdictions. These networks and organizations, such as the Institute for Innovation in Prosecution or the Prosecutors Alliance of California, can leverage support from professional associations and build peer networks. Collaborating with associations like the Association of Prosecuting Attorneys can provide resources, legal expertise, and a unified voice in defending prosecutorial discretion. Further, building strong partnerships and alliances at the local level is also pivotal. Collaboration with judges, community leaders, and other stakeholders can create a united front against preemption efforts.
3. Evaluating and Disseminating Results
Partnering with researchers to evaluate reform outcomes is essential. Objective data can debunk misinformation and reinforce the benefits of reform policies. Engaging with academic institutions and research centers can provide evidence-based data and scholarly expertise to support prosecutorial autonomy. Organizations like the Prosecutorial Performance Indicators and the Data Collaborative for Justice can provide invaluable assistance in this regard.
4. Countering False Narratives in the Media
Transparency is key in combating misinformation. Reform-minded prosecutors should actively share success stories and positive data to counter misleading narratives propagated in the media. Community involvement in disseminating these stories is crucial for wider recognition.
5. Advocating for Legislative Safeguards
States should consider enacting legislation that safeguards prosecutorial discretion, prevents unwarranted interference from state officials, and ensures the autonomy of locally elected prosecutors. Empowering prosecutors and affected communities with legal defense and advocacy resources is crucial.
6. Supporting strategic litigation
Establishing legal defense funds and collaborating with advocacy groups and legal experts can help mount effective challenges against unconstitutional preemption efforts in courts. Strategic litigation can serve as a potent tool in protecting prosecutorial autonomy.
In the face of escalating challenges to prosecutorial discretion, there is an urgent need to safeguard reform approaches. The attempts by states such as Florida, Georgia, and Texas, among others, to suppress reform-minded prosecutors represent a direct threat to the principles of democratic governance and evidence-based justice. To strengthen this defense against prosecutorial preemption, we need a multi-pronged approach: we must continually monitor and assess of strategies’ effectiveness, we must correct false media narratives, and we must build coalitions with communities to ensure that the approaches they support are allowed to flourish.