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What's Changing in Prosecution?

Report of a Workshop

Committee on Law and Justice

Philip Heymann and Carol Petrie, Editors

Division of Behavioral and Social Sciences and Education

National Research Council

NATIONAL ACADEMY PRESS
Washington, DC



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Page i What's Changing in Prosecution? Report of a Workshop Committee on Law and Justice Philip Heymann and Carol Petrie, Editors Division of Behavioral and Social Sciences and Education National Research Council NATIONAL ACADEMY PRESS Washington, DC

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Page ii NATIONAL ACADEMY PRESS 2101 Constitution Avenue, N.W. Washington, DC 20418 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. The study was supported by Grant No. 98-IJ-CX-0030 between the National Academy of Sciences and the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the U.S. Department of Justice. International Standard Book Number 0-309-07561-0 Additional copies of this report are available from National Academy Press , 2101 Constitution Avenue, N.W. , Washington, D.C. 20418 Call (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area) This report is also available online at http://www.nap.edu Printed in the United States of America Copyright 2001 by the National Academy of Sciences. All rights reserved. Suggested citation: National Research Council (2001) What's Changing in Prosecution? Report of a Workshop.Committee on Law and Justice, Phillip Heymann and Carol Petrie, Editors. Division of Behavioral and Social Sciences and Education. Washington, DC: National Academy Press.

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Page iii THE NATIONAL ACADEMIES National Academy of Sciences National Academy of Engineering Institute of Medicine National Research Council The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. William A. Wulf is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth I. Shine is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. William A. Wulf are chairman and vice chairman, respectively, of the National Research Council.

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Page iv

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Page v COMMITTEE ON LAW AND JUSTICE Charles F. Wellford (Chair), Center for Applied Policy Studies and Department of Criminology and Criminal Justice, University of Maryland Joan Petersilia (Vice Chair), School of Social Ecology, University of California, Irvine Alfred Blumstein, H. John Heinz III School of Public Policy and Management, Carnegie Mellon University Jeanette Covington, Department of Sociology, Rutgers, The State University of New Jersey Ruth Davis, The Pymatuning Group, Inc., Alexandria, Virginia Jeffrey Fagan, Schools of Law and Public Health, Columbia University Darnell Hawkins, Department of African American Studies, University of Illinois at Chicago Philip Heymann, Center for Criminal Justice, Harvard University School of Law Candace Kruttschnitt, Department of Sociology, University of Minnesota Mark Lipsey, Department of Psychology and Human Development, Vanderbilt University Colin Loftin, School of Criminal Justice, State University of New York at Albany John Monahan, School of Law, University of Virginia Daniel Nagin, H. John Heinz III School of Public Policy and Management, Carnegie Mellon University Peter Reuter, School of Public Policy and Department of Criminology and Criminal Justice, University of Maryland Wesley Skogan, Department of Political Science and Institute for Policy Research, Northwestern University Kate Stith, School of Law, Yale University Michael Tonry, Institute of Criminology, Cambridge University, and University of Minnesota Law School Cathy Spatz Widom, Department of Psychiatry, New Jersey Medical School Carol V. Petrie, Director

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Page vii Preface Recently, America has seen a dramatic decline in rates of most violent crimes. Property crime rates have been slowly declining for over twenty years. Regardless of whether crime is rising or falling, however, public concern about crime remains high. Over the last twenty years, we have learned a great deal through research about crime, law enforcement, the courts, sentencing, and corrections. Prosecution is notable in this context for the lack of rigorous social science research that has been conducted on it, in contrast to these other sectors of the criminal justice system. While some data are regularly collected on the prosecution function, only a handful of quantitative studies of prosecution or its impact on crime, justice, or community safety have been conducted since the late 1970s. The literature that does exist consists mostly of descriptive case studies of functions and the implementation processes associated with new programs. There is an almost equally sparse, legal literature on prosecution that has been summarized in review articles. The same could be said about the defense function. While this report focuses on prosecution, research on the defense bar is also lacking. To many, prosecution is a pragmatic function—one component of a larger process designed to hold accountable those who break the law. The benefit of conducting social science research on prosecution has not been well defined, and many prosecutors at this workshop viewed the potential application of research findings with considerable skepticism. Other criminal justice agencies once viewed research in this way. But to learn of the

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Page viii benefits of research for criminal justice agency operations generally, one has only to ask police, judges, and correctional officials. This workshop arose out of the efforts of the Committee on Law and Justice to assist the National Institute of Justice in identifying gaps in the overall research portfolio on crime and justice. It was designed to develop ideas about the kinds of knowledge needed to gain a better understanding of the prosecution function and to discuss the past and future role of social science in advancing our understanding of modern prosecution practice. The Committee on Law and Justice was able to bring together senior scholars who have been working on this subject as well as current or former chief prosecutors, judges, and senior officials from the U.S. Department of Justice to share their perspectives. Workshop participants mapped out basic data needs, discussed the need to know more about recent innovations such as community prosecution, and discussed areas where one would expect to see changes that have not occurred. The resulting report summarizes these discussions and makes useful suggestions for learning more about prosecution. Many people made generous contributions to the workshop's success. We thank the authors of the papers presented—Brian Forst, American University; Candace McCoy, Rutgers University; Michael E. Smith, University of Wisconsin Law School; and Christopher Stone and Nicholas Turner, Vera Institute of Justice—for sharing their insights with the group. We thank the scholars and prosecutors who provided formal commentary on the papers: Noel Brennan, U.S. Department of Justice; Michael Bromwich, U.S. Department of Justice; Todd Clear, John Jay College of Criminal Justice; Roger Conner, National Institute of Justice; Jeffrey Fagan, Columbia University; David Ford, Indiana University; Bruce Green, Fordham University School of Law; Raymond Marinaccio, Manhattan District Attorney's Office; E. Michael McCann, chief prosecutor, Milwaukee, Wisconsin; Robert S. Meuller, United States Attorney, Northern District of California; Andrew Sonner, Maryland Court of Special Appeals. We thank editor Lorraine Ferrier for her invaluable support and Karen Autrey, senior project assistant, for organizational assistance and logistics support. We also thank the workshop chair Phillip Heymann, Harvard University School of Law, and Carol Petrie, director of the Committee on Law and Justice, for their work in organizing the workshop and editing this report. This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with pro-

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Page ix cedures approved by the Report Review Committee of the National Research Council (NRC). The purpose of this independent review is to provide candid and critical comments that will assist the institution in making the published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the deliberative process. We thank the following individuals for their participation in the review of this report: Joel Garner, Joint Centers for Justice Studies, Inc., Shepherdstown, West Virginia; Peter Reuter, School of Public Affairs, University of Maryland; Debra Whitcomb, Grant Programs and Development, American Prosecutors Research Institute, Alexandria, Virginia; and Franklin Zimring, Earl Warren Legal Institute, University of California, Berkeley. Although the reviewers listed above have provided many constructive comments and suggestions, they were not asked to endorse the conclusions or recommendations nor did they see the final draft of the report before its release. The review of this report was overseen by James Q. Wilson, professor emeritus, University of California at Los Angeles, and Reagan professor of public policy, Pepperdine University. Appointed by the National Research Council, he was responsible for making certain that an independent examination of this report was carried out in accordance with institutional procedures and that all review comments were carefully considered. Responsibility for the final content of this report rests entirely with the authoring panel and the institution. Charles Wellford, Chair Committee on Law and Justice

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Page xi Contents 1     Introduction 1 2     The Role of the Prosecutor 7 3     What's Changing in Prosecution? 12 4     Accountability and Management 22 5     Alternative Conceptions 29 6     Promising Areas for Future Research 41 References 49 Appendixes A     Workshop Agenda 53 B     Workshop Participants 58

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