Prosecutors Must ‘Lead the Charge’ in Ending Justice System Racism: Paper

The nation’s prosecutors today have an historic opportunity to eliminate the charging practices that have caused the imprisonment of disproportionate numbers of African Americans, says a new paper issued by the Institute for Innovation in Prosecution. at John Jay College.

It’s long past time for U.S. prosecutors to recognize the role they have played in perpetuating racial inequality in the justice system, and to “lead the charge” in reforming it, according to a paper produced by the Institute for Innovation in Prosecution (IIP) at John Jay College.

“Every action that a prosecutor’s office takes is colored by this country’s historical record of oppressing racial minorities,” said the paper, the latest in a series of think pieces released by the IIP aimed at reimagining the role of the prosecutor in local communities.

Their report, released amid a nationwide groundswell of support for justice reform, was co-authored by Angela J. Davis, a law professor at the American University Washington College of Law; David Noble, a former communications associate for the National Network for Safe Communities; and John Chisholm, District Attorney of Milwaukee County in Wisconsin.

The authors said prosecutors should take advantage of the enhanced data capabilities now available and, the growing opportunities for partnerships among all stakeholders of the justice system, correct longstanding racial disparities in prosecutorial outcomes, and rebuild vital relationships with communities of color and other vulnerable populations.

“Prosecutors wield significant discretion and should therefore lead the charge in creating a system that is fair for all individuals,” the paper said.

The authors wrote that contemporary prosecutors should keep three objectives in mind:

  • Reimagine the role of prosecution in democratic society;
  • Produce public safety while reducing harm to communities and individuals from the justice system; and
  • Address the historical legacy of racial inequality and structural injustice that have stubbornly persisted in different forms in the U.S. for centuries.

The report stresses that today’s prosecutors, law enforcement, researchers, and advocacy organizations should work together to collect data from procedural points where prosecutors have broad discretion: case intake, bail, charging, plea recommendation, and sentencing.

“Before devising strategies that will effectively address disparities, prosecutors should analyze current decision-making at key discretionary points and use these data to determine if certain practices are contributing to racially disparate outcomes,” the paper said.

“This process should also encompass a thoughtful examination of internal and external office policies around these practices. The primary objectives of such an investigation are to pinpoint the institutional contributors to disparities; examine how prosecutors are utilizing discretion; and ultimately institute necessary changes in policy and practice.”

Focus on Racial Impact of Daily Decisions

In other words, prosecutors’ offices can begin the search for racial disparities with daily policy decisions that are under their control, such as whether a case is recommended for a diversion program or prosecution.

Importantly, the report invites prosecutors to examine the racial impact of decisions made based on seemingly race-neutral considerations, such as determining whether to accept a case based on prior court interactions.

The report argues that considerations such as prior convictions create a racial disparity in case intake because communities that are historically over-policed will show on average more prior offenses than other communities.

This often leads to higher case intakes for the same over-policed communities, resulting in a self-fulfilling feedback loop.

Prosecutors should also harness data collection and analysis technologies to measure future case intake and impacts, including the demographic characteristics of defendants, types of charges filed, outcomes of charges, the percentage of victims who were previously defendants, and the number of juveniles processed in the system, the paper said.

They should then make the information readily available and actively share it with their communities, according to the report.

This broad dissemination and democratization of the data could serve as the basis for meaningful partnerships between prosecutors’ offices and their constituencies.

These potential partnerships stand to increase community trust that local prosecutors are “ready, willing, and able to deliver justice in a fair manner based on community standards of safety, equity, and wellness.”

The report cites two national examples of such community-prosecutor partnerships.

In Milwaukee County, the District Attorney’s office has created a “community prosecution model consisting of a partnership with residents, other criminal justice stakeholders, and community organizations.”

“Within this model, prosecutors help address quality of life issues and discuss public safety concerns with community members,” wrote the authors.

Adopting the ‘Community Prosecution’ Model

Although John Chisolm, a co-author of the report, is District Attorney of Milwaukee County, the authors did not elaborate as to how Milwaukee County’s “community prosecution model” meets the report’s recommendations for such a community partnership, including that it broadly share data about prosecutorial outcomes and solicit feedback about its policy and practice.

The second national example of community-prosecutor partnerships cited in the paper is the use of “peace circles” as a diversion program for first-time juvenile gun offenders in King County, Washington. These youth meet with a group of community-based stakeholders including faith leaders, social workers, and counselors, to identify and “address the root causes of their negative behavior.”

The report precedes its recommendations with an important caveat.

“Given the power and scope of race as a dynamic baked into our respective responses to crime, and acknowledging that race issues permeate all of the vital institutions in the communities we serve, the suggestions below are not intended as universal panaceas, nor will any alone radically alter the trajectory of the problem,” the authors wrote.

“They are starting points, not ending points.”

See also: an earlier paper in the IIP series, “Memo to the Nation’s Newest Prosecutors: Restore Your Community’s Trust”

The full paper is available here.

Roman Gressier, a graduate of the CUNY Baccalaureate program at John Jay College of Criminal Justice and a former applied research fellow at the Vera Institute of Justice, is a TCR news intern. Readers’ comments are welcome.


Memo to the Nation’s Newest Prosecutors: Restore Your Community’s Trust

Only a major overhaul of prosecutors’ traditional practices can break down the deep-seated barriers of distrust and racism that have alienated many American from the justice system and created a “public safety disaster,’ says a paper addressed to the new crop of district attorneys elected in last month’s midterms.

Prosecutors who are willing to rethink their traditional adversarial roles can head off the “public safety disaster” in many American cities caused by long-festering distrust and racism, according to a new paper from the Institute for Innovation in Prosecution (IIP) at John Jay College.

The paper, written by Dan Satterberg, prosecuting attorney in King County, Wa., and Ronald Wright, a law professor at Wake Forest University, calls for a major transformation of the prosecutor’s role as courtroom adversary to one that involves partnership with defense attorneys, community service providers and community leaders.

Dan Satterberg

Dan Satterberg, Prosecuting Attorney, King County, Washington State

The transformation extends to collaborating with public defenders’ offices, engaging more “respectfully” with eyewitnesses, crime victims, and their families, and re-thinking some of the harsher investigative and trial tactics that have alienated many people in at-risk communities, the authors wrote.

“Public safety is something that prosecutors must co-produce with their communities,” the paper said. “It is not something they can simply deliver to the public.”

The authors, addressing themselves to the 2,500 chief prosecutors around the country—including those newly elected in the 2018 midterms—argued that crucial first steps included training their staffs to recognize “implicit and explicit bias,” hiring more people of color, and eliminating the “dehumanizing” language often used  to describe eyewitnesses as well as victims.

“An important part of engaging respectfully with the community is acknowledging our nation’s shameful history of slavery and racism which continues to cloud the criminal justice system,” the authors wrote. “As a person, as a prosecutor, you have inherited this history.”

Ronald Wright

Ronald Wright, Wake Forest University

The paper is the latest in a series of essays aimed at generating what the IIP describes as “high-level culture change” in prosecutors’ offices. The essays are an outgrowth of conversations among leading prosecutors around the U.S. who have participated in Executive Sessions of the Institute, which is funded in part by a grant from the Manhattan District Attorney’s Office.

According to Satterburg and Wright, the U.S. criminal justice system has been undermined by a “silent protest by the most vulnerable members of our society who do not believe that involving police, prosecutors or courts will improve their situation.”

As a result, eyewitnesses and crime victims, including women subjected to domestic abuse and immigrants, simply refuse to help police solve crimes of violence even when they have valuable evidence, in what amounts to a “boycott” of American justice, the paper said.

“These boycotts amount to a public safety disaster,” the authors wrote. “And they point to the greatest challenge for every District Attorney in America: to earn and keep the trust of the communities where crime has the greatest impact.”

The paper argues that prosecutors can only earn that trust by adapting fundamental changes in the way their offices work and think.

A key element in the transformation is moving from the prosecutor’s traditional adversarial role to one of greater partnership with defense attorneys and service providers in the community, involving mutual efforts to find alternatives to harsh sentences and jail time, particularly for non-violent offenders.

“As the elected prosecutor, you should support a strong local public defense system, and insist that the line prosecutors in your office engage in amicable and professional conduct with their counterparts in the defense community,” the authors wrote.

“An adversarial defense system does not require prosecutors to be personal adversaries with defense attorneys.”

Prosecutors were advised to “not take advantage of unprepared defense counsel” and avoid seeking additional charges or sentences beyond the maximum as a tactic for “bargaining leverage.”

The authors outlined five new strategies for a “prosecution that earns community trust.”

  • Avoid traditional prosecutorial tactics that withhold exculpatory evidence from defense attorneys until the last minute or exploit the plea-bargaining process—used to resolve the majority of cases in the U.S. justice system—by threatening additional charges beyond the maximum as a tactic for “leverage;”
  • Add “non-prison punishments” such as counseling or alternative courts as a matter of course to the prosecution toolkit, instead of holding them out as a form of leniency that the prosecutor dispenses only in exceptional cases;
  • Treat victims and eyewitnesses with greater respect, avoiding “dehumanizing language” and making sure that line prosecutors take the time to listen to victims, witnesses, defendants and their families.
  • Develop partnerships with community-based alternatives that can divert deserving defendants away from the courts before charges are filed in nonviolent cases, and “take the lead in finding sources of money” to develop such programs;
  • Make accountability and transparency a regular component of prosecutorial offices, through methods such as regular public reports and providing more information to the media.

The authors said conviction rates shouldn’t be the only metric for prosecutors’ effectiveness.

“A community-oriented prosecutor’s office must look beyond conviction rates at trial when measuring success,” the authors said. “Transparent prosecution enables the public to see not just single cases, but trends and patterns in the full range of programs that the office undertakes.”

Citing one practice adopted by the King County prosecutor, an annual report includes reasons why some cases involving juveniles are tried in adult court and others in juvenile court.

The public can “agree or disagree with (the prosecutor’s) decisions, but [they can] do so informed by our transparency,” the study said.

Transforming the prosecutor’s role won’t happen overnight, the authors conceded, but they said every prosecutor should be thinking of long-term goals.

“We hope that prosecutors over the next 15 to 20 years can achieve greater balance among crime prevention efforts, courtroom-based justice responses, and other community responses to safety threats,” the paper said.

“In the end we want to empower communities to enhance their own safety, while trusting the criminal justice system to continue to combat serious violence,” the authors added. “But communities will allow prosecutors to help only if we earn their trust.”

The full paper is available here.

Readers’ comments are welcome.