The most fundamental and traditional responsibility of the prosecutor in the United States has had two facets, both highly infused with moral judgements. First, the prosecutor was to see that “justice was done” to those who engaged in conduct that was both reprehensible and illegal. Both Emile Durkheim (1964) 1 and James Fitzjames Stephen (1883) 2 have argued that the effect of a just result on common morality and social control was the important part of criminal punishment. Second, the prosecutor was to impose an independent judgement between arrest and prosecution. The purpose was to ration both the scarce time of the courts and the scarce space of prisons and also to assure that not only punishment, as to which the judge and jury imposed a check, but even the burdens of trial were imposed on defendants fairly and only when justified.
Beyond that, of course, the prosecutor was to present the government's case at trial and to bargain over guilty pleas that could reflect the likely outcome of a trial without requiring the costs to prosecution and defense of an actual trial. In terms of role, the prosecutor was traditionally expected to think of himself as something much more than an avenger and an order maintainer. He was to have an equal concern about the justice of the system that imposed punishment, most clearly illustrated by the rule that
1 See especially Durkheim (1964:108-109).
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Page 1 1 Introduction The most fundamental and traditional responsibility of the prosecutor in the United States has had two facets, both highly infused with moral judgements. First, the prosecutor was to see that “justice was done” to those who engaged in conduct that was both reprehensible and illegal. Both Emile Durkheim (1964) 1 and James Fitzjames Stephen (1883) 2 have argued that the effect of a just result on common morality and social control was the important part of criminal punishment. Second, the prosecutor was to impose an independent judgement between arrest and prosecution. The purpose was to ration both the scarce time of the courts and the scarce space of prisons and also to assure that not only punishment, as to which the judge and jury imposed a check, but even the burdens of trial were imposed on defendants fairly and only when justified. Beyond that, of course, the prosecutor was to present the government's case at trial and to bargain over guilty pleas that could reflect the likely outcome of a trial without requiring the costs to prosecution and defense of an actual trial. In terms of role, the prosecutor was traditionally expected to think of himself as something much more than an avenger and an order maintainer. He was to have an equal concern about the justice of the system that imposed punishment, most clearly illustrated by the rule that 1 See especially Durkheim (1964:108-109).
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Page 2 requires the prosecutor to turn over any evidence in his hands that might benefit the defendant at trial. There have been significant changes in prosecutors' offices, but few that called these traditional visions into question. There are new uses of technology. It has also become extremely common for prosecutors to develop specialized units intended to address some form of wrongful behavior that has become too common and therefore requires special attention to be stopped, such as drunken driving or welfare fraud. And there has been an increasing use by prosecutors of a variety of civil remedies such as asset forfeiture or eviction orders for drug dealers. Not these innovations, but other demands have challenged the traditional picture. First, since the 1960s, the power of the prosecutor in the United States appears to have increased with few checks on his increased influence over criminal trials. We trust to his or her restraint and fairness in exercising new capacities. Our prosecutors can undertake a variety of investigative steps that are prohibited in most of Europe, Latin America, and East Asia, including wire taps, undercover operations, compelling testimony, and much more. Our prosecutors have, during the same period, been given a set of statutes that substantially aid prosecution, most notably the RICO and money laundering statutes. Finally, and most important, the elimination of much of the discretion that judges have enjoyed to temper justice with mercy has left prosecutors in a position to threaten very severe consequences with new certainty to those who decline to plead guilty and are convicted after insisting on a trial. Indeed prosecutors can now go far toward controlling the punishment that follows conviction. The prosecutor has been made the central player in a process of fighting crime that has become firmer and tougher over the last three decades. These developments have caused questions to be raised from two contradictory directions. On the one hand, people familiar with the remarkable developments in policing over the last two decades and with the openness of the police to serious study and evaluation argue that prosecutors must also assume more responsibility for results and accept more accountability in the form of evaluation and transparency. In particular, those pressing on prosecutors from this side ask why prosecutors should not be involved in more problem-solving and less handling of individual events, as has become accepted strategy for police throughout the country (Roth and Ryan, 2000). They also ask why prosecutors should not be taking their direction from communities or neighborhoods, as the police have been trying to do in many places.
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Page 3 From the other side, a growing awareness of the immense powers that have been given to prosecutors suddenly accelerated with the widespread criticism of the Independent Counsels investigating President Clinton, HUD Secretary Cisneros, and Agriculture Secretary Espy. The Independent Counsels responded that they were doing only what prosecutors do and are allowed to do in the United States. That they were right about this shifted the question to the general practices of prosecutors. What, if any, checks are there on the capacity of a prosecutor to disrupt and even to destroy the life of an individual? Surely, public opposition is not much of a check at a time when elected prosecutors see their popularity tied to the strength of their image as crime fighters. The paucity of research on the prosecutor's function makes it very difficult to answer these kinds of questions. 3 Despite their pivotal position in the criminal justice system, prosecutors have been largely ignored in both the social science and the legal literature. To cite only a few examples there is little in the legal literature that describes the prosecutor's function and no data in the social science literature on how prosecutors make decisions such as whether to charge in a case, what charges are appropriate and why, or whether there is any consistency in decision making within or across jurisdictions. There is little information about cases that are bargained versus those that go to trial. There is no information about the impact of reforms such as sentencing guidelines on the prosecutor's function, and no systematic information about failed prosecutions or appellate reversals for prosecutor error, or about prosecutor misconduct. Electoral politics provide a central context for local prosecutors. Most chief prosecutors are elected rather than appointed, and so can function independently from mayors and county leaders, and to some degree from other criminal justice system officials as well. However, there is no systematic research on how politics influences the setting of priorities and policies within prosecutors' offices, the handling of high-profile cases, and relationships with other criminal justice actors such as the police and the judiciary or members of the community. There is no research on whether case outcomes or prosecution policies influence elections of prosecutors. 3 Notable exceptions to this lack of research include: Forst (1995); Forst and Brosi (1977); Ford and Regoli (1993); Tonry, 1991; and, for special units, Moore et al. (1985).
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Page 4 SCOPE OF THIS REPORT The lack of research on prosecution, especially in contrast to other sectors of the criminal justice system, led the Committee on Law and Justice to convene a one-day workshop on these issues as part of its ongoing mission to identify gaps in specific areas of criminal justice research. This workshop was designed to discuss how social science has advanced our understanding of changes in modern prosecution practice and how it might do so in the future. The committee had four specific goals: 1. To describe, and discuss the ability to measure, recent innovations in prosecution practice; 2. To examine the themes—political and professional—associated with the invention and evaluation of the movement toward community prosecution and to explore how it differs from traditional prosecution; 3. To examine whether and in what ways the discretionary power of the prosecutor has been increased over the last two decades, and the impact of that increase on the system of justice; 4. To describe and discuss the effectiveness of ethical, administrative, and legal controls on prosecutorial discretion. Workshop participants represented a range of disciplines including law, criminology, psychology, sociology, public affairs, statistics, law enforcement, and prosecution. Four senior scholars were commissioned to write papers in advance to pull together research findings reflecting the workshop's goals. Equally capable discussants for each paper were drawn from both academe and practice, to bring the best of social science research to bear on prosecution related issues, and to ground the discussion in real world concerns (the workshop agenda and the list of participants can be found in Appendix A and Appendix B ). Participants also included policy-level representatives from federal research, program development, and litigation offices within the U.S. Department of Justice and from private organizations such as the National District Attorneys Association and its research arm, the American Prosecutors Research Institute. Several Committee on Law and Justice members in attendance had also participated in extended discussions over several years about the role of the prosecutor at Harvard University's John F. Kennedy School of Government. This mix of academics and prosecutors had the salutary effect of broadening the workshop's focus well beyond its original goals. Using the papers
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Page 5 as a starting point, the workshop chair guided the discussion to illuminate the ways in which rapid changes in technology, law, and community involvement in justice issues have and have not influenced the traditional ways of doing the work of prosecution. Through these presentations and discussions, the participants: Explored the role, powers, and responsibilities of the prosecutor and discussed whether they have changed over the past 30 years ( Chapter 2 ); Examined changes in practice brought about by technology, changing priorities, new applications of law, and changes in other parts of the justice system that have had an impact on prosecution ( Chapter 3 ); Considered the absence in prosecutors' offices of management improvements and new approaches that have been introduced in other sectors of criminal justice practice, and discussed how measures of accountability could be established for prosecution ( Chapter 4 ); Discussed new taxonomies for prosecution that would better support the prosecutor's substantive legal and managerial responsibilities through a discussion of the broadest conception of the prosecutor's role ( Chapter 5 ); Discussed the need for and parameters of further research on prosecution ( Chapter 6 ). The discussion reflected concern with both federal and local prosecution functions, with the heaviest focus on the local level, since it is there that the vast majority of cases are prosecuted. There was some comparison of prosecution standards and practices in the United States versus those in other countries, mostly to underscore the more powerful array of investigative tools available to U.S. prosecutors to collect evidence and make cases. Finally, the tension created by the need to protect the discretion of the prosecutor on the one hand and the greater transparency that would ensue from social science research on the other received a good deal of attention in the discussion. This report attempts to capture the many insights and impressions offered at the workshop. Perspectives on prosecution research and practice varied widely. There were differences among participants about the value of standard social science approaches and their ability to capture appropriately and accurately the full range of prosecution activities and experience, especially given the ways in which factors outside of a prosecutor's control
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Page 6 may influence the formation of a prosecutor's priorities and the outcome of cases. Workshops are not designed to review past research, but rather to gain insights from the collective knowledge of experts—although this report draws on the criminal justice literature where it adds to the discussion. Participants focused on what has changed in prosecution recently and on what social science can tell us about those changes. The report provides details of important issues that were discussed at the workshop but, under National Research Council rules for workshop reports, does not draw definitive conclusions or make recommendations. The Committee on Law and Justice hopes that this report will stimulate interest among scholars, prosecutors, and policy officials regarding future research needs in this important policy area.