INSIGHT: Prosecutors Using Charging Discretion Can Reform the Criminal Justice System

In our criminal justice system, the road to meaningful reform runs directly through the prosecutor’s office. Prosecutors serve as gatekeepers, determining whether to charge, whom to charge, and what to charge. The American Bar Association even states that prosecutors should exercise “discretion to not pursue criminal charges in appropriate circumstances.”

Yet for decades, prosecutors across the country have employed charging discretion only in extenuating circumstances, maintaining a “tough on crime” approach to secure elections and cultivate public personas.

Fortunately, we are beginning to see a change. Today many progressive prosecutors are running on, implementing, and realizing the results of policies that promote charging discretion to correct some of the imbalances encumbering the criminal justice system.

Intervention Programs

Milwaukee District Attorney John Chisholm (D) exercises his charging discretion through the Milwaukee County Early Intervention Program, which uses research-backed risk assessment scales to distinguish an individual’s risk of re-offending. Those considered low-risk can complete a diversion program after which charges are dropped and the arrest removed from the person’s record. Those considered moderate-to-high risk can have their prosecution deferred as they work toward a law-abiding life.

The results? Between March 2014 and June 2016, more than 1,100 people participated in either the diversion or deferred prosecution programs with success rates of 81% and 77% respectively.

In Manhattan, DA Cyrus Vance (D) wants his assistant district attorneys to exercise their discretion not to prosecute many low-level, non-violent crimes such as possession of marijuana, theft of services (“turnstile jumping”), possession of a controlled substance, unlicensed vending, and driving a vehicle on a suspended license. Due to these policy changes, the number of misdemeanor prosecutions have declined 28% in a four-year period.

Brooklyn DA Eric Gonzalez (D) uses his charging discretion to address large public safety issues. He declines to criminalize opioid addicts through programs like CLEAR (Collaborative Legal Engagement Assistance Response). CLEAR is designed to divert those arrested for narcotics possession into harm reduction services where they can meaningfully engage with support services instead of prosecution.

In an even bolder use of discretion, Gonzalez has implemented Project Redirect, a program designed to give first-time gun possession offenders a second chance. Typically, those arrested for possession of a firearm get three years of incarceration. However, through Project Redirect, if a qualifying young person is arrested for possession of a firearm and pleads guilty up front, the DA’s office may defer sentencing while the participant works through an 18-24 month intensive program.

Participants are required to wear GPS ankle monitors, adhere to a dress code, get random drug testing, and attend regular counseling sessions. Upon successful completion of the program, the gun charge may be dismissed.

Decrease in Number of Cases

In Philadelphia, DA Larry Krasner (D)—a former defense attorney—has directed his assistant district attorneys not to prosecute marijuana possession cases where there was no intent to sell, not charge sex workers with prostitution crimes (under many circumstances), and not charge more than a citation for those arrested for retail theft under $500.

Cognizant of the impact that a conviction can have on undocumented immigrants, Krasner also created a new position whose sole focus is to protect undocumented immigrants from the collateral consequences of interacting with the criminal justice system. This use of charging discretion has so significantly decreased the number of cases that the Philadelphia court system has closed many of its courtrooms.

On the West Coast, King County (Seattle) DA Daniel Satterburg (D) announced his intention in 2018 not to charge crimes involving possession of 1 gram or less of drugs, including heroin.

However, this was not the first time he blazed a prosecutorial path. In 2011, Satterburg introduced the first-of-its-kind pre-booking diversion program known as LEAD (Law Enforcement Assisted Diversion) which empowers law enforcement to divert low level drug offenders and those suspected of prostitution to case workers for access to wrap-around services. Since its introduction, the model has been replicated by more than 20 cities around the U.S. and a 2015 study found that LEAD reduced recidivism rates by 60 percent.

Critics

While these progressive prosecutors represent paradigm shifts in their jurisdictions, their efforts have not been free of opposition or criticism.

Chisholm has fought a community perception that early intervention programs excuse otherwise serious criminal behavior and let criminals off the hook. Gonzalez’s gun possession diversion program has been blamed for an increase in shootings in parts of Brooklyn even though the borough experienced an overall decline in shootings for three consecutive years.

Other prosecutors have faced backlash around the fear that progressive policies increase crime rates and adversely impact communities.

In Manhattan, community members have raised concerns that Vance’s decision not to prosecute turnstile jumping will lead to increased fare evasion and decreased revenues for the city. Critics of Satterburg argue his unwillingness to charge personal possession of narcotics has fueled Seattle’s homelessness problem.

Still other prosecutors, such as Philadelphia’s Krasner, have become lightening rods for broader criticism, the most notable coming from President Donald Trump who sees Krasner as part of a “dangerous trend” of prosecutors in our nation’s largest cities who choose not to prosecute.

Takeaways

Regardless of criticism, progressive prosecutors around the country are using their charging discretion as an instrument of reform. Their work is both critical and timely. By using this charging discretion, they help people avoid being unnecessarily charged with a crime; arraigned; held in custody; forced to come to court and live with an open case for years; put on trial; subjected to court fees, fines, and jail time; given a criminal record; denied employment opportunities; and, in some cases, deported.

Our system affords prosecutors unmatched power to determine whether or not to charge a person with a crime. In wielding that power judiciously, prosecutors can alter the fate of hundreds of thousands of individuals, repair relationships within the community, and promote public safety and fairness.

As the era of the progressive prosecutor continues, we will hopefully see many more use their discretion to rebalance the scales of justice.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

David Baumwoll is an attorney in New York and serves as a consultant for the Institute for Innovation in Prosecution (IIP). He previously served as an assistant district attorney at the Bronx County DA’s Office and as associate counsel to the New York City Mayor’s Office of Criminal Justice.

This feature is a product of the Institute for Innovation in Prosecution’s Executive Session.