What’s Inside the Prosecutorial ‘Black Box’?

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Illustration by Ian Jedd via flickr

“If you are going to reduce the prison population, prosecutors are going to be the ones who have to lead the way.”

Since Fordham Law Professor John Pfaff wrote those words, in a paper published in 2011, analysts have been focusing on his argument that the nation’s historic and unprecedented prison growth since 1994 was not primarily driven, as many believed, by legislation—but rather by increased filing of felony charges by prosecutors.

He concluded that, in order to be successful, justice reform efforts would have to focus on prosecutors.

But until recently, the public had little understanding of what Pfaff also called the “the least transparent part of the criminal justice system,” particularly the enormous power wielded by prosecutors to determine who is charged, who may plead out, and who goes to prison.

Nor did many recognize the considerable influence district attorneys exerted in state public policy debates.

In an effort to pierce what Pfaff has termed the “prosecutorial black box,” the Charles Hamilton Houston Institute at Harvard Law School conducted a series of interviews with former and current prosecutors.

My colleagues and I were particularly interested in hearing about the experiences of individuals who had tried to enact reforms from the inside. To encourage optimal honesty, we assured confidentiality to everyone we spoke with.

The result was a series of revealing interviews that shed light on why many prosecutors become disillusioned with their jobs, and on the discomfort felt by African-American prosecutors, in particular, about being put in a position of, as one said, “sending other black men to prison.”

Public awareness of the prosecutors’ role is rapidly changing in districts across the country—red, blue and purple—as education campaigns waged by justice reform advocates are galvanizing voters to elect openly reform-minded district attorneys.

In Houston, Mississippi, Denver, San Francisco, Chicago, Brooklyn, and most recently, in Philadelphia, these leaders are promising to make the system fairer, more equitable, and more transparent. Many have pledged to reduce the prison population, change bail practices, divert non-violent offenders, end marijuana prosecutions, and reduce racial disparities in the system.

But there’s still a long way to go.

recent survey conducted by the American Civil Liberties Union in Massachusetts found that almost 40 percent of respondents did not even know that district attorneys were elected. As a result, most DAs routinely cruised to re-election, often without an opponent.

With a growing cohort of reformers now ensconced in office, advocates are closely monitoring their actions. In particular, they are questioning whether reform can be initiated and sustained from within the very offices that have been most responsible for “mass incarceration.”

And, if reforms are possible, where are the most promising levers?

Our survey explored these and other questions. Below is a short summary of what we found.

The Career Disconnect

When discussing with prosecutors what had initially attracted them to the job, most spoke of wanting to make a difference in the community, of wanting to be “players,” of finding solutions to social problems, “solving puzzles,” helping victims of crime, and to gain trial skills.

Yet, once in office, they all told us, they were evaluated almost exclusively on a very narrow set of metrics—their trial skills, ability to quickly go to trial and to win convictions:

“You were measured by the speed with which you are moving cases and you better get a conviction,” commented one interviewee. “You charged out everything that you could possibly charge out. A good plea meant a lot of time.”

Another mentioned that a memo would be sent around the office every time a prosecutor won a case, with “a lot of high fives based on how many years someone is sent away.”

Someone else explained that, when a defendant received a 15-year sentence or higher, the prosecutor’s photograph would be hung on a wall, next to a photograph of the defendant and of the referring FBI agent.

Race Matters

We noted a distinction, which needs to be further explored, between how white and black prosecutors initially approached their jobs. Many of the black prosecutors with whom we spoke expressed ambivalence about entering a field which required them to put so many other African Americans in prison.

One told us, “My struggle was being a black man in a position where I would be sending other black men to prison.”

Said another: “During the period I was there, there was no concern about mass incarceration, over-criminalization or reducing prison population. Those issues were never raised.”

While several white prosecutors told us they eventually became troubled by the racial disparities in prosecutions, it was not an initial concern, whereas the black prosecutors raised it immediately.

The Tipping Point

One surprising insight that emerged from several interviews was the deep emotional toll that prosecutorial work exacted over time. Several interviewees mentioned feeling empty, sad, and isolated, particularly because the office culture did not encourage them to be “soft.”

For a few, a particular case became a tipping point:

One moment—a black man had gone to trial for selling crack. It was the same story over and over…I decided to drive by, and sure enough, there was someone else selling crack at the same house where the defendant, now serving a mandatory minimum prison sentence, had been arrested….Nothing had changed.

 Winning a trial was supposed to be this moment of joy and accomplishment. You stand up and hug and laugh—but I felt crushed. This is one big swamp of tragedy. 

One case “overwhelmed me” and sent me over the edge. One mother had a son who was killed, another who killed. She lost both sons. They were from the same communities. Our approach was not working. 

We asked interviewees how they would change or reform the job. Here are some of the recommendations we heard most frequently.

Improve Recruitment and Training

Several of the individuals we interviewed discussed the need to cast a wider net when recruiting for new positions in the field, and, in particular, to seek out individuals “who are not so black and white” in their thinking about the consequences of breaking the law.

A few also noted the vast cultural, racial, ethnic and demographic differences between many prosecutors and the communities where they work.

“You cannot exact retribution on a community without any knowledge or understanding of that community,” commented one.

They recommended that all incoming prosecutors undergo training that included visiting prisons, speaking with incarcerated individuals, and understanding the full impact of incarceration and criminal control on an individual life’s and on the life of his or her family.

Broaden the Metric

Almost every interviewee noted that the metrics for measuring the performance of prosecutors were far too narrow.

Trial skills were valued extremely highly, along with an ability to move to trial quickly (“we don’t want to be the ones to slow the process down”), and, of course, to secure convictions.

But several mentioned that any positive contribution they chose to make, for instance, by working in communities, went largely unnoticed. While they weren’t actively discouraged from taking part in community events, they weren’t rewarded for doing so either.

“Nobody sent an e-mail around the office when I helped someone go to college instead of prison,” said one.

Collect More and Better Data

The lack of data collected by most District Attorney offices, according to several interviewees, hobbled reform efforts. It kept the public, and the staff, from measuring the office’s effectiveness on a variety of indicators beyond conviction rates.

This has led some to seize upon the work of organizations such as Measures for Justice, which gathers data on a host of criminal justice indicators at the county level in three broad areas—public safety, fair process and fiscal responsibility.

Using this data offers one way to hold District Attorney offices accountable on a far broader set of publically-available metrics for performance.

Ease the Emotional Toll

Many prosecutors spoke of feeling isolated, increasingly uncomfortable with a culture that focused exclusively on convictions and harsh prison sentences, yet fearful of appearing “soft.”

One interviewee suggested “term limits” to ensure that individuals did not develop “shells of hardness.”

Another observed that a broader set of metrics, which rewarded prosecutors for positive efforts within the community, might create more balance for line prosecutors, and ease their sense of isolation.

These interviews represent just a first step.

Johanna Wald

Johanna Wald

We need more data—both quantitative and qualitative—to more fully understand how changes to prosecutorial culture and incentives can accelerate the movement to create a more equitable and humane justice system.

Robert F. Kennedy once said that “every community gets the kind of law enforcement it insists on.” It’s therefore ultimately up to every community to insist upon a district attorney’s office that reflects its priorities and values.

Editor’s Note: The results of the survey were first presented at a June, 2017 conference at Harvard. Readers who wish to obtain a copy are invited to contact the author at jomawald@gmail.com.

Johanna Wald is the former director of strategic planning at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. She welcomes comments from readers.

3 thoughts on “What’s Inside the Prosecutorial ‘Black Box’?

  1. In the off chance that there be any prosecutors reading this, thanks so much for ruining my life. You took a first time offense, tagged on as many charges you could think of, and then sent me away to prison for two years. That was the least of the punishment. Owing to my status as felon, my ex has been successful in using this label to prevent me from seeing my kids for almost ten years now. I cannot find a job even though I once worked as a registered nurse, and of course I cannot find a place to live. High fives all around!!!!

  2. Dear Prosecutors:
    My teenage daughter is in an adult prison
. My daughter was a straight-A student and a competitive cheerleader. She just turned 18 in prison. Now she is a statistic – serving time in an adult prison in Florida.
    She was just 15 years old when she made the mistake of a lifetime. I say mistake because at the age of 15, that’s what it was. She absolutely should have been held accountable for her actions, but she did not deserve a ruined future.

    Just 21 days after she was arrested, a prosecutor decided that she should be tried as an adult. There was no input from a judge, no evaluations, and no interviews with her teachers or jail staff. Yes, even they loved her. I know this because I volunteer there now. This was her first arrest. No one was hurt. A prosecutor – who knows nothing about my daughter – decided she must be held accountable by adult standards and face adult consequences.
    My daughter was re-booked in the night, given a different color uniform and told she was no longer considered a juvenile. She’ll spend 10 years in prison and then serve 10 years on probation. She will be under supervision until she is 35, but she’ll be branded a felon for life. Then what???

    Florida housed more children – 143 – in adult prisons than any other state, according to a 2016 report by the Bureau of Justice Statistics. Of those, five were girls. Minors are left isolated in their dorm, keeping them separate from the adults who are incarcerated.

    She spent a lot of time in solitary confinement. There are no resources to meet the growing psychological or physical needs of children in adult prisons. In her first year, she graduated as Valedictorian with her GED. She was doing a college correspondence course that I paid to have mailed to her, but there are no resources to help with that. They are left bored and with no opportunities of meaningful programs. There are no rehabilitative programs in prison.

    It’s fact – not opinion – that a teenager’s brain is not fully developed to weigh risks and consequences. That’s why we don’t allow children to vote, serve on juries or enter legal contracts. It’s why they do stupid stuff! Children are the most rehabilitative of all, yet when children commit a crime, Florida chooses to treat them as adults more than in any other state. Every year, more than 1,000 children are prosecuted as adults in Florida. Almost all of them are sent directly to the adult system by prosecutors, with no evaluation or judicial review. One wrong decision and your child could be next!!!!!!

    We must take adult prosecution – especially at the sole discretion of prosecutors – of our youth more seriously. That’s why I’ve become an advocate on these issues. I’m also doing my Master’s in Criminal Justice so I know we can do better. So please, I ask you to limit adult prosecution of Florida’s youth. We are failing them, not helping them. I also ask to reconsider mandatory minimums and look at the total picture. Parole in Florida needs to also be considered. Where is the incentive with 85% sentences? It’s not a deterrence and simple incapacitation(warehousing) doesn’t work. It’s just society seeking retribution. That’s it! But we must remember that most come home. Don’t we want them to be better people? That makes it safer and more cost effective. I’m sharing Taylor’s story, because she – and every child – deserves to be more than just a statistic.
    Kim Lawrance

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