Given the major changes that have taken place in other parts of the criminal justice system, especially in policing and corrections, there are a number of innovations that one would expect to see in prosecution that have not taken place. One of these is the failure of most prosecutors to establish research-based systems of accountability. The principal use of technology is to solve crimes and to build evidence in cases, rather than for more sophisticated management of the prosecution function. Generally, prosecutors have been unsuccessful in making changes in office management to deal with the extent to which power is concentrated at relatively low levels. A second limitation on innovation is the reluctance of many to accept their role as community leaders by engaging in activities other than bringing criminal (and occasionally civil) charges in court as a response to community crime problems. Finally, prosecutors have only recently begun to think of new ways to address the concentration of serious crime problems in specific neighborhoods through problem-solving approaches and partnerships with residents and other public agencies and private organizations.
The large caseloads that characterize many prosecutors' offices today, coupled with changing workplace technologies and other scientific advances, call for administrative leadership as well as legal proficiency. Forst
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Page 22 4 Accountability and Management Given the major changes that have taken place in other parts of the criminal justice system, especially in policing and corrections, there are a number of innovations that one would expect to see in prosecution that have not taken place. One of these is the failure of most prosecutors to establish research-based systems of accountability. The principal use of technology is to solve crimes and to build evidence in cases, rather than for more sophisticated management of the prosecution function. Generally, prosecutors have been unsuccessful in making changes in office management to deal with the extent to which power is concentrated at relatively low levels. A second limitation on innovation is the reluctance of many to accept their role as community leaders by engaging in activities other than bringing criminal (and occasionally civil) charges in court as a response to community crime problems. Finally, prosecutors have only recently begun to think of new ways to address the concentration of serious crime problems in specific neighborhoods through problem-solving approaches and partnerships with residents and other public agencies and private organizations. ACCOUNTABILITY The large caseloads that characterize many prosecutors' offices today, coupled with changing workplace technologies and other scientific advances, call for administrative leadership as well as legal proficiency. Forst
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Page 23 (1999) believes that many prosecutors have been slow to learn and apply modern principles of management and measures of accountability that seem warranted by their position of public power and responsibility. In the 1970s and 1980s, prosecutors implemented computerized case tracking and management systems in their offices, but few have used these capabilities to develop systematic information about case outcomes or management issues. Part of the reason for this, as expressed by workshop participants, is a sense on the part of prosecutors that statistics cannot pick up what is important. For example, a great deal of work may go into a major financial fraud case that results in only a small number of indictments; yet the case may be very significant in terms of the further harm that would have been caused had the fraud gone unchecked. Also, as was once the case for police, the determination of what is actually being measured is an issue for prosecutors. Case outcomes, after all, are influenced not only by what the prosecutor does, but by the quality of the police investigation and the decisions of witnesses, juries, and judges. As a result of these kinds of concerns, little systematic data on prosecution exists at the local or national level. For example, there is hardly any systematic information about prosecutor caseloads, number of crimes charged, cases bound over for trial, ratio of plea bargains to trials, or conviction rates. The National Judicial Reporting Program (NJRP), conducted by the Bureau of Justice Statistics, collects the most systematic data on conviction rates that we have today in the United States (Forst, 1999). The Bureau of Justice Statistics (BJS) has assembled conviction rates biennially from courts in about 300 counties around the country since 1986. However, these rates are not constructed from case tracking statistics, and so may distort the relationship between arrest and conviction for the six categories of crime covered, especially when the numbers of crimes are changing (Forst, 1999). BJS also conducts a National Survey of Prosecutors. Designed as a biennial series, the most recent available data were collected in 1996. The survey collects data on resources, policies, and practices of local prosecutors from a nationally representative sample of 308 chief litigating prosecutors in state court systems. It obtains basic information on staffing and operations and on current topics such as the use of innovative prosecution techniques, intermediate sanctions, juvenile cases transferred to criminal court, actions against prosecutors and other professional staff, and work-related assaults and threats (Bureau of Justice Statistics, 2000). In addition, BJS develops special reports on selected topics such as its re-
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Page 24 port, Prosecuting Criminal Enterprises: Federal Offenses and Offenders (Abt Associates, 1993). Because of resource constraints, these efforts are less systematic than NJRP reports in terms of periodic coverage, sampling design, and the bottom-line relationship between arrest and conviction. Monitoring is hampered because there are no benchmarks or common denominators across prosecutors' offices nationwide against which success and failure can be measured and compared. For example, the numbers for conviction rates will be very different depending upon whether convictions are measured against a denominator of cases involving any arrest, only arrests based on strong probable cause, or only arrests that result in a charging decision by the prosecutor (Forst, 1999). With regard to research, no information exists that addresses such critical questions as how prosecutors establish supervisory authority within their offices; how they set priorities; how they establish a culture of ethical and professional behavior; how they train new prosecutors to manage large caseloads; or how they keep track of successes and failures. This lack of monitoring and research data is striking, especially in considering the importance and indeed the power of prosecution in the criminal justice system. COMMUNITY LEADERSHIP: ACCEPTING THE ROLE As elected public figures, prosecutors potentially have a huge influence over the administration of justice in a community. It was pointed out that the prosecutor has a unique perspective in that he represents the only part of the criminal justice system that touches every other part, and therefore can really think about crime control strategy and not be confined to one part of the system. Some workshop participants expressed surprise that most prosecutors only rarely involve themselves in anticrime and community problem-solving activities other than bringing cases to trial. At the workshop, the vision of the prosecutor as a policy maker, who should possess some sense of strategy for what the office should be doing, was characterized as somewhat at odds with the more traditional primary focus on individualized justice. E. Michael McCann, the District Attorney in Milwaukee, also suggested that this is in part an issue of resources. Many prosecutors are continually strapped for enough resources just to hire assistant district attorneys to conduct cases. Moreover, given the roles of other, parallel criminal justice entities such as the police and the judiciary, taking the leadership in crafting policy can be something of a political gamble.
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Page 25 One former prosecutor, who tried to develop what he saw as sensible drug prosecution policy in his jurisdiction, was able to get everyone to go along except the police. The police fought back in the media by saying that implementing the prosecutor's proposed policy would be like putting a sign at the state border saying “come to our state to do drugs.” The adversarial context in which prosecutors operate also contributes to the tension between doing justice in individual cases and adopting a community or policy leadership role, in that the community may be looking for a different outcome than is available through an adversarial process. They may want the prosecutor to help them control neighborhood teens on the one hand, but not want their children to carry the onus of a criminal conviction on the other. Routine case processing is thus a safe harbor for prosecutors. Nevertheless, many workshop participants expressed the opinion that prosecutors are integral to models of community justice, and noted that a policy leadership role is feasible if prosecutors negotiate with other interested parties as equal and parallel entities. It is also important to take on manageable issues where cooperation will have tangible positive outcomes for all of the justice system actors and the community. These ideas are further explored in Chapter 5 of this report. MANAGEMENT OF DISCRETION Criminal justice reforms during the second half of the 20th century imposed limits on the exercise of discretionary power that affect the police, the courts, and corrections officials. Police became constrained by numerous cases involving Fourth Amendment rights, regarding whom could be stopped, under what conditions, and how arrests were to be made. Decisions under the Fifth and Sixth Amendments, such as Miranda, also imposed significant restraints. Various changes in criminal justice practice followed these reforms. Judges both at the federal level and in some states must adhere to, in some cases, stringent sentencing guidelines that were created to reduce disparity in sentencing decisions. Parole boards were abolished in many jurisdictions, essentially eliminating correctional discretion over sentence length. These changes were motivated by the notion that greater visibility and accountability were needed in the criminal justice system to ensure both effectiveness and fairness of criminal justice processes and sanctions. The discretionary powers of prosecutors, however, were virtually untouched by these earlier constitutional and policy reforms (Vorenberg, 1981; McCoy, 1998).
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Page 26 Given the broad discretion historically available to prosecutors in selecting cases for prosecution, determining charges, and influencing whether cases are bargained or go to trial, the extent to which sentencing and other reforms may have increased the prosecutor's power and the desirability of this have become matters of scholarly and policy debate (McCoy, 1998). Some scholars have observed that the discretion of the prosecutor appears to have expanded in terms of its impact on case outcomes. Stith and Cabranes (1998), for example, note that in federal cases where the defendant has provided substantial assistance to law enforcement authorities— one of only two circumstances permitting a departure from strict Federal Sentencing Guidelines—the departure authority is limited to cases where the prosecutor requests the court to depart downward (Stith and Cabranes, 1998: 76). The judge cannot initiate such a departure on his own authority, nor can the defense attorney file a motion requesting it. They conclude that the U.S. Attorney's discretionary power now appears to be greater relative to that of judges than it was in the past. This conclusion may apply in relation to police and correctional reforms as well. At issue for workshop participants was the relative absence of management controls over the exercise of these discretionary powers by individual prosecutors. Several workshop participants expressed concern that discretionary decisions that may profoundly affect the lives and futures of individuals and their families are frequently in the hands of young and relatively inexperienced attorneys who must decide whether to bring charges under broadly written and vague statutes defining the elements of an offense. As stated previously, beyond these statutes, few guidelines and virtually no controls exist over whether and what to charge, and on what terms to bargain. Vorenberg (1981) has observed that the prescribed checks on the improper exercise of the charging decision, such as the grand jury and the preliminary hearing, rarely generate a critical review of the prosecution decision. Internal controls such as formal guidelines or internal statements of office policy also may be inadequate in many jurisdictions, although many discretionary practices within an office may be “sufficiently routine and well understood” that serious deviation would be likely to attract negative attention (p. 1545). The workload, especially in the nation's largest prosecutors' offices (those serving one million residents or more), and the sheer numbers of assistant prosecutors making decisions in individual cases may interact with a paucity of internal and external controls to further complicate a chief prosecutor's ability to manage discretion. In recent years, the accelerated
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Page 27 rate of change in legislation creating new crimes or new sanctions for old ones also may be playing a role. For example, the Bureau of Justice Statistics has reported that in 1996, over 7400 assistant prosecutors worked in the 34 largest prosecutors' offices. In these jurisdictions, some 7000 cases were brought against juveniles in adult criminal court. Only about half of the offices had written guidelines about proceeding against juveniles in criminal court or a specialized unit or designated attorney that handled such cases (Bureau of Justice Statistics, 1998b). The potential for misjudgements or errors in such an environment is important, but is not the sole argument for more systematic review and management of prosecution decisions. Largely unfettered discretion can also provide a milieu for misconduct, which, even if only occasional, can raise serious doubts about the legitimacy of the criminal justice system. Dwyer and colleagues (2000) reported that prosecutorial misconduct played a role in 26 out of 62 cases in which convicted defendants were later exonerated based on analysis of DNA evidence. One workshop participant talked about a study, under way at the time and now completed by researchers at the Columbia University School of Law. The research team examined rates of reversible error in 5760 death penalty cases. They found that prosecutorial suppression of exculpatory evidence (that the defendant was either innocent or not deserving of the death penalty) or other forms of law enforcement misconduct were responsible for appellate reversal of convictions in 16-19 percent of the reversed cases though this did not necessarily lead to subsequent acquittals. In 22 of the 5760 cases, retrial resulted in an acquittal (Liebman et al., 2000). Despite these kinds of problems, legislatures and courts historically have been reluctant to tamper with the discretionary powers of prosecutors, and there is scholarly debate about whether external controls such as legislated guidelines would result in benefits or harm. Some prosecutors argue that even internal guidelines may have the potential to do harm and are not needed. The deterrent effect of criminal statutes may be undermined by guidelines if defense attorneys and others know that for certain first offenses—minor crimes such as shoplifting, or even felonies—plea bargains to lesser charges are office policy (Vorenberg, 1981). One prosecutor at the workshop pointed out that in many jurisdictions, the known proclivities of individual judges to give specific sentences for specific crimes provide a very real check on the prosecutor's discretion. Several workshop participants pointed out that there is no easy remedy for the absence of management controls over discretion, noting that a key lesson from the experience
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Page 28 with the Federal Sentencing Guidelines is the need for flexibility within any system designed to regulate professional judgement (in addition, please see Stith and Cabranes, 1998). Several participants observed that improving the management of discretion is an important topic for future research on the prosecution function.