Wednesday, June 29, 2016

On the need to measure (and limit) prosecutor discretion

Grits has been thinking quite a bit about Prof. John Pfaff's observations that we don't have a lot of data about prosecutors' functions, and what might be done about it. So I was delighted to discover this relatively new academic paper titled, "Prosecutorial Analytics," from Jason Kreag out of U. of Arizona's law school, which instantly vaulted to the top of Grits' to-read list  Also check out Conor Friedersdorf's piece in The Atlantic on prosecutors titled, "Travesties in criminal justice that are mostly ignored."

Regarding that latter recommendation, I should say I disagree somewhat (and suspect Shannon Edmonds, much less John Bradley, would, too), with Friedersdorf's contention that "Comparatively little attention has been paid to the role that prosecutors and local courts play in the criminal justice system." It's just that most of that attention has focused on outright prosecutorial misconduct and has taken place in the context of the innocence movement.

Decarceration advocates, by contrast, are asking that we consider not just outright misdeeds by prosecutors but also harmful use of their legal discretion. Upon asking the question, one immediately discovers that there's scarce little data - much less apples-to-apples data across jurisdictions - to judge prosecutors' practices related to over-incarceration. Since it's impossible to control what one cannot measure, developing those metrics is an important, oft-neglected step toward confronting mass incarceration. Which is why I'm oddly looking forward to diving into the dryly titled "Prosecutorial Analytics" for Grits' holiday-weekend reading.

MORE (7/3): From "Prosecutorial Analytics," which "argues that analytics offers promise as a tool to 1) regulate prosecutors’ expanding power; 2) more accurately measure prosecutorial performance; and 3) improve constitutional decision-making."
Analytics can mine historical data to help identify prosecutors who might be more likely to commit misconduct in the future. It can help identify prosecutors or prosecutorial offices that engage in or are more likely to engage in race-based jury selection practices. It can also help identify undesirable trends in charging and plea bargaining. Simultaneously, it can provide the public better data to evaluate prosecutorial performance. We are unlikely to ever approach the equivalent of open-source prosecuting, but analytics gets us closer. And in doing so, it promises dramatic increases in transparency.
Here are some suggestions for using analytics to identify patterns in prosecutorial charging decisions:
While many studies focus on the racial implications of prosecutorial charging decisions, analytics can deliver relevant information about additional factors, including factors that do not raise constitutional concerns. For example, we could track 1) how often the crime of arrest corresponds to the charged crime and to the ultimate conviction; 2) which crimes are complements in the sense that they are often charged together; 3) how often is a particular crime charged and how often is it dropped (and at what stage); and 4) whether these actions correlate with a host of variables including, the race and gender of the defendant and victim, whether the defendant is in custody pre-trial, or, for example whether the defendant is represented by a private or public defense attorney. Importantly, this information could be compared among prosecutors, across different prosecutorial offices, and over time.
 Also: "While the Court’s Fourth Amendment jurisprudence has allowed the growth of analytics as a crime-fighting tool, constitutional criminal procedure has simultaneously insulated prosecutorial decision-making from its reach."

AND MORE: Another recent academic paper for the reading list: "The nature and function of prosecutorial power."


DLW said...

Prosecutors have a hard time remembering that the fact that the Legislature gives them the ability to do something extremely harsh is not the same as REQUIRING them to do something extremely harsh. An easy example is DWI enhancement. Prior to 2005 the DA's could only use priors 10 years old or younger to enhance a new DWI to a felony. The Legislature removed that time constraint because the DA's kept pushing that boundary and messing up the enhancements.

It is hard to successfully persuade a mean ADA that the Lege isn't forcing them to enhance a guy with a 2016 case and priors from 1974 and 1981.

Anonymous said...

I would like to see a jury presented with a Prosecutor's "indiscretions" by a defense team. How many prosecutors have DWIs or drug possessions of past youth?

Anonymous said...

Ameri Denson Clark III, Jack Skeen, and Matt Bingham from Smith County is why prosecutors must have limits and held criminally accountable.

Anonymous said...

Quite frankly, most people, lawyers included, would not fair well on any kind of law enforcement background investigation. There will always be something regardless of whether it could be proven. There's no burden of proof in a BI. But it's a tool, you see. It's a tool to rule out most people, say there aren't any qualified applicants, and demand monetary increases to attract more "qualified" applicants. There's no uniform standard of a BI. None whatsoever. There are minimum qualifications from state to state, federal, etc. And perhaps an individual does happen to meet this trivial standard. After that, nothing. Ever. No periodical re-investigation to the same degree as when first conducted. Perhaps a "cursory" review, but no full blown re-qualification.