Promising Areas for Future Research
Although some workshop participants expressed reservations about the ability of social science to measure what matters in prosecution, most felt that prosecution, as an important societal function, is worthy of the same kind of serious research attention that has been extended to other segments of the criminal justice system. Many suggestions for future research are sprinkled throughout this report. Participants stressed the need to ask the right questions. The underlying questions addressed by workshop participants were whether and how prosecution has changed, whether it should change, and how we might measure the impacts of changes in prosecution, or of changes in criminal justice policy on both crime and the sense of fairness in punishment on which society relies. Most participants agreed that what prosecutors do is but one element of the sum of patterns and events that affect the volume of crime; thus making the linkage to crime rates difficult. This is not to say that what prosecutors do has no influence on these patterns, or that prosecutors' policies and actions do not have specific effects. It is to say that there has been a far less vigorous effort to measure the effects of the prosecution function than has been true of other spheres of criminal justice, such as policing and corrections, or in other important areas of public policy. A research agenda could address these matters without ignoring the equally important expressive values of retribution and fairness.
In his paper, Forst noted that the prosecutor is insulated by the virtual absence of a system of measured public accountability. Public perceptions of effectiveness are shaped almost entirely by a few high-profile cases in the news and by occasional public pronouncements by prosecutors asserting toughness. Conviction rates are not reported to a national agency or even locally by most prosecutors' offices, as arrest rates are by the police, for example. Such data while susceptible to misinterpretation, nevertheless would make the performance of prosecutors more transparent to those who rely on their work, especially the police, courts, and victim assistance organizations, and to the public.
Forst suggested, as a potentially useful solution, the annual reporting and publication of uniform office performance statistics. Professional associations such as the National District Attorney's Association and the American Prosecutor's Research Institute might be enlisted to help design such a system. Forst asserted that such an idea is no more far-fetched than that of the Uniform Crime Reporting System, which, over a period of several decades, has been able to get the cooperation of virtually all 20,000 independent police departments in the United States. Data also could be collected on the problems reported by prosecutors that may impede successful prosecution of cases, such as heavy caseloads, and more recently reported phenomena such as the true extent of witness intimidation, failure to appear at trial, or jury nullification. In addition, he suggests that a formal periodic survey could be designed and conducted of those who depend on prosecutors: victims, witnesses, judges, police, the defense bar, and the general public. Private sector organizations have long used such surveys to obtain systematic feedback about the effectiveness of service delivery. A possible downside of such a system may be that any set of comparisons may drive prosecutors to concentrate on whatever is measured rather than on what they see as a community priority.
Much discussion focused on prosecutors' resistance to changes in their traditional role and their resistance to innovation. However, it was worry about resistance to evaluation that most frequently surfaced in the conversation. Much innovation has in fact occurred, but little is known about its impact on justice. Several participants who have been successful in getting
prosecutors to cooperate with evaluation impressed on the group the importance of simply asking for access and of working closely with prosecutors to improve prosecution outcomes and impacts as well as to improve research knowledge. Participants identified a number of areas where evaluation would be useful.
The need to know how new policy is created by prosecutors and about its effects surfaced frequently in the discussion. For example, how do prosecutors develop and enforce priorities within their offices? What leads to “dangerous offender” initiatives or the creation of new, specialized units, and why are some problems given priority over others that may seem of equal weight or of equal political value to an objective observer? If there is a change in the way certain kinds of cases are treated, how deep is the change, how long lasting, what are its effects, and what are the mechanisms for reviewing policies that do not have the intended effects? Does theory or empirical evidence have any influence in policy decisions? As pointed out earlier, recent changes in the way prosecutors treat domestic violence cases do not appear to have substantially affected the death rates of abused women, despite the drop in other types of homicide and in the fatal victimization of men. How and on what basis do prosecutors develop new options in this type of situation and what impediments exist to their successful implementation?
Participants discussed the fragile nature of most innovations, particularly in the politically charged atmosphere of prosecution, noting that evaluation is resisted because it will be seen as critical and will not give the innovative practice a chance at success. But, as highly promoted innovations such as community prosecution take hold, more than descriptive information is needed to determine the true nature of the change and to compare outcomes to those of more traditional approaches. For example, what are the outcomes of community prosecution and how are those outcomes related to the original goals of the innovation? Does the community really have an influence on case selection in community prosecution? Do resources really get re-directed to reflect community concerns that more— as with disorder offenses—or less—as with certain juvenile offenses—em-
phasis is placed on minor cases? What are the outcomes for individual offenders or neighborhood welfare? Is discretion applied differently in periods of high crime versus periods of low crime? Should it be?
Similar research is needed on the impact of other innovations such as special units, applications of technology, and procedural innovations such as prosecution-initiated waiver of juveniles to adult court. Such research information could be developed through community surveys, through observational studies, and through the collection of data on case outcomes of both new and traditional approaches. As with community policing, the information could be fed back to prosecutors so that improvements in innovative strategies can be made. There were other questions that several participants deemed important: Do innovations reap important “political” benefits for the prosecutor? For example, with community prosecution are there case outcome benefits in terms of better witness cooperation, fewer trials due to higher successful plea bargain rates, and fewer instances of jury nullification in the cases that come to trial? Do other innovations have these outcomes? How important are resources, including federal funds, to the acceptance and diffusion of such innovative practices?
Understanding the Politics of Prosecution
There is little understanding of the political processes that drive the election and re-election of district attorneys. Interesting research questions include: How do prosecutors perceive their constituents and how does this in turn influence their values, priorities, and selection of cases? How do prosecutors perceive the winning or losing of big cases as affecting their political fortunes? How has the victims movement influenced the politics of prosecution?
A judge who participated in the workshop reported a public quarrel with police over a proposed new prosecution policy for drug offenders in his jurisdiction. What role might this have played in his decision to not seek reelection? There is a similar lack of systematic information on whether party affiliation matters, how personal political and social contacts influence re-election, how activist groups influence elections through advocacy for an emerging cause, or how media coverage of crime affects election outcomes.
Because politics is so intrinsic to much of the prosecution function, several workshop participants noted the importance of having research information on these processes and on how they influence the policy and
management decisions of the district attorney. Such information could be obtained in a number of ways. The influence of big cases on reelection could be determined by systematic examination of such cases—capital cases, for example—within one or more jurisdictions. Information on the influence of big cases and of new policies or programs also could be collected by means of community and voter surveys, and by analyzing media stories and campaign polls. Finally, the influence of political processes on policy and management decisions could be discovered through systematic observational studies and structured interviews with district attorneys.
Some workshop participants decried the lack of information on how individual prosecutors make decisions and how organizational structures within offices may support or impede a prosecutor's work. For example, to what extent might enforcing office priorities or experimenting with different organizational structures deny needed discretion to line prosecutors? What resources exist to help prosecutors manage their offices, especially in large jurisdictions? What is the effect of current organizational arrangements, for example vertical processes that are built around crime specialty or seriousness, or horizontal processes that are built around case stages— charging, evidence gathering, plea bargaining, or trial—on case outcomes? How do these organizational arrangements relate to financial or personnel resource management, the successful implementation of office priorities, victim/witness or citizen satisfaction with case handling and outcomes, or the introduction and longevity of important innovations? How do they affect a chief prosecutor's ability to manage the exercise of discretion within his office? Without this kind of information, there may be little capacity for public accountability or freedom to think beyond the individual case. Observational studies might be able to answer these questions.
The management of systems of coordination between the prosecutor and other agencies, particularly the police, was also of concern at the workshop. Are there systematic processes for collaboration in investigations? Who is responsible for ensuring the appearance of witnesses at trial? How are processes and procedures that require the approval of the court developed and managed? What review mechanisms are in place for the retrospective review of the cases of innocent defendants who were convicted and then released on the basis of further evidence, of lost cases, or of cases that
resulted in a more severe sentence than the offense seemed to warrant? These issues might be addressed through survey research.
Most of the ethical issues discussed at the workshop focused on abuse of discretion. Recent research on capital cases has found that misconduct by prosecutors was a factor in 16 percent of erroneous convictions (Liebman et al., 2000). Several workshop participants felt there needed to be better information on the extent and nature of such abuses and on the conditions that foster them.
At issue in the discussion was whether there is adequate recognition of a shifting role between neutral fact finding, as the state's representative, and active advocacy as a prosecutor at different stages of a case. What, if any, kind of information would help prosecutors determine the appropriate balance between the quality of the evidence in a case and other factors, such as heinousness of the offense, or demonstrable bad character of the suspect, in deciding to bring charges or agree to a plea? Do the stakes in high-profile cases more frequently lead to greater care on the part of a prosecutor or do they foster an atmosphere where misconduct may occur? What part do training or individual characteristics of prosecutors play in ethically questionable behavior? Are the rules of conduct and the expectations for the behavior of prosecutors clear in most offices?
These questions could be addressed through periodic, objective, and thorough reviews of case files and court decisions on randomly selected cases, which might then be compared to targeted cases. The targeted cases would be selected from convictions that subsequently have been proven erroneous, from cases where ethical complaints were filed, and from cases where jurors have recanted their vote to convict, in order to develop information on who commits ethical errors or engages in misconduct, and under what circumstances. Social scientists and legal scholars working together on these reviews also may be able to uncover patterns or circumstances where such errors or misconduct are most likely to occur. For example, such information might shed light on the circumstances under which the prosecutor should look for exculpatory material or question the testimony of an investigator at a Motion to Suppress. Surveys of prosecutors about their knowledge and interpretation of the rules of conduct, the policies of their offices, and the pressures they feel to win cases might also be conducted to determine whether training is appropriate and adequate.
Finally, the need for better information on the abuse of discretion led workshop participants back to the broader issue of whether the balance of discretionary power has shifted to favor the prosecutor, and whether the quality of justice has suffered as a result. One participant noted that we cannot determine whether there is a serious problem caused by recent changes in policy related to prosecutors that has made them less accountable because we have neither the perceptual apparatus nor the data to do that. We need instead to begin asking the right questions—what is the evidence that a shift has occurred, and if it has, what has happened, good or bad, as a result? Is there a public perception, for example, that citizens' rights are being violated? In what percentage of cases do prosecutors in fact control the sanction that is imposed? These are researchable issues.
As the workshop discussions demonstrated, prosecution is not an undifferentiated monolith but a diverse activity requiring choices by policy makers who might benefit from systematic knowledge about the implications and effects of those choices. Participants noted the importance of heightening awareness of potential benefits. Repeatedly, workshop participants remarked on the striking, disparate research treatment of policing and prosecution. Police have been a subject of research for the last 35 years, since the work of the President's Commission on the Administration of Law and Justice. The police role in the urban unrest of the 1960s and concern about increasing violent crime rates in the late 1960s and early 1970s are probably principal factors explaining this. In addition, police are the visible arm of the law, a group whose past instances of poor management, corruption, and abuses of authority have been transparent to the public through the media, and have resulted in various investigations and major legal reforms over the years. Though skeptical at the outset, police have reaped many benefits from participating in research—improved relations with the communities they serve, a reduction in crimes targeted by law enforcement, and organizational improvements to mention only a few (Bayley, 1998; Sherman, 1998; Skogan et al., 2000). These events have further increased their openness to research.
The contrast with prosecutors could not be starker. Armed with law degrees and distant from any violence or street crime, the prosecutor's organizational or conduct problems have remained out of public view. Advances in identification technologies as well as intensified community demands and media scrutiny have begun to change this picture somewhat. In addition, the political success of community policing has prompted a greater awareness among prosecutors of the potential value of research.
In sum, there are a wide variety of potential benefits to prosecutors that may provide incentives for their participation in new programs of data collection and research. Most important is the potential for increasing the legitimacy of prosecution policies and priorities in the communities most affected by the prosecutor's work. Research information would also support better coordination within the criminal justice system, better understanding of community priorities, better management policies and practices, and improved ability to support requests for new resources. Finally, openness to research has provided greater visibility and, in many cases, increased public respect, for individual police agencies (Bayley, 1998). The chances are high that these kinds of political and professional benefits would accrue to prosecutors as well.
The research questions sketched here build on conceptual work done by prosecutors in the Harvard Executive Session and by scholars in the prosecution research field, many of whom participated in this workshop. Participants noted that attracting good scholars to this field in the future will require a considerable funding investment, so that a long-term, systematic, rigorous, and objective program, characterized by well-established peer review procedures, can be mounted. Such research attention to prosecution performance, and to due process, ethical behavior, and the appropriate allocation of discretion across the criminal justice system may be critical to maintaining and strengthening system legitimacy and to protecting the values of individual and social justice so important to American democracy.