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5

Alternative Conceptions

Whether or not one believes that the discretion of the prosecutor has increased or is out of balance with the influence of other criminal justice system officials, it was clear workshop participants believed that prosecutors have extraordinary authority to confront criminal offenders. They have the power to make offenders accountable for their actions, and to “do justice” in a way that balances the state's interest, including victim concerns, with the individual rights of the offender. Less clear is their power to resolve crime problems generally, let alone the societal problems that underlie them.

Even if strong research had been supported over the years, making the link between what prosecutors do case-by-case, and its effect (if any) on neighborhood crime and disorder would be difficult (some believe impossible). The mid-1980s ushered in a serious drug epidemic accompanied by a wave of lethal and often random violence by juveniles and young adults in poor urban areas that lasted for almost a decade. Incarceration doubled during that period, not as a result of strategic planning on the part of prosecutors or other law enforcement officials, but more in a piecemeal fashion because of popular and political pressure for offender accountability. The sum of law enforcement efforts by prosecutors and police to stem these problems, however, seemed, in Zachary Tumin's words, “to have left neighborhoods not much safer, the vulnerable and weak no less fearful, relationships broken by crime no more restored, and to have created few new bonds of citizenship” (Tumin, 1990: 2). While possessing



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Page 29 5 Alternative Conceptions Whether or not one believes that the discretion of the prosecutor has increased or is out of balance with the influence of other criminal justice system officials, it was clear workshop participants believed that prosecutors have extraordinary authority to confront criminal offenders. They have the power to make offenders accountable for their actions, and to “do justice” in a way that balances the state's interest, including victim concerns, with the individual rights of the offender. Less clear is their power to resolve crime problems generally, let alone the societal problems that underlie them. Even if strong research had been supported over the years, making the link between what prosecutors do case-by-case, and its effect (if any) on neighborhood crime and disorder would be difficult (some believe impossible). The mid-1980s ushered in a serious drug epidemic accompanied by a wave of lethal and often random violence by juveniles and young adults in poor urban areas that lasted for almost a decade. Incarceration doubled during that period, not as a result of strategic planning on the part of prosecutors or other law enforcement officials, but more in a piecemeal fashion because of popular and political pressure for offender accountability. The sum of law enforcement efforts by prosecutors and police to stem these problems, however, seemed, in Zachary Tumin's words, “to have left neighborhoods not much safer, the vulnerable and weak no less fearful, relationships broken by crime no more restored, and to have created few new bonds of citizenship” (Tumin, 1990: 2). While possessing

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Page 30 all of the necessary tools to make a difference in these areas, prosecutors appear at best to be able to make only limited headway. 1 Many scholars and criminal justice executives have begun to question both the wisdom and the justice of the blanket incarceration strategy that ensued from this dilemma, although some argue that it may account for much of the reduction in violence since 1993. In 1986, at the request of several prominent prosecutors, the John F. Kennedy School of Government established an Executive Session for State and Local Prosecutors at Harvard. 2 Over a four-year period, supported by research papers, case studies, and reports from the field on strategic issues nominated by its members, the session developed a series of models of what prosecutors feel (or should feel) responsible for, and what kinds of actions they are authorized to take. The Executive Session examined the question of whether prosecutors could reposition their agencies in an effort to make greater inroads against disorder and crime, or whether their traditional, dual mission of enforcing the state's interest on the one hand, and serving as the protector of the individual's interest in liberty and privacy on the other, is, essentially, incompatible with such a goal. MODELS OF PROSECUTION Several themes emerged from the Executive Session for State and Local Prosecutors that workshop participants felt were consonant with their own discussions. One was that prosecutors have an ongoing and important role in several areas: providing speedy and just dispositions; ensuring appropriate conduct on the part of other public officials, especially police; and controlling crime by “setting its price” during plea negotiations. These themes are accommodated within the prosecutor's traditional functions as described in Chapter 2 of this report. Themes that would broaden the traditional 1 Much of the material in this chapter is taken from a summary of the proceedings of the Harvard Executive Session for State and Local Prosecutors, written by Zachary Tumin (1990), a research fellow in the Kennedy School Program in Criminal Justice Policy and Management, and from a dissenting paper written by Michael Tonry (1991), the ideas of which were further delineated in Tonry (1991). 2 The Executive Session is a consulting technology developed at the Kennedy School to provide the leaders of public professions and “industries” such as law enforcement with structured opportunities to examine and revamp current industry strategy.

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Page 31 role of prosecutors also emerged. The most far reaching were regulating the disordered relationships of offenders and communities, brokering new arrangements among neighborhoods' public and private institutions, taking the lead in fashioning strategic community responses to crime and disorder, and adding new sanctioning capacity to that which currently exists to ease the strain on an overburdened justice system (Tumin, 1990). The Executive Session arrived at five definitions of a prosecutor's possible role that embodied these various themes. Case Processors Doing justice case-by-case is the embodiment of the prosecutor's traditional role as discussed throughout this report. Whether a case is selected for prosecution depends on the nature (heinousness) of the act, the strength of the evidence, and the character and probable future dangerousness of the defendant. The goal is to handle each case in an efficient and equitable manner to meet standards of justice, rather than to pursue larger social goals such as crime control, or creating more vital local commercial districts, or making schools safer. Case Processors: Sanction Setters In addition to achieving a speedy, equitable, and just result, most prosecutors believe that setting sanctions as “the price of crime” during plea negotiations can achieve certain social purposes of punishment such as deterrence, retribution, and rehabilitation. This adds a strategic element to case processing by emphasizing particular outcomes for offenders, victims, and the community. This goal of prosecution is limited, however, by police arrest policies and strategies, upon which prosecutors must depend for cases, except in certain high-profile matters where they conduct investigations on their own. Prosecutors may get around this problem in some cases by taking the lead in targeting dangerous offenders. A second constraint is the lack of information about whether prosecution policies actually result in deterrence, general or specific; whether crimes are in fact reduced or offenders rehabilitated; and whether new offenders simply step in to replace incapacitated ones. Better information is available through political processes about the vindication of community norms by means of retributive sanctions. The sanction-setting prosecutor may discover that limited data narrows his policy options (Tumin, 1990). It is not

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Page 32 surprising, therefore that the retributive purposes of punishment seem predominant in the sanction setter's policy arsenal. Problem Solvers The Executive Session defined the problem solver as “concerned to control crime at its source and in its environment, and to marshal the full range of available tools in the enforcement and regulatory communities to do so” (Tumin, 1990: 5). Using a wide range of tools, the problem solver identifies the structural patterns of offenses and the individual characteristics of offenders, and devises ways to induce changes in them to reduce the risk and cost of future offending. It is a problem-solving strategy as much as a case processing one seeking a just result that often drives the actions of special units such as domestic violence or child abuse units in prosecutors' offices, for example. For these problems, the prosecutor is acceding to the public demand for a practical law enforcement response. The question for prosecutors, then, becomes how wide should the objective be and what are the most appropriate tools for solving the problem at hand? To what extent should the prosecutor be responsible for dealing with the underlying causes of crime problems—broken families, intransigent drug abuse, failing schools—and what would be the outcome of taking on such a role? The Executive Session found that prosecutors in some cases have taken responsibility for coordinating publicly available help that falls outside of their usual realm in many cases, such as health and social service resources. Problem-solving prosecutors may develop a better sense of institutional resources and the potential their own actions may have on institutional functions and governance. They frequently use the coercive power of plea negotiations to try to rearrange disordered family relationships, for example. However, the Executive Session also expressed concern that the prosecutor may lack the moral calculus and/or the political authority to discover and enforce the solution to these kinds of problems that “returns the most value to the public'' (Tumin, 1990: 6). The problem-solving prosecutor has no special or consistent basis for deciding where to concentrate resources or for resolving conflicts among his many options for solving a given problem. Moreover, because of what some Session participants saw as a politically and ethically neutral approach to politically and ethically charged dilemmas, the problem-solving approach seemed morally thin to them. However, it may contain the seeds of a morally rich prosecution

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Page 33 strategy, given its requirement that the prosecutor learn about and act upon issues and relationships traditionally considered of little importance to his work. This strategy thus may work best when it operates within the context of a clear normative base. Community prosecution, discussed later in this chapter, provides a current example of how prosecutors are approaching problem solving. Protector and Builder of Other Institutions Because of the toll of drug-related crime on individuals, families, neighborhoods, and community institutions, Executive Session participants discussed whether prosecutors should consider the long-term interests of neighborhoods in selecting cases for prosecution. Recent research indicates that crime reduction may depend on maintaining the quality and character of neighborhood life, which in turn depends on the vitality of neighborhood institutions, such as schools and churches, and the many relationships sustained by them. Norms of conduct are established, as well as enforced, through the informal sanctions attached to these institutions. When these institutions are destabilized by crime, it becomes both difficult and more costly for people to raise children in an atmosphere of safety, educate them, and help them make transitions into healthy adulthood. Other adult activities—engaging in commerce and going to and from work and church—also become dangerous and costly in the face of serious crime and disorder. The most significant effects of crime, then, might be invisible: weakened social ties, increasing personal perceptions of powerlessness, a reduction in individual participation in community life, and in part a cause of the collapse of supporting institutions (Tumin, 1990). The locus of an institution-building prosecutor is the shoring up of these institutions, by working within neighborhoods to develop solutions, and by using his office to defend these vital neighborhood assets from criminal disruption and disorder. The prosecutor's role here is to take a strategic view of neighborhood conditions and to shape and gather moral force and license around the important public problems that he, as an elected public leader, must confront and help resolve. The Prosecutor as Strategic Investor The activities of the prosecutor as a strategic investor constitute a major source of the innovations described in Chapter 3. The strategic investor

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Page 34 uses his discretionary power to: 1) add sanctioning capacity that may be missing; 2) use sanctioning capacity in new ways, by selectively targeting serious crime problems, or by filling in for a lapsed or nonexistent service that was once the province of some other failed or overburdened agency. The strategic investor looks for ways to expand the organizational boundaries of a prosecutor in whatever capacity is needed for fulfilling the role the prosecutor defines for his office. CONSEQUENCES OF REENGINEERING PUBLIC PROSECUTION Reconceptualizing the prosecutor's function is not a risk-free exercise. Workshop participants expressed strong reservations, echoed in the Executive Session summary, about a major overhaul in the way prosecutors go about their work (Tonry, 1991). As a result of participating extensively in the Executive Session, workshop participant Michael Tonry has distilled the above prototypes into four models of prosecution: The Manager—concerned with leading a complex organization and focused on achieving organizational objectives by keeping guilty plea rates, trial rates, and conviction rates to office standards. The Investigating Magistrate—motivated to see that justice is done in each individual case with management and other concerns subordinate to that goal. The Crime Control DA—seeking to maximize crime prevention by manipulating sanctions using all the tools and cleverness at his hand. The Minister of Justice—acting as a strategist and coordinator for all of the criminal justice agencies; bringing a proactive problem-solving approach to criminal justice policy; and protecting the institutions upon which the quality of social existence depends. Tonry argues (and several workshop participants agreed) that although most prosecutors' offices evince properties of all of these models, it is not possible to pursue their objectives simultaneously. First, the models are incompatible, each possessing characteristics that contradict those of other models. Second, the models reflect fundamentally different ideas of what constitutes justice—ideas that require consideration of both normative and empirical arguments. Leaving hard-to-resolve normative arguments aside, Tonry argued that existing research in criminal justice suggests that even

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Page 35 major changes in what prosecutors do is not likely to have substantial, or even measurable, effects on crime rates. He points to research findings suggesting that so-called draconian policies, and in many cases innovations, are only adopted after overall crime has begun to decline. He further expresses his concern that, as crime control efforts reach ever further into the spheres of individual privacy and autonomy, core American values regarding liberty may be compromised. Not all workshop participants agreed with this controversial view. Some workshop participants felt that what Tonry refers to as the “brave new roles” envisioned in these various models of prosecution lay outside of the capacities of most prosecutors. First, the training of prosecutors instills or reinforces core beliefs in the notion that individual justice will result in the protection of society generally. Second, many participants felt that in the real world the different constituencies and interests affecting criminal justice, social service, health, and other pertinent organizations would make an overarching leadership role for prosecutors unlikely, even if they wished to assume it. Third, several workshop participants pointed out that many citizens would not want the public prosecutor insinuating himself or herself into other spheres of their lives. The tension here was between those who see the prosecutor's role as properly one of final resort—that is, as stepping in when other less formal means of control have failed—or as better serving the public in a preventive and strategic capacity, but possibly at the cost of eroding existing checks on the coercive power of the state. In the end, it may be more important that the public have a clear idea of the separate traditional roles of the prosecutor, the police, and the court in matters as frightening as the deployment of government force. This does not mean that prosecutors should not work to improve their efficiency, the quality of justice they deliver, or their problem-solving strategies in collaboration with public agencies and community leaders to solve problems. A recent innovation, community prosecution, appears to embody many of the ideas set forth by the Harvard Executive Session for State and Local Prosecutors, without crossing the well-established boundaries of governance that guide the prosecution function. COMMUNITY PROSECUTION Over the last few years, a small number of highly visible prosecutors have been implementing, at least on a pilot basis, a set of practices collectively called community prosecution. These efforts are being studied and

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Page 36 promoted by a small group of scholars and various parts of the U.S. Department of Justice (Stone and Turner, 1999). The term community prosecution is an adaptation taken from community policing, an innovation involving a series of reforms that swept through police departments during the 1980s and 1990s. This new policing philosophy grew out of a perceived crisis in law enforcement involving rising levels of crime and a general distrust of police by residents, especially minorities, in urban communities. Community prosecution, like the community policing movement, is grounded not only in the problem-solving approaches we have described, but also in the theory that involving ordinary citizens as co-producers of safety and public order will reap important benefits both for the community and for criminal justice agencies. It is at an embryonic level of development in comparison to that of community policing, however. Community policing concepts have been emerging in research and practice since the mid-1980s. Their recent, more widespread implementation has been driven by an historic and munificent level of federal funding (about $1.3 billion annually over 5 years) under the Violent Crime Reduction Act of 1994, which occurred simultaneously with the reduction in crime rates of the mid-1990s. In 1999, $100 million in federal funding from the Department of Justice became available for state and local community prosecution programs. Whatever its real success in reducing crime, workshop presenters Stone and Turner emphasized the clearly positive political effects of community policing, a success story that at least some urban prosecutors appear eager to emulate. Indeed, the political nature of community prosecution has been duly noted by the scholars who study it. Boland has described it as . . . “above all else, a local political response to the grass-roots public safety demands of neighborhoods—as expressed in highly concrete terms by citizens who live in them” (Boland, 1998). Stone and Turner go further asserting that “community prosecution is not merely influenced by politics; it is politics,” and that “. . . the prosecutors who advance it are engaged in the delicate, simultaneous pursuit of electoral politics, public service, and the advance of the legal profession” (Stone and Turner, 1999). In other words, politics is at the heart of community prosecution, but urban prosecutors also believe that the reforms being introduced will improve and advance justice for citizens (Stone and Turner, 1999). At this nascent stage, community prosecution has been tailored to individual jurisdictional and even specific neighborhood needs. Some workshop participants therefore characterized it not as an innovation in the way

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Page 37 prosecutors function, but as specialization by geography, and as a series of tactics and strategies that are added on to what prosecutors traditionally do. Other scholars disagree with this assessment, however, finding that some common elements exist across current programs, and these support a number of mechanisms for taking guidance from neighborhoods and changing the way that prosecutors perform their work. The most universal ingredient is the addition to the prosecutor's mission of crime prevention, which involves seeking community input through a higher level of engagement of staff-level prosecutors with local residents and merchants. Engaging the community in this fashion carries an implication that community prosecutors intend to give up some discretionary power to residents in return for their trust and cooperation. In some community prosecution jurisdictions, this has included negotiating with the community about how cases are selected for prosecution, the kinds of cases selected, and the ways in which cases are charged and prosecuted. For example, in cities such as Portland (Oregon), Manhattan, Indianapolis, and Boston, where community prosecution programs have been studied, the problems of most concern to residents and merchants involve quality of life and issues of disorder. Prosecutors, who usually must focus precious resources on serious felony cases, have, in the past, treated these behaviors as minor problems. In high-crime neighborhoods, however, citizens see disorder offenses as serious. They are perceived as the starting point for a whole constellation of behaviors related to the violence associated with gangs and the drug trade, or as the context in which offenses escalate from nonserious to extremely serious (Boland, 1998). This perceived link between disorder and serious crime has been confirmed by social science research. Skogan (1990) and Wilson and Kelling (1989) provide arguments in favor of the linkage, but legal scholars have challenged it (Harcourt, 1998). District attorneys in community prosecution sites have had to decide, in cooperation with community residents, what their role should be in responding to disorder offenses, assuming they accept the linkage. Scholars have concluded that what is emerging from community prosecution efforts is a redefinition of the elected prosecutor's institutional role in crime prevention, crime control, and the maintenance of public order—a responsibility that seems to many practitioners far removed from their traditional focus on doing justice in individual cases. Considering the almost total absence of research information on the topic, what is it about these fledgling community prosecution programs that leads us to believe they constitute a genuine or, for that matter, a posi-

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Page 38 tive reform? In many ways, these programs are trying to build on the accomplishments (or perceived accomplishments) of community policing, which appears to be serving as a sort of community justice prototype. Heymann has noted a new belief that policing can make a big difference in the amount of violent crime, property crime, and disorder in a community. In several major cities where the new forms of policing have been prominent, police have used various and novel problem-solving strategies that target gangs and other groups engaged in violence to create deterrence and establish social control (Heymann, 2001). Through community prosecution, prosecutors hope to play a similar role in establishing new social control mechanisms in their communities. The police, in their attempt to reduce community crime problems, have used their traditional powers in new ways, in cooperation with citizens in most cases (Heymann, 2001). For example, instead of pursuing random patrol strategies, they have focused their patrol resources on the places and times that have the most crime (Sherman and Weisburd, 1995). They have targeted specific serious behaviors of known offenders such as gun violence, while ignoring less serious drug possession offenses, and have clearly and specifically communicated their intentions to those offenders to enforce the laws with regard to the targeted behavior (Kennedy, 1999). They have made youth access to guns more difficult by enforcing laws against carrying weapons on the street and by cracking down on various types of illegal gun sales. They have struck agreements with some parents (in public housing) not to arrest their children for illegal possession of firearms in return for being invited in to search for and confiscate guns. They have identified previously unknown drug marketplaces through a combination of citizen cooperation and computerized mapping. Similarly, some prosecutors and scholars believe that forging a closer working relationship with the community will help prosecutors to deliver better justice because their actions will reflect residents' concerns and values and will be perceived as more fair. The kinds of measurable activities and outcomes possible in policing, however, are much harder to define in community prosecution. For one thing, prosecutors still have multiple visions of community prosecution. For some, the goal is to build a relationship of trust in a neighborhood in order to solve their own prosecution problems, such as witness noncooperation or witness intimidation. For example, jury nullification—that is, juries refusing to convict patently guilty persons because they dislike or distrust the police or prosecution, their witnesses, or the judicial system as a whole—is seen as a growing problem by

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Page 39 some prosecutors. Other prosecutors see community prosecution as an opportunity to bring private sector management skills to bear in their offices, with greater emphasis on service delivery or customer satisfaction. Moreover, there is little consensus on how community involvement should be initiated or how formally residents should be involved (Stone and Turner, 1999). In Portland, Oregon, citizens' associations from the various neighborhoods were a driving force. They developed merchant/ resident coalitions and organized public safety plans that almost uniformly called for intensified law enforcement (more officers) in their areas, and in some cases an assistant district attorney dedicated to prosecuting the crimes that affected their businesses and neighborhoods. They clearly wanted harsher punishments for these crimes. In Manhattan, and the District of Columbia, however, community involvement was initiated through outreach activities of the District Attorney's Office, to established community groups and neighborhoods (Boland, 1998). Whether community prosecution is a movement involving a new set of goals for prosecution, or simply an array of new and more effective strategies and tactics to effectuate traditional goals remains an open question. Several workshop participants voiced a suspicion that it is only the latter and is why local level resources to implement community prosecution are so scarce. In addition, a real tension exists between the need for integrity and professionalism on the one hand—that cases get screened, selected, and tried according to some type of established criteria or office guidelines—and newer notions of service to the community on the other. The need to seek public office and to respond to the goals of citizens to improve justice in their communities adds to this tension, and, in the view of some workshop participants, makes defining and implementing community prosecution a difficult management challenge indeed. Portland, Oregon, manages this tension by assigning neighborhood district attorneys the responsibility of solving problems by shaping responses and legal tactics to meet the needs of different neighborhood situations, but assigning them no litigation responsibilities. If litigation is needed, it is handled by a different DA in the downtown office, where the traditional rules—rules of evidence, statutory definitions of crimes and punishments, and policies about the level of seriousness of a case—that govern formal, adversarial case processing can be applied. Manhattan created a Community Affairs Unit, made up of nonattorneys, within the DA's office to establish a conduit for communication between the DA's office and citizens, a channel if you will, to turn the

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Page 40 results of neighborhood problem solving into effective prosecutions. The Community Affairs Unit is careful to avoid becoming a political tool for particular communities that may have an interest in influencing the outcome of a particular case. Instead, they reach out to inform the community about the DA's resources to address their concerns. They educate the public about how the legal system works, especially with regard to youth, and they work directly with citizens on neighborhood crime and disorder problems. They have, in the words of Boland (1998), become “a consistent point of entry for complaints that do not fit the traditional, incident-based, 911-driven response to street crime” (p.54). What remains undone as this movement toward community problem-solving grows, and perhaps becomes a target of more generous federal funding, is a sound strategy for evaluating community prosecution programs.