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.
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.”
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.