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3

What's Changing in Prosecution?

Despite their reputation for resisting change, prosecutors do have specialized expertise, and they get invited—or sometimes pushed by political forces—to use that expertise in new areas or in new ways to both solve problems and seek justice. Which problems they select to solve often depend on whether what they can do is consistent with what they are used to doing. Workshop participants pointed out that rather than initiating a fundamental change in what he does, the prosecutor may simply be setting new policy, using new management or investigative tools, or expanding his domain into a new area. These changes, seemingly superficial, nevertheless can have a large impact on the efficiency; effectiveness, and broader social impact of prosecution practices, especially an influence on safety and the evolution of community norms.

NEW TOOLS AND THE GROWING ROLE OF SCIENCE AND TECHNOLOGY

Workshop participants noted that scientific and technological advances appear to have had the greatest impact on how the work of prosecution is performed and managed. The development and use of office computers and new software systems, for both the tracking of cases and the generation of the many documents associated with a case, have vastly improved the prosecutor's ability to process cases quickly as the courts and the constitution require. Before the introduction of this computer technology, the



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Page 12 3 What's Changing in Prosecution? Despite their reputation for resisting change, prosecutors do have specialized expertise, and they get invited—or sometimes pushed by political forces—to use that expertise in new areas or in new ways to both solve problems and seek justice. Which problems they select to solve often depend on whether what they can do is consistent with what they are used to doing. Workshop participants pointed out that rather than initiating a fundamental change in what he does, the prosecutor may simply be setting new policy, using new management or investigative tools, or expanding his domain into a new area. These changes, seemingly superficial, nevertheless can have a large impact on the efficiency; effectiveness, and broader social impact of prosecution practices, especially an influence on safety and the evolution of community norms. NEW TOOLS AND THE GROWING ROLE OF SCIENCE AND TECHNOLOGY Workshop participants noted that scientific and technological advances appear to have had the greatest impact on how the work of prosecution is performed and managed. The development and use of office computers and new software systems, for both the tracking of cases and the generation of the many documents associated with a case, have vastly improved the prosecutor's ability to process cases quickly as the courts and the constitution require. Before the introduction of this computer technology, the

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Page 13 ability to analyze and, in many jurisdictions, even describe what was happening in criminal litigation was virtually nonexistent. There also was no means of establishing accountability for decisions, case processing delays, or case outcomes, and in fact, the new technology was at first resisted because of the specter of accountability and its potential for eroding the prosecutor's discretion (Forst, 1999). Today, prosecutors have access to sophisticated systems capable of supporting overall office as well as individual case management. Data on arrests, caseloads, and conviction rates can be developed and used for short-and long-term planning and resource allocation. Evidence can be quickly gathered from computerized records within prosecution or law enforcement agencies (i.e., fingerprint records and case files), and from outside sources such as records of drivers' licenses, telephone calls, retail sales, credit information, and banking transactions. Defendant criminal histories can be easily retrieved to support sentencing recommendations. Technology on a broader scale holds promise for supporting successful prosecution. Video cameras in banks, retail establishments, and entertainment venues record robberies and assaults. Investigators and prosecutors can improve problem-solving through the use of computerized mapping systems to analyze the ways in which crime clusters in certain neighborhoods, or around residences or hangouts of known offenders (Mammalian and LaVigne, 1999). Emerging technologies in optical scanning, multimedia, and artificial intelligence may also provide further support for solving crimes and identifying and convicting offenders (Forst, 1999). DNA profiling is the premier scientific advance that has affected what prosecutors do. The development of DNA profiling has revolutionized 20th century forensic science as well as the criminal justice system. It frequently enables prosecutors to conclusively establish the guilt of a defendant, particularly in sexual assault and homicide cases, where an offender is most likely to leave his genetic signature, in the form of skin, hair, or bodily fluids, at the crime scene (National Institute of Justice, 1999). Moreover, DNA evidence is even more likely to exonerate a wrongly accused suspect than to identify a guilty one. This helps prosecutors to avoid unjust prosecutions that may carry high human, financial, and political costs. In recent years, DNA profiling has proven valuable in exonerating wrongly convicted persons whose trials took place before DNA profiling became available. By 1996, it had been instrumental in correcting injustices in 28 convictions, obtained by using less discriminating identification methods

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Page 14 that failed to exclude the defendant as the guilty party (National Institute of Justice, 1999). More than a decade after its introduction, DNA profiling is still only selectively used. The costs of DNA testing remain high, and case-processing backlogs in the relatively few laboratories currently qualified to conduct DNA tests number in the tens of thousands. This can be expected to change, however, as research develops less costly and time consuming DNA evidence collection and profiling methods. Currently, every state in the nation is in the process of implementing a DNA index of individuals convicted of certain crimes such as rape, murder, and child abuse. Their DNA profiles are entered into a DNA database (CODIS, or Combined DNA Index System), against which DNA evidence from crime scenes can be compared. This system will increase the possibility of eventually, correctly identifying suspects in cases where there are no witnesses and the perpetrator is unknown (National Institute of Justice, 1999). Workshop participants noted that the prosecutor's chief responsibilities in the use of this valuable, new forensic tool are, again, traditional ones that involve both case and administrative management. Prosecutors need a detailed understanding of DNA technology and its appropriate uses so that DNA evidence is both credible and clearly presented at trial. Several recent cases, most notably the O.J. Simpson trial, have established the importance of implementing clear and specific evidence collection, storage, and chain-of-evidence guidelines and procedures for investigators. Prosecutors have a responsibility to ensure that DNA profiling is accessible to defendants in cases where its use will serve justice. Social science research can improve the human interface with the technical capabilities of DNA profiling by developing information on the kinds and number of cases where the use of DNA evidence benefits the prosecution or the defense. It is also important to document the nontechnical reasons for success or failure, for example, by tying procedures to collect and preserve DNA evidence to case outcomes. EXPANDING THE PROSECUTOR'S DOMAIN During the past two decades, prosecutors have increasingly signaled new priorities by developing special units or creating task forces within their offices to target specific classes of offenders or types of crime. These units can be created in response to a number of stimuli:

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Page 15 Political advocacy related to a specific type of misconduct such as child abuse or a neglected victim group, such as women in domestic violence cases; High-profile or unsolved cases such as the Jon Benet Ramsey case; Media attention to behaviors that affect the community as a whole such as environmental, certain white collar, and drunk driving offenses. Such a specialized unit can grow into a major category of activity as in drug crime prosecution, but they are generally considered somewhat less important and less prestigious than the prosecution of major felonies such as robbery, rape, and homicide. Specialized units do two things. First, they are able to marshal sufficient resources to focus scarce prosecution resources intensely on one problem or a set of related problems. Second, they create the additional and specialized capacity to investigate cases—in collaboration with police who may be assigned to their unit—to ensure that the needed evidence is properly identified, collected, and analyzed, and prepared for presentation at trial. This kind of collaboration between the police and prosecutors may contribute to a unit's overall success not only by improving the quality and handling of evidence, but also by addressing the needs of all interested parties—police, prosecutors, victims, and witnesses—participating in the process. The following brief examples provide some insight into the operations of special units created to solve specific problems. POLITICAL ADVOCACY: THE CASE OF DOMESTIC VIOLENCE In the early 1980s, victim advocacy organizations brought new attention to the problem of family violence, especially partner assault and homicide. Their political activism, together with a number of successful lawsuits against the police, and more recently, the availability of hundreds of millions of dollars in federal assistance, convinced many local and federal prosecutors' offices to develop special units to handle family violence complaints. The innovation in the case of domestic partner violence has two aspects. The most important is that prosecutors are now prosecuting cases that they once preferred not to prosecute, and are developing an expertise in the dynamics of such cases. Special units learn why the victim, usually the woman, may have stayed in the relationship. They know that a possible

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Page 16 reason for her failure to appear as a witness at trial is that she has been physically prevented from doing so by the accused. They understand why she may at first decide to press charges and then change her mind, and why she may feel safer doing so, even though the prosecutors believe it to be inimical to her interests. The second aspect is the development of new case management practices to support the policy of prosecuting these cases. For domestic violence cases, a set of mostly unevaluated procedures, collectively known as mandatory prosecution, has been widely adopted. Mandatory prosecution most often features a no-drop policy and victimless prosecution. For misdemeanor assaults, these practices virtually eliminate the victim's influence over the case, and (in the name of ensuring the victim's safety) also make modest inroads on the usually unlimited discretion of the prosecutor to decide which cases should be charged. This also generally means that prosecutors rely on other witnesses and circumstantial evidence, documented by police or special unit investigators, including hearsay evidence in the form of excited utterances. Technology—the videotaping of injuries and of initial police interviews with victims, and the ability to quickly retrieve computerized records of prior complaints and protective orders—facilitates the building of evidence, obviating the need for victim testimony. Some workshop participants saw these practices as a fundamental change because of their clear criminalization of behaviors that were once treated as civil matters. Others saw them simply as an application of rigorous prosecution practices to a class of crime that traditionally had been ignored. An important point made at the workshop was that because domestic violence prosecution practices have not been evaluated, it is not clear that they are achieving the goal of increasing the safety of women. For example, though the number of murders has declined substantially for both male and female victims of intimate violence, it is the male homicide victimization rate that has decreased most sharply (5 percent per year since 1976). In contrast, the rate of decrease in the rate for women has been at about 1 percent per year during that period. The percentage of female murder victims killed by an intimate has remained at 30 percent since 1976, and there is some evidence of a slight increase in the rate of white females killed by a boyfriend (Bureau of Justice Statistics, 1998b). Evaluations of prosecution practices that followed case outcomes longitudinally over a period of several years might help to pinpoint which practices are related to or can prevent such outcomes.

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Page 17 OFFENDERS AND COMMUNITY SAFETY: SPECIFIC UNITS Some other special units are created to target particular types of offenders whose crimes have a widespread effect on the community. Examples include youth gangs, drug traffickers, drunk drivers, serious and habitual juvenile offenders, firearms dealers that sell to youth, and adult career offenders. Again, prosecutors in these units develop expertise about these types of offenders and what kinds of prosecution, or in some juvenile cases, diversion or prevention and intervention strategies work with them. Most offender-focused special units are found only in large jurisdictions that have greater numbers of these special classes of offenders and sufficient resources for targeting them. While some offender-specific prosecution units participate in prevention and diversion programs, they have grown, for the most part, out of the “get tough” or “zero tolerance” policies that have been adopted by federal and state legislators and prosecutors since the mid-1980s. Prosecutors tend to use aggressive prosecution strategies against these offender groups. Youth gang and career offender units frequently use offender profiles that examine criminal histories and offense methods when making judgements about what strategy to pursue in a particular case (for example, see Gramckow and Tompkins, 1999, on the Serious Habitual Offender Comprehensive Action Program). Most use vertical prosecution. Other aggressive strategies include: tailoring charges to meet legislative standards for sentencing enhancements; waiving certain cases to adult court or federal jurisdiction; imposing pre-trial detention through the setting of high bail; restricting plea bargaining to the most serious offense that the evidence will support; and utilizing appropriate victim/ witness protection from intimidation strategies. Effects of these practices in terms of crime reduction, deterrence, impact on incarceration rates, and future outcomes for offenders and communities remain unexplored by social science. Prosecutors may need to be persuaded that that it is worth evaluating their policies in these areas to determine which ones work; which are the most protective of victims and under what circumstances; which create a deterrent effect; and which reduce crime and result in greater community safety and satisfaction. Evaluation research on the impact of prosecution practices that target special crime types and special offender groups presents perhaps the best chance to improve our understanding of prevention and control.

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Page 18 NEW APPLICATIONS OF LAW: CIVIL REMEDIES AND PROSECUTION The use of the civil law by prosecutors as a remedy for crime and the problems created by it is considered by some scholars to constitute a very fundamental change in the way cases are prosecuted. Justice Byron White expressed strong reservations about the abandonment of the clear dividing line between civil and criminal remedies, fearing that it would create novel problems where none had previously existed and might “infect” many different areas of the law (Mann, 1992). At the heart of this view is the notion that criminal and civil law have different purposes and procedural rules. The first is intended to punish; the second to compensate. Different standards of proof apply depending upon whether a case is tried in criminal or civil court. Historically, these paradigms have shaped legal principles and even the legal profession, for example, with respect to the specialization of attorneys, the definition of procedural rules, and the division of authority among the courts (Mann, 1992). In today's legal atmosphere, with plaintiffs seeking (and obtaining) substantial punitive judgements in civil cases, the concept of the punitive civil sanction has been repeatedly affirmed, and a new jurisprudential area, called the “middle ground” by Mann, is being recognized. Middle ground sanctions include any form of legal process that combines elements of both criminal and civil law, for example, punitive sanctions in civil procedural settings, and remedial sanctions in criminal procedural settings. 1 Important to the new paradigm is the concept of the state-invoked civil sanction—that is, a case involving civil punitive sanctions in which the government, rather than a private entity, is the moving party. Among other issues, this raises the specter of abuse of the sovereign's prerogative and police power, and the possible circumvention of needed procedural protections in criminal matters to protect citizens from unreasonableness. Unfortunately, there is little research on how the prosecutor uses this new legal mechanism and on its effects. 1 For a more detailed description of the middle ground, see Mann (1992).

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Page 19 Injunctive Relief Since the mid-1980s, there has been a growing use of civil sanctions by prosecutors. Generally, these sanctions have been used in cases where the criminal law is seen as ineffective in improving community safety. For example, in Boston, restraining orders, whose violation is a criminal offense, were used under the authority of the state's civil rights laws to deter certain hate crimes. The civil injunction could be invoked against a pattern of behavior, where criminal charges for each individual act would have been far more cumbersome and difficult to prove. The sanction for violating the restraining order was, in this case, more severe than the criminal sanction for the targeted behavior (usually repeated window breaking or other forms of vandalism thought of as minor acts). This process was perceived by the victims and prosecutors as creating more of a deterrent than the rarely invoked criminal sanctions for these acts. In these cases, use of the punitive civil sanction was easier than trying to bring criminal charges in courts crowded with cases viewed as more serious. Injunctive relief has been used to address anti-abortion protests, youth gang activities, and drug-related crime, among other matters. Because there has been no systematic evaluation of these practices, what is known about their effects lies in the realm of the anecdotal account. Asset Forfeiture More controversial than the above examples have been is the use of asset forfeiture in a wide variety of both felony and misdemeanor cases. Civil forfeiture is authorized in every state, in many local ordinances, and in numerous federal statutes. It has been used in labor picketing, anti-abortion protest, youth gang, and drug and gambling cases. Civil forfeiture is easy to use and offers procedural advantages to the seizing authorities. In recent years, it has raised substantial revenues for law enforcement agencies investigating drug cases in cooperation with federal prosecutors. The fairness of these procedures has been called into question, however. In a recent study of 146 federal drug cases in one U.S. district, researchers found a concentration on seizing real property with a high value, and that such high value seizures were pre-planned and commonly made under a controversial “facilitation” statute (Warchol and Johnson, 1996). The cases frequently resulted in a settlement or forfeiture, but also had the highest dismissal rate among all property types. There is some evidence that forfei-

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Page 20 ture of valuable assets can become the basis for selection of drug cases, even though prosecuting the case offers little or no social benefit, and, in many instances involves offenders who are not engaged in serious criminal activity (Miller, 1996). Two recent U.S. Supreme Court decisions affect the ways in which law enforcement can use civil forfeiture. In one case, the issue of double jeopardy was resolved in favor of law enforcement, with the court finding that civil forfeiture is remedial rather than punitive enforcement. The Court ruled that the government could use, in combination, the criminal law to prosecute someone and the civil forfeiture laws to confiscate that person's property, even where both actions were based on the same underlying criminal offense (United States v. Ursury, 1996). The second case addressed the fairness of the law (Bennis v. Michigan, 1996). Here, the Court “balanced the increased responsibility for property owners against the need to deter criminal conduct and decided in favor of law enforcement” (Schroeder, 1996). The Court made clear, however, that this decision should not be construed as permission to bring forfeiture actions against known innocent parties. Recently, Congress passed a bill to provide innocent owners with an exception to federal forfeiture laws, and to require agencies to notify owners of their rights in forfeiture proceedings. While it is clear that forfeiture laws have been a financial boon to many law enforcement agencies, their efficacy in reducing or deterring crime has not been measured. Civil Abatement Procedures The Manhattan District Attorney's Office has been a pioneer in the use of civil abatement procedures to close down illegal drug businesses operating out of privately leased residences within the city. Workshop participant Ray Marinaccio, a Deputy Bureau Chief in the Manhattan District Attorney's Office, described the program as based on civil statutes that give landlords the right to evict tenants for using their premises for illegal business. In New York, there is a provision in the law that specifically allows law enforcement to initiate these proceedings by insisting that the landlord evict the offending tenant. If the landlord fails to comply, he can then become a defendant in a civil petition, and can be forced to pay various fines, as well as the cost of the eviction. This program started out slowly for a number of reasons, not least, the need to explore the constitutional issues surrounding this use of the law by

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Page 21 prosecutors. The process that developed involves prosecutors obtaining search warrants executed from criminal cases to determine whether a particular location is associated with a given narcotics case. The premises are searched, and if enough evidence is collected, a notice is sent to the landlord of the building demanding that he bring an eviction proceeding against that tenant. The object of this program is to return stability to the building and its law-abiding residents. It seems to work best in buildings that have mostly stable, long-term renters, with only one or two tenants who are selling drugs from their apartments. In these cases, the building dynamics are permanently improved by the eviction, because the tenancy no longer exists and the drug dealer cannot return “home” to the building when he gets out of jail. Buildings where there are many drug dealers have more intractable problems that cannot be addressed successfully through civil punitive sanctions. There is a lack of evaluation on civil abatement programs, as well as other uses of civil law to address crime problems. More research on civil punitive sanctions and their impact on different crime types, offender types, and community/neighborhood settings might lead to increased understanding of how these sanctions can best be used to prevent and control certain crime problems.