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Prosecutors' Vital Role in Reforming Criminal Justice

To address racial disparities, they need to collect and analyze more data to evaluate promising policies and better inform their indictment decisions and sentencing recommendations.

The nation's criminal-justice system is at a pivotal moment. With rising public revulsion at the brutality inflicted on Black Americans by law enforcement, racial-justice groups have brought conversations around racial disparities and the justice system into the mainstream.

Prosecutors have played a historic role in exacerbating these racial disparities, and they have an equally vital role to play in the systemic reforms that are needed to turn an unfair system around. To ensure that reforms are set up to succeed, it is incumbent on modern prosecutors to collect as much relevant data as they can and analyze it to measure disparities and evaluate policies that seek to create a more-just system. To that end, prosecutors will benefit from a careful review of a recently published report from the Council on Criminal Justice (CCJ) in seeking to divert more cases successfully out of the system.

Promisingly, this national study of data from 2000 to 2016 reveals a significant reduction in racial disparities across most facets of the criminal-justice system. The numbers show that during that period crime declined and, consistent with public demand, so did arrests. In addition to shrinking the system's impact overall, the CCJ report reflects that front-end policies designed to reduce arrests and divert cases from criminal prosecution early in the process also reduced differences in treatment across race.

Seeking to further these front-end decreases, a new set of materials from the Institute for Innovation in Prosecution and Criminal Law Practitioner about prosecutor-led diversion details data-collection processes in different district attorneys' offices and how data can inform diversion programs for low-level crimes.

Relying on traditional data alone, however, may be inadequate to measure reforms, and should instead be expanded beyond the narrow metric of recidivism, which the monograph's authors write "cannot properly account for the progress an individual makes towards strengthening familial and communal ties, furthering their education, or improving their employment prospects." Expanding the metrics of success will better enable the development of responses that improve both individual and community safety.

Scholars, activists and others have argued that many of the criminal-justice reforms of recent years — decriminalizing quality-of-life and other low-level offenses, diverting misdemeanors from the justice system, and expanding use of alternatives to incarceration for some felonies — will not result in meaningful system change unless there also is a significant reduction in sentences for the kinds of violent crimes for which lengthy incarceration serves no public-safety purpose. Prosecutors have yet to implement diversion for such crimes at scale.

A vital area for data analysis related to the potential for diversion programs for violent crime is the role that a charged person's criminal history should play in indictment, sentencing and release decisions. A person who has prior convictions often faces ever-increasing penalties for new crimes, subject to the exercise of prosecutorial discretion. A first-time arrest for a felony may result, for example, in the offer of a pre-indictment misdemeanor plea by the prosecutor, while a second or third felony arrest is more likely to result in an indictment. At the pleading stage, someone with no prior convictions facing a felony indictment is more likely to avoid incarceration compared to a person with prior convictions.

This undermines the notion that once someone has done his or her time, they have repaid whatever debt to society the crime purportedly incurred. Given the uneven application of the system across demographic categories, such practices may contribute to racially disparate sentence recommendations from prosecutors as well as disparate denials of release by parole boards.

Criminal-justice reformers face some hard questions. Chief among these are how to appropriately respond to crimes of violence and whether racial disparities might be reduced by removing the criminal history of a person charged with a crime as a substantial factor during sentencing. It is incumbent upon prosecutors to look carefully at their data and consider diversion options at each stage of their decision-making.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.

Director of the Institute for Innovation in Prosecution
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