Committee Prosecution: Using Expert Opinion to Make Criminal Justice Decisions More Impactful
* Assistant Public Defender in Tennessee. The views expressed in this article are mine alone and do not necessarily reflect the opinions of my employer. Appreciation goes out to my clients who show me that they are more than what society says they are. Also, thanks to Trey McClarnon, Dr. Bill Meyer, Douglas Berryhill, Carolyn Hearn, and the student editors at the Michigan Journal of Law Reform for making this paper clearer, stronger, and more compelling.
Those uninitiated to the reality of the United States’ criminal justice framework may believe that judges are the most powerful actors in the system. These casual observers watch crime shows filled with trials where judges make rulings and yell at people who are out of line.1See, e.g., Law & Crime Network, Top 5 Angry Judge Moments in Court, YouTube (Mar. 23, 2022), https://www.youtube.com/watch?v=Ab6S1_GlXTA&ab_channel=Law%26CrimeNetwork [https://perma.cc/DCL7-JVQZ]. Viewers may believe in the adversarial system as a war between zealous prosecutors seeking justice and defense attorneys fighting for their client’s innocence. They may think of judges as neutral arbiter who makes the ultimate decisions. Unfortunately, that is not the case.
Alternatively, casual observers may think that the jury is the most powerful actor in the criminal justice system. This is certainly an aspiration of those who believe in the system as a tool for a community to control its own behavior. If the system is meant to be run by the people, then getting a group of people together to determine guilt or innocence is certainly one way of giving regular people the power. And there is no doubt that juries play central roles in the trials where they are called. However, juries are almost never called, and judges are not determining the outcome of most cases.2John Gramlich, Only 2% of Federal Criminal Defendants Go to Trial, and Most Who Do Are Found Guilty, Pew Rsch. Ctr. (June 11, 2019), https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/ [https://perma.cc/8HTN-KUBA]. Instead, the system is designed so that all parties are motivated to settle a case with a plea deal instead of going to trial.
Because of this, prosecutors are the most powerful actors in the criminal justice system.3Angela J. Davis, The American Prosecutor – Power, Discretion, and Misconduct, 23 Am. U. L. Rev. 1, 27 (2008), excerpted from Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (Oxford University Press, Inc., 2007; see also Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 879 (2008) (for example, it is constitutional for prosecutors to threaten to bring more charges or impose a higher sentence if a person takes their case to trial). Prosecutors make the charging decisions and often hold all the cards during the negotiations. Defense attorneys are left to choose between potentially harsh sentencing at trial and cutting a deal with the other party–forced to pick an inconvenienced judge or an unyielding prosecutor.4J. Vincent Aprile II, Judicial Imposition of the Trial Tax, 29 Crim. Just. 30 (2014).
Our criminal justice system has been described as a system of pleas.5Lafler v. Cooper, 566 U.S. 156, 165 (2012) (holding that criminal defendants have the right to effective assistance of counsel during plea bargaining in part because any other outcome “ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials”). Very few people take their cases to trial and most end up pleading guilty. In these pleas, the prosecutors typically choose what the sentence will be, and the defendants must simply accept the sentence.6Davis, supra note 3, at 25-26 (“Prosecutors are the most powerful officials in the criminal justice system. Their routine, everyday decisions control the direction and outcome of criminal cases and have greater impact and more serious consequences than those of any other criminal justice official.”). Though defense attorneys work tirelessly to negotiate the best possible sentences, prosecutors make the relevant decisions in the end, giving prosecutors incredible power.
The casual observer may not understand why this is important. Prosecutors are elected, or appointed by elected officials, and, therefore, theoretically act in the will of the people. If a prosecutor acts inappropriately, the optimist might think, constituents will vote them out. Unfortunately, the history of the criminal justice system is replete with examples of prosecutors acting improperly while maintaining their jobs and, often, being promoted to judges.7Id. at 26 (“Even elected prosecutors, who presumably answer to the electorate, escape accountability, in part because their most important responsibilities – particularly the charging and plea bargaining decisions – are shielded from public view.”); a morbid but all-too-frequently true joke I heard told in law school – “What do you call a prosecutor who commits misconduct and convicts an innocent person? Your honor.”
This article proposes a different method – a way in which negotiation is conducted, not between two lawyers in the hallways of a courthouse, but between a defendant and a board of experts. In tandem, prosecutors’ offices should be organized where they consider input from experts such as criminologists, social workers, and mental health professionals to make decisions that actually help people and prevent crime. This is not an argument for or against any specific sentencing philosophy, but a proposal that the experts on sentencing and recidivism need to be in the room where sentencing decisions are made.
The article will proceed in five sections. The first section outlines the history of prosecutors’ offices and explains their power. The second describes the failings of this method. The third proposes a model of prosecution that uses a committee of experts to decide what should happen with a case. The fourth presents and confronts potential objections to this model. The fifth concludes.
I. Prosecutorial Discretion
The use of prosecutorial discretion plays a significant role in controlling our criminal justice system. This means that prosecutors have the power to weigh various factors when evaluating a case.8Bruce Frederick & Don Stemen, The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making – Technical Report, National Inst. of Justice, at 59-70, (2012) (reporting that researchers found that prosecutors’ decisions were guided by two basic questions: “Can I prove the case?” and “Should I prove the case?”). Defense attorneys bring these factors to the prosecutors’ attention and the prosecutors use their discretion to settle a case, dismiss a case, or pursue a case to trial.9Id. at iii (“The first question was most influential at the outset of a case, where the objective strength of evidence was the determining factor in most screening decisions. Later, factors such as the seriousness of the offense, the defendant’s criminal history, characteristics of the defendant and victim, and contextual factors became increasingly influential, as prosecutors evaluated whether a case should go forward.”) However, there is very little oversight into how prosecutors use this discretion, which has a major impact on the outcome of a case. This section will outline several ways that prosecutors exercise this discretion.
Prosecutors often play a large role in investigating cases.10Leslie C. Griffin, The Prudent Prosecutor, 13 Geo. J. Legal Ethics 259, 267 (citing Rory K. Little who “provides the following catalogue of activities included in the prosecutor’s investigative role: ‘Prosecutors have grand jury subpoenas for testimony and for documents or other physical items at their disposal. They may seek search warrants and various forms of electronic surveillance orders. They may authorize and oversee secretive undercover investigations. They may order physical surveillance of targets or witnesses. They may send agents to interview witnesses overtly, at the witness’s home or business. They may direct persons to provide fingerprints, voice exemplars, or other non-testimonial items of physical evidence. Finally, they may plea bargain with criminal actors, offering leniency or even immunity, in return for undercover assistance against other criminal targets and testimony later if required.’”). A law enforcement officer who is considering taking a warrant or interviewing a witness may reach out to the local prosecutor’s office to discuss case strategies. Such discussion gives the prosecutor the ability to frame the evidence that will be used in the future prosecution.
Prosecutors can become involved in the investigation of many serious cases.11James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1536 (1981) (“Prosecutors make important decisions about how investigative resources will be allocated. Federal and some state prosecutors can direct scores of FBI agents or state and local police, respectively, to gather evidence. Occasionally a prosecutor will invest unusually large resources in the investigation and prosecution of a particular suspect …”). Prosecutors may consult with law enforcement in developing high-stakes and highly publicized cases, such as murder cases or cases involving allegations of sexual abuse. In these cases, prosecutors have a lot of involvement during the investigatory stage, but this involvement is one-sided.12Griffin, supra note 10, at 267 (quoting H. Richard Uviller, The Tilted Playing Field: Is Criminal Justice Unfair? 36 (1999) (“‘When the case is one of those numerically few but substantively important prosecutions, state or federal, that are begun from scratch by the prosecutor, the elements of choice multiply and the prosecutor’s authority to initiate prosecution becomes a major factor in shaping the case to come.’”)).
Attorney involvement in the investigation stage is not reciprocal in criminal cases: defense attorneys do not usually have the opportunity to help their clients before charges are brought because the right to counsel attaches “at or after the time that judicial proceedings have been initiated” against a person.13Brewer v. Williams, 430 U.S. 387, 436 (1977). Often, indigent defendants do not have counsel appointed until after the charging decision has been made.14See Guide to Judiciary Policy, Vol. 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 2: Appointment and Payment of Counsel, §220.10. (quoting “A person financially eligible for representation should be provided with counsel as soon as feasible after being taken into custody, when first appearing before the court or U.S. magistrate judge, when formally charged, or when otherwise entitled to counsel under the CJA, whichever occurs earliest.”). Theoretically, citizens have the right to speak with a lawyer before any custodial interrogation, but law enforcement officers are not necessarily prohibited from manipulating people into waiving their right to counsel.15Nancy E. O’Malley, Miranda Waivers, 2020 Alameda County District Attorney’s Office 1,3 (citing Illinois v. Perkins, 496 U.S. 292, 297 (1990) “Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.”).
Thus, prosecutors can work with law enforcement to build their case before the government brings formal charges against a person. Defense attorneys do not have the same opportunity and may only impact the case once they are appointed or hired. This power differential begins before the case even starts.
A similar power disparity exists in charging decisions. Prosecutors have complete discretion about what charges to bring.16Bruce Frederick & Don Stemen, supra note 8, at 176 (“If a case is accepted for prosecution, an ADA determines what charges to file. This occurs nearly simultaneously with the decision to accept or reject a case at screening . . . While a case may be accepted for prosecution, individual charges may be rejected. Moreover, a prosecutor may add additional charges to the case that were not part of the original arrest charges. The result may be an increase or decrease in the severity of charges filed relative to the original arrest charges or an increase or decrease in the aggregate number of charges filed relative to the original arrest charges.”). By evaluating the evidence and selecting charges based on their interpretation of the facts, prosecutors are empowered to set the terms of the engagement from the outset. 17Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 Fordham L. Rev. 851, 864 (1995) (“It is clearly unethical for a prosecutor to charge an accused with offenses for which the prosecutor knows there is no factual basis.”). This discretion confers a distinct advantage upon prosecutors, as defense attorneys are relegated to responding to the charges brought against their client rather than actively shaping the case.
In cases where police charge someone without prior consultation with prosecutors, the prosecutors retain control over charging at later stages.18See United States v. Goodwin, 457 U. S. 368, 378-79 (1982) (upholding a conviction where the prosecution modified a charge six weeks after the defendant requested a trial). If the case survived a probable cause determination, prosecutors could choose to modify charges, bring new charges, or dismiss existing charges at the grand jury stage.19Id.; see also Griffin, supra note 10, at 268 (noting that one restriction on the charging decision is that their decision must be supported by probable cause and that even this restriction may not be very restrictive in practice.).
Decisions made at this early stage of the proceedings are incredibly impactful on the individuals who prosecutors decide to charge. Many innocent people will decide to plead guilty in response to charges, either due to fear of a harsh sentence if convicted, or simply to get out of jail if they are being held on a bail they cannot afford.20The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers (2018) (Noting how prosecutors have long used mandatory minimums to strong-arm people into pleading guilty, and “[a] system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy [its] burden.”). The decision to charge someone with a crime can ruin their life, and these decisions are left almost exclusively to prosecutors, without any input from those who will be directly impacted by these decisions.
Defense attorneys, like in investigations, are not involved until after the charging decision is made. This timing is too late to influence the charges brought against their client, which limits their ability to mount an effective defense during plea bargaining.
C. Plea Bargaining
Plea bargaining represents a significant aspect of prosecutorial discretion.21See Griffin, supra note 10, at 270 (quoting “Because the normal resolution of criminal cases now occurs through plea bargains, not through criminal trials, the prosecutor’s discretion in plea bargaining is an essential component of the criminal system.”). Prosecutors can decide to drop charges that have strong evidentiary support or insist on a guilty plea on a charge that lacks evidence beyond a reasonable doubt. Unlike defense attorneys, who represent clients who have individual interests and rights in their cases, prosecutors represent the government and make decisions on its behalf.
Prosecutors have more power than judges in many of these circumstances. By dismissing or modifying charges during the plea bargaining process, a prosecutor can dismiss or modify a charge in plea bargaining to give someone a sentence that a judge would be unable to impose if the defendant were found guilty at trial.22See National Association of Criminal Defense Lawyers, supra note 20, at 16 (“Although judges retain ultimate authority over final sentences, mandatory minimum sentencing statutes – which are only triggered by a prosecutor’s decision to charge under the statute – curb judges’ discretion in many instances.”). A mandatory minimum sentence may apply to a specific charge, but a prosecutor may offer a plea deal that allows the defendant to plead guilty to a lesser charge,23See William Ortman, Second-Best Criminal Justice, 96 Wash. U. L. Rev. 1061, 1072-73 (2019). thereby avoiding the mandatory minimum sentence.
This authority has potential costs and benefits to criminal defendants. Beneficially, it can enable defendants to avoid a harsh sentence on a charge with strong evidentiary support.24See generally Ben Grunwald, Distinguishing Plea Discounts and Trial Penalties, 37 Ga. St. U. L. Rev. 261, 277 (2021) (proposing that we should define a normative baseline for what a sentence should be and then decide whether the actual sentences fall above or below those levels). A prosecutor can exercise their moral judgment to allow a defendant to plead guilty to charges that do not carry a mandatory minimum or avoid imprisonment by accepting probation. However, prosecutors can use this power to coerce defendants into pleading guilty to charges that they may not be able to prove beyond a reasonable doubt in a trial. In such cases, prosecutors may offer defendants a choice between accepting a plea bargain or risking a harsher sentence if convicted at trial. Defendants who lack the resources to endure trial may be particularly vulnerable to such pressure.25A reader may object that someone would not plead guilty to a crime with only weak evidence against them because, they believe, someone would not plead guilty to a crime that they did not commit. However, such pleas are common and, I expect, happen in nearly every court that accepts pleas. This happens for many reasons which are adequately addressed in other places. See National Association of Criminal Defense Lawyers, supra note 20, at 5 (“There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk.” And “The trial penalty cannot be attributed to any single cause. Rather, many shortcomings across the criminal justice system combine to perpetuate this injustice.”); see also Griffin, supra note 10, at 271-72 (“Once prosecutors decide to charge, even innocent defendants may feel compelled to plead guilty out of fear that a jury might convict them.”).
This discretion is also not meaningfully controlled. Generally, judges may not interfere with settlement negotiations, as doing so would infringe upon the separation of powers between the judicial and executive branches of government.26Vorenberg, supra note 11, at 1546 (“Courts often justify their refusal to review prosecutorial discretion on the ground that separation-of-powers concerns prohibit such review. These considerations have prevented courts from forcing a prosecutor to initiate criminal proceedings and, in most American jurisdictions, would probably prevent the legislature from removing that power from the prosecutor altogether.”). Even if judicial oversight existed, the substance of these bargains is done behind closed doors or on the telephone – hidden from the public eye. Therefore, there is no record to review to determine whether the prosecutor fairly or reasonably exercised their discretion.27William T. Pizzi, Revisiting the Mantions and Gatehouses of Criminal Procedure: Reflections on Yale Kamisar’s Famous Essay, 12 Oh. St. J. Crim. L. 633, 638 (“Because plea bargains are largely hidden from view – the evidence of the crime remains hidden and untested, and courtroom admissions of guilt – it is hard to evaluate how fair our plea bargaining system is to defendants.”).
Prosecutors making sentencing decisions are playing quasi-judicial roles because they are frequently making the determinations of the ultimate outcome of a case, including the finding of guilt and the imposition of a sentence. Normally, judicial decisions like these are made by a neutral adjudicator in a public forum, where an aggrieved defendant can appeal to a higher court for review.28See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980), (citing Carey v. Piphus, 435 U.S. 247 (1978) and Matthews v. Eldridge, 424 U.S. 319 (1978) (“The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision-making process…The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or law.”). Under the current judicial system, prosecutors enjoy a high degree of autonomy in their sentencing decisions, with little or no meaningful review to ensure that their decisions are fair and just.
II. Failings Due to Attorney Involvement
An under-discussed part of the prosecutorial discretion analysis is the fact that prosecutors are lawyers. Why have we given lawyers this much power over the lives of other people? People assume that lawyers are the right people to make these decisions. This section will argue that lawyers, and specifically prosecutors, should not be given this deference in criminal justice decision-making for a variety of reasons.
The allocation of significant power to lawyers has raised questions about the ethics and effectiveness of their role; although the profession is held to high ethical standards, reality has shown that many lawyers fail to live up to their professional code of conduct. According to the American Bar Association, 2,308 lawyers were disciplined by their state bar associations in 2019 for misconduct.29Amer. Bar Ass’n,, ABA Profile of the Legal Profession 84 (2021). Of those disciplined 44% were suspended, 21% were disbarred, 11% were placed on probation, and 24% received admonishments, reprimands, or censures.30Id.
Society is not particularly fond of lawyers generally, as evidenced by a plethora of lawyer jokes31See Steven D. Price, The World’s Funniest Lawyer Jokes: A Caseload of Jurisprudential Jests (2011); Sid Behrman, The Lawyer Joke Book (1991). and the low approval rating of Congress, 32See Congress and the Public, Gallup, https://news.gallup.com/poll/1600/congress-public.aspx [https://perma.cc/HA7D-GW2S]. which is comprised of many lawyers.33Attorneys in the 117th Congress, Amer. Bar Ass’n. (Jan. 26, 2021), https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/january-2021-wl/attorneys-117thcongress/ [https://perma.cc/VYS3-V692]. One commonly held view of defense attorneys is that they are morally suspect grifters who only care about helping murderers or molesters.34See 5 Things TV gets Wrong about Defense Attorneys, The Law Office of Craig M. Greaves (Apr. 12, 2023), https://www.greaveslaw.com/5-things-tv-gets-wrong-about-defense-attorneys/ [https://perma.cc/9ND7-CZJU]. However, prosecutors are one group of lawyers that tends to garner respect. Why? Because they are viewed as not advocating the interests of any client but, instead, working to seek justice and uphold fairness.35See Janet Portman, The Prosecutor’s Job, Lawyers.com (Sept. 24, 2021) https://www.lawyers.com/legal-info/criminal/criminal-law-basics/keeping-law-and-order-the-prosecutor.html [https://perma.cc/VS9G-PWRT] (“Although a prosecutor regularly deals with police officers, witnesses, and victims, the prosecutor’s primary obligation is not to serve the interests of these parties. However sympathetic to the suffering of a victim, the prosecutor is also not the victim’s lawyer. Instead, the prosecutor’s duty is to serve the cause of justice…. [T]he prosecutor’s true client is justice itself, [which means that the prosecutor] must exercise discretion (sound judgment) at every step in the criminal investigation, trial, and beyond.”).
In theory, their job requires them to be impartial, to enforce the law, and to exercise power over those around them. Their job requires them to consider what is best for society and use legal rules to pursue those goals. This requires a unique skill set that cannot be easily acquired without formal training in criminology, social work, or education.
However, if the system worked well, then our society would not have an astronomically high incarceration rate.36See The Sentencing Project, U.S. Criminal Justice Data https://www.sentencingproject.org/research/us-criminal-justice-data/ [https://perma.cc/DY4T-6KN4]; see also Lauren-Brooke Eisen, Oliver Roeder, & Julia Bowling, What Caused the Crime Decline, Brennan Center for Justice, (2015), https://www.brennancenter.org/our-work/research-reports/what-caused-crime-decline [https://perma.cc/5R8K-HJAJ] (The report “concludes that over-harsh criminal justice policies, particularly increased incarceration, which rose even more dramatically over the same period, were not the main drivers of the crime decline. In fact, the report finds that increased incarceration has been declining in its effectiveness as a crime control tactic for more than 30 years. Its effect on crime rates since 1990 has been limited, and has been non-existent since 2000.”); see also John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2007) at 1 (“The statistics are as simple as they are shocking: The United States is home to 5 percent of the world’s population but 25 percent of its prisoners. We have more total prisoners than any other county in the world, and we have the world’s highest incarceration rate, one that is four to eight times higher than those in other liberal democracies, including Canada, England, and Germany. Even repressive regimes like Russia and Cuba have fewer people behind bars and lower incarceration rates.”).. We would not incarcerate disproportionate numbers of Black and brown people.37See Ashley Nellis, The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons, (2021), https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/ [https://perma.cc/3T6S-B2BH] (“This report details our observations of staggering disparities among Black and Latinx people imprisoned in the United States given their overall representation in the general population. The latest available data regarding people sentenced to state prison reveal that Black Americans are imprisoned at a rate that is roughly five times the rate of white Americans.”). We would not have a sprawling criminal justice system that entraps people in cycles of debt that prevent them from becoming economically successful.38Poverty and Debt, Prison Pol’y Init., https://www.prisonpolicy.org/poverty.html [https://perma.cc/6NT9-W48P] (“Poverty is not only a predictor of involvement with the justice system: Too often, it is also the outcome. Criminal punishment subjects people to countless fines, fees, and other costs (often enriching private companies in the process). A criminal record, meanwhile, does lasting collateral damage.”). We would, instead, pursue criminal justice policies that bring people out of poverty, addiction, and crime and reintroduce them, reformed, into society. Despite these goals, several factors prevent prosecutors from pursuing these productive aims.
Lawyers are a section of the population that is particularly ill suited to being in this role due to the differences in demographics between lawyers and those subject to the criminal justice system.39This section does not intend to argue that changing demographics of criminal justice decision makers alone would necessarily result in a fairer system. It simply argues that the people who make the decisions currently lack a diversity that may be helpful in making those decisions. This conclusion is based in part on the significant scholarship describing the importance of a diverse judiciary. See Alicia Bannon and Douglas Keith, What Research Shows About the Importance of Supreme Court Diversity, Brennan Center for Justice (Feb. 1, 2022), https://www.brennancenter.org/our-work/analysis-opinion/what-research-shows-about-importance-supreme-court-diversity [https://perma.cc/R5JW-FXZY] (arguing that a diverse judiciary “helps instill trust in the justice system among underrepresented communities,” “promotes a richer jurisprudence,” and “establishes role models and combats stereotypes.”). Diversity in the prosecution field could potentially achieve these same goals. According to the ABA’s 2020 survey, lawyers are disproportionately white, with 86% of lawyers being white compared to 60% of the general population.40See Amer. Bar Ass’n, ABA Profile of the Legal Profession 37 (2020), https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020.pdf [https://perma.cc/3A3B-YEV4]. Additionally, in 2015, 95% of elected prosecutors were white.41Dawn R. Wolfe, Racial Disparity Among Prosecutors and Trial Judges Translates to Unequal Justice, Activists Say, The Appeal (Jul. 24, 2020), https://theappeal.org/racial-disparity-among-prosecutors-and-trial-judges-translates-to-unequal-justice-activists-say/ [https://perma.cc/8JGA-K8M5].
While these numbers are troubling in isolation, they are particularly concerning when compared with the disproportionately high numbers of Black individuals who come before the criminal courts. For instance, in 2018, Black individuals represented only 12.5% of the U.S. population, but they constituted 33% of arrests for nonfatal violent crimes.42Allen J. Beck, U.S. Dep’t Just. Bureau of Just. Stat., Race and Ethnicity of Violent Crime Offenders and Arrestees (2018) U.S., https://bjs.ojp.gov/content/pub/pdf/revcoa18.pdf [https://perma.cc/3TTA-FX49].
Additionally, Black people generally have worse outcomes with criminal justice contacts as compared to white people. An American Bar Association article explains that Black people constitute 22% of fatal police shootings, 47% of wrongful conviction exonerations, and 35% of individuals executed by the death penalty.43Shasta N. Inman, Racial Disparities in Criminal Justice: How Lawyers Can Help, Amer. Bar Ass’n, (Sept. 18, 2020), https://www.americanbar.org/groups/young_lawyers/publications/after-the-bar/public-service/racial-disparities-criminal-justice-how-lawyers-can-help/ [https://perma.cc/SD88-A6M9]. The article continues:
African Americans are incarcerated in state prisons at five times the rate of whites. Black men face disproportionately harsh incarceration experiences as compared with prisoners of other races. Racial disparities are also noticeable with Black youth, as evidenced by the school-to-prison pipeline and higher rates of incarceration for Black juveniles.44Id.
Lawyers not only differ from the people involved in the criminal justice system in terms of race, but also in terms of educational background. Obviously, lawyers are required to obtain a bachelors and law degree to practice law, so they are inherently a highly educated group themselves. But they also tend to come from educated backgrounds. In 2019, 29% of law students were first generation – meaning that 71% of law students had at least one parent who attended college.45Melissa A. Hale, The Importance of Supporting First-Generation Law Students, Law Student Survey of Student Engagement, (Jun. 11, 2023), https://lssse.indiana.edu/tag/first-generation/ [https://perma.cc/J5MV-DVW7]. This suggests that lawyers may have limited understanding of the experiences and perspectives of individuals who come from less privileged backgrounds.
Criminal defendants, on the other hand, have lower levels of education than the general population, and the risks of incarceration are higher in communities that have lower education levels.46Justice Policy Institute, Education and Public Safety 1-2 (2007), https://justicepolicy.org/wp-content/uploads/2022/02/07-08_rep_educationandpublicsafety_ps-ac.pdf [https://perma.cc/CF8D-GMGV] (Finding that “Graduation rates were associated with positive public safety outcomes;” that “States that had higher levels of education attainment also had crime rates lower than the national average;” that “States with higher college enrollment rates experiences lower violent crime rates than states with lower college enrollment rates;” that “States that made bigger investments in higher education saw better public safety outcomes;” and that “The risk of incarceration, higher violent crime rates, and low educational attainment are concentrated among communities of color, who are more likely to suffer from barriers to educational opportunities.”). This observation does not intend to suggest that uneducated individuals are best suited to manage the criminal justice system, but rather highlights yet another way that prosecutors’ life experiences differ from those of the people they prosecute.
The problems do not stop with demographic differences. Prosecutors also have political motivations to pursue harsh criminal justice outcomes. In most states, prosecutors are elected officials and some leverage “tough on crime” rhetoric to sway conservative voters.47The Prosecutors and Politics Project, Univ. N. C. Sch. of L., National Study of Prosecutor Elections, 4 (2020) (“Forty-five states elect prosecutors at the local level). Some candidates for prosecutor leverage “tough on crime” rhetoric to sway conservative voters.48See e.g. Sarah Bedford, Republican Prosecutor Wins Maricopa County Race with Tough-on-Crime Message, Wash. Exam’r, Nov. 16, 2022, https://www.washingtonexaminer.com/news/campaigns/republican-prosecutor-wins-maricopa-county-race-tough-crime-message [https://perma.cc/6BKE-6X9W]. This has resulted in backlash against those prosecutors who pursue humane criminal justice policies, which incentivizes others to perpetuate ineffective and outdated policies.49See Thomas Fuller, Voters in San Francisco Topple the City’s Progressive District Attorney Chesa Boudin, New York Times (Jun. 8, 2022); see also Todd Fogleson et al., Violent Crime and Public Prosecution (2022) https://munkschool.utoronto.ca/research/violent-crime-and-public-prosecution [https://perma.cc/D6X2-XBBX] (“We find no evidence to support the claim that progressive prosecutors were responsible for the increase in homicide during the pandemic or before it.”). Young assistant prosecutors occasionally enter the field with grand ideals of reform, but learn that they have little autonomy or independence.50Abbe Smith, Can You Be a Good Person and a Good Prosecutor?, Geo. J. Legal Ethics 355, 385 (2001) (“The well-intentioned believe they will have the power to do good, to make a difference, or, at the very least, to moderate excesses of the system. The truth is most prosecutors have very little discretion. For newer prosecutors and those at the lower levels in an office, there is often little autonomy and independence.”). Professor Abbe Smith goes so far as to argue that a person cannot be both a good person and a good prosecutor, due to their complicity in the expansion of mass incarceration.51Id. This does not conflict with this paper’s other argument that prosecutors have a lot of power. The lack of an ability for line prosecutors to make individual decisions about their cases does not change the fact that the prosecutors’ offices overall can make the important decisions about cases. The power is in the office, not the individual person.
Another issue is training. People who make criminal justice decisions could be trained in criminology and in what stops crime. However, the legal profession trains people on the law. Lawyers are trained to read statutes, understand cases, and make arguments about facts.52See What You Can Expect from Your Law School Experience, Law School Admission Council, https://www.lsac.org/discover-law/what-you-can-expect-your-law-school-experience [https://perma.cc/C5EA-TPJ5] (Describing the case method approach, “[y]ou may be asked questions designed to explore the facts presented, to determine the legal principles applied in reaching a decision, or to analyze the method of reasoning used.” Additionally, “[t]here is an adage that the primary purpose of law school is to teach you to think like a lawyer. This is reinforced through the case method approach. Although the memorization of specifics may be useful to you, the ability to be analytical and literate is considerably more important than the power of total recall.”). While these are good tools for weighing the strength of a case and determining whether a defendant would be convicted at trial, they are not skills useful for determining what sanction will reduce recidivism. Thus, relying solely on lawyers to make decisions about criminal sanctions and criminal justice policy may be counterproductive to the goals of reducing crime and enhancing public safety.
III. Proposal for Committee Prosecution
Our system does not have to continue its current path of keeping experts out of the room and allowing untrained prosecutors to make the important decisions. This article proposes an alternative model: prosecutors’ offices should reorganize to include a committee of experts and community members in their deliberations when they make the decisions that currently fall to individual prosecutors. Attorneys would still be involved to analyze the legal issues in the case, but they would also have input from criminologists, mental health professionals, social workers, and other people who see the effects of criminal justice outcomes more acutely and know how to reduce crime.
Criminology is a field of social science that publishes research about the causes of and solutions to crime. Our criminal justice system, which has the most ability to implement those expert recommendations, does not pay sufficient attention to criminological research. As such, the system’s actions are not based upon the relevant research. We have the expertise to make good criminal justice decisions, but we delegate the task to people with no relevant training.
Prosecutors should bring criminologists into the rooms where they make the criminal justice decisions. Giving them a seat at the table would help criminology’s discoveries guide the policies that govern people’s lives and improve our system. The prosecutors who currently make offers and charging decisions do not have the training necessary to understand the social implications of their actions. Criminologists do. Without their involvement, the system is wasting a vast resource.
Additionally, this proposal would force the system to take account of the demographic differences between prosecutors and defendants. Our current plan of achieving appropriate criminal justice outcomes is to rely on educated, middle-class, mostly white attorneys.53See supra, Section II. Yet, those people who are affected by the system have lower educational levels and lower incomes than the average population and are disproportionately minority.54See Id. Criminologists and the other experts who would be included in a committee would be trained to be aware of the demographics of the people who come before the system. Thus, even if the decision makers remain demographically skewed, the decisions themselves would be more demographically sensitive.
Under the current system, many cases are decided in one-on-one negotiations between prosecutors and defense attorneys. This interpersonal relationship is crucial to the goals of defense attorneys, so much so that they may sacrifice their client’s outcomes to win a prosecutors’ favor or maintain a positive relationship with them,55Charlie Gerstein, Dependent Counsel, 16 Stan. J. Civ. Rts. & Civ. Lib. 147, 147 (2020) (“Because defense lawyers are typically repeat players in the criminal system, they form ongoing relationships with judges and prosecutors. These relationships force them to compromise the interests of some clients to protect the interests of others, or the interests of the lawyers themselves.”). hampering an advocates’ ability to fight for their clients. Under the proposed model, the negotiations would not be between two individual attorneys but, instead, between a group of diverse experts and a defense attorney. This would reduce the importance of one-on-one negotiation and, instead, promote rational decision-making based upon the facts of the cases.
The specifics of the committees would vary depending on the office, but it may be useful to give a non-exhaustive list of types of people who would make up the prosecution committees.
A. An Attorney
While this article has been very critical of attorneys, attorneys do know the law, which is the basis of any lawsuit. An attorney on the case would conduct many of the traditional prosecutorial functions. They would look at the facts and form an opinion about how the law applies to those facts. They would consider what evidence would be necessary for a trial and consider the potential success of a trial. These are the proper jobs of an attorney and would continue under the new model.
B. A Criminologist
As discussed above, criminology has significant suggestions about how the government can reduce crime. The criminologist on the prosecution committee would provide insight on what result might best achieve anti-criminogenic results.
C. A Social Worker
The criminal justice system imposes a myriad of negative intended and collateral consequences on defendants.56See Cameron Kimble and Ames Grawert, Collateral Consequences and the Enduring Nature of Punishment, Brennan Center for Justice (Jun. 21, 2021), https://www.brennancenter.org/our-work/analysis-opinion/collateral-consequences-and-enduring-nature-punishment [https://perma.cc/Y57A-AHP8] (“Roughly 600,000 people leave prisons every year hoping that their punishment has ended, only to encounter a combination of laws, rules, and biases forming barriers to block them from jobs, housing, and fundamental participation in our political, economic, and cultural life.” The article goes on to detail the limits on employment opportunities, the tattered social safety net, and the removal of voting rights.). Prosecutors are too removed from those consequences to incorporate them fully into their decisions. The prosecutor might not fully understand how a conviction would harm someone’s financial prospects, family life, or community standing. Prosecutors are desensitized by exposure to the system’s horrors, and or overburdened by large caseloads that they do not care about the real-life consequences of a conviction or sentence.57See Adam M. Gershowitz and Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261, 264 (2015) (“Because they are overburdened, prosecutors – who are sworn to achieve justice, not to win at all costs – lack the time and resources to carefully assess which defendants are most deserving of punishment. In rare cases, this means prosecutors will be unable to separate the innocent from the guilty. In far more cases, overburdened prosecutors will be unable to distinguish the most culpable defendants from those who committed the crimes but are not deserving of harsh punishment.”). A social worker on the team would be able to bring the real-life consequences of criminal justice decisions to the forefront of the deliberations. It is not a revolutionary idea to say that the impact of criminal justice decisions should be a primary part of how those decisions are made.
D. Substance Abuse and Mental Health Professionals
Many of the people who come before the criminal justice system struggle with substance abuse or mental health disorders.58Jennifer Bronson & Marcus Berzofsky, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2022-12, in U.S. Dep’t of Just. Off. of Just. Programs, Bureau of Just. Stat.(Special Report, 2017) https://bjs.ojp.gov/content/pub/pdf/imhprpji1112.pdf [https://perma.cc/C8F5-6KWQ] (“About 1 in 7 state and federal prisoners (14%) and 1 in 4 jail inmates (26%) reported experiences that met the threshold for serious psychological distress (SPD) in the 30 days prior to a survey that was conducted between February 2011 and May 2012. Similarly, 37% of prisoners and 44% of jail inmates had been told in the past by a mental health professional that they had a mental disorder.”); Criminal Justice DrugFacts, National Institute on Drug Abuse, (2020), https://nida.nih.gov/publications/drugfacts/criminal-justice#:~:text=There%20are%20high%20rates%20of,overdose%20following%20release%20from%20incarceration [https://perma.cc/DE4X-JNJP] (“85% of the prison population has an active substance use disorder or were incarcerated for a crime involving drugs or drug use” and “inmates with opioid use disorder are at a higher risk for overdose following release from incarceration.”). The correlation between anti-social behavior and impaired brain-functioning should not be overlooked. However, prosecutors regularly ignore these factors and make assumptions about the defendant’s mental state during the commission of the crime. In some instances, prosecutors may just not put any weight on a defendant’s substance abuse or mental health issues. To address this, incorporating mental health and substance abuse professionals in the negotiation process would encourage the system to care about mental health and substance abuse and generate sentences that take such issues into account.
The insights of these professionals would not be limited to criminal defendants’ mental health or substance abuse. They would also provide information on victims: it is not uncommon for victims to have pre-existing mental health or substance abuse issues or to develop mental health issues or substance abuse problems after victimization.59For example, consider survivors of intimate partner violence. Victimization is associated with a deterioration of mental health and substance abuse. See, e.g., Keith E. Davis et al., Physical and Mental Health Effects of Intimate Partner Violence for Men and Women, 24 Amer. J. of Prev. Med. 260 (2002) (“For both men and women, physical [intimate partner violence] victimization was associated with an increased risk of current poor health, depressive symptoms, substance use, and developing a chronic disease, chronic mental illness, and an injury.”). The inclusion of these professionals would help the enable the system to better understand these issues.
E. Law Professors
While this article has lauded criminologists for their knowledge of how to reduce recidivism rates, they do not have a monopoly on such knowledge. Law professors spend careers thinking and writing about the criminal justice system and how it can be improved. They could provide important perspectives on what criminal justice decisions might best reduce recidivism.
F. Community Members
The system does not currently do a sufficient job engaging with people who come from the communities where crime occurs most often.60See Laurie R. Garduque, Engaging Community Members in Criminal Justice Reform, MacArthur Found., (Feb. 1, 2021), https://www.macfound.org/press/perspectives/engaging-community-members-in-criminal-justice-reform [https://perma.cc/MX6T-Z72V] (“We have found that most judges, prosecutors, defenders, sheriffs, and other justice system partners do not know how to effectively engage community members as equals, be accountable, or share power. We have taken steps to support learning and experimentation in this area, making grants for community engagement activities, and bringing on new technical assistance providers. Still, few of our system partners have found ways to work consistently with community members on an open and equal basis.”). Community members observe their brothers, sons, and cousins being plucked out of their communities and thrown into facilities, but they do not see changes happening to prevent crimes. This builds resentment towards police, prosecutors, and the criminal justice system as a whole. Including people who live and work in these communities would enhance the criminal justice system’s responsiveness to what the community wants and needs, rather than relying on a prosecutor who has never been to the community. 61This does not necessarily mean that sentences will be lighter. As James Foreman writes in his book, Locking Up Our Own, (Farrar, Status, and Giroux, 2017) many communities that experience significant crime have promoted punitive criminal justice policies in the name of safety. Bringing community members into the conversations can help criminal justice decisions be responsive to the communities’ needs.
IV. Potential Objections
As with any proposal, there will certainly be objections to this idea. While there will be no way to predict every potential problem that readers will have with committee prosecution, this section will respond to several anticipated points of pushback.
People may argue that an idea like this is too expensive. Currently, prosecutors handle a high volume of cases; critics could argue that the costs of adding all these professionals and experts for each case are unfeasible.62See Gershowitz supra note at 60, (“Prosecutors often have hundreds of open felony cases ad a time and multiple murder, robbery, and sexual assault cases set for trial on any given day. Prosecutors in many large cities have caseloads far in excess of recommended guidelines that scholars often cite to criticize the caseloads of public defenders. Quite simply, many prosecutors are asked to commit malpractice on a daily basis by handling far more cases than any lawyer can competently manage.”). The response to this complaint is two-fold. First, this is the very kind of task that governments are supposed to be spending money on. We already spend a lot of money on police, jails, prisons, and courts, and the inclusion of additional resources is in line with that philosophy of spending money to support a criminal justice system. Having an effective criminal justice system is one of the government’s primary mandates, so spending money to create a better system should be considered a necessary expense instead of a frivolity.
Second, if this system succeeds and reduces recidivism by tailoring criminal justice decisions to what works, then it may end up saving money.63See Michael Leachman, State Cost Savings From Criminal Justice Reforms: Some Examples, Ctr. on Budget and Pol’y Priorities (2012), https://www.cbpp.org/blog/state-cost-savings-from-criminal-justice-reforms-some-examples [https://perma.cc/Z8P8-RWE9] (“Several states have enacted criminal justice reforms in recent years that provide cost-saving alternatives to incarceration. These states have seen their crime rates remain at historically low levels or decline further.”). The United States spends a lot of money maintaining its bloated prison and jail systems; if the country can make criminal justice decisions that reduce crime in the future, then it will have to incarcerate fewer people. The savings for closing some prisons and not having to arrest so many people would be massive.64See id.; see also Jamie Siebrase, How 4 States Cut Their Criminal Justice Budgets Without Sacrificing Safety, Nat’l Conf. on State Legis., (2022), https://www.ncsl.org/research/civil-and-criminal-justice/how-4-states-cut-their-criminal-justice-budgets-without-sacrificing-safety-magazine2022.aspx [https://perma.cc/3ZFF-7V2F] (Outlining changes in Louisiana to reduce prison admissions, in Michigan to shorten jail stays, in Oregon to decrease recidivism by developing a transitional leave program, and in Missouri to reduce revocations of community supervision.). Thus, building a smarter criminal justice system could save money. We need to invest in a good process instead of continuing with the current, insufficient one.
Opponents will point out the current speed of the system and say that involving experts and community members into the decision-making process will slow down the processing of cases. Criminal courts handle a massive caseload of felonies and misdemeanors each year. Prosecutors will pick up files on the day of court, maybe talk to a witness or a police officer, and then make an offer. The snap decisions of prosecutors are part of how the system moves as quickly as it does and implementing a committee prosecution system would interfere with that speed.
However, the speed of the system is not an inherently good characteristic, and it should not be venerated or maintained. Slowing down the system to take account of expert opinion would make the system work better, be fairer, and have more just outcomes. Speed is not an inherent characteristic of a functional system. In fact, excessive speed is a characteristic of a non-functional system.
Additionally, this proposal is not necessarily inconsistent with timely decisions. Speed can be important when someone is in jail during the negotiation process or when a victim is waiting for a resolution. There are also rules about how quickly states must give someone a trial.65See Barker v. Wingo, 407 U.S. 514, 530 (1972) (establishing the following four factor balancing test to identify a speedy trial violation: “length of delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant.”). Thus, prosecutors’ offices would have to build a schedule for the committees so that they can meet in time to move their cases along.
A way to manage busy misdemeanor dockets could be to have the committee meet and decide on a general disposition or a range for the case. Attorneys would then go to court with the authority to deviate from that decision in some minor ways or negotiate anywhere inside of the range. Thus, if the defense attorney or a witness brings something new to the attorney’s attention, they can decide without having to call a new meeting of the committee.
For example, imagine if a court were to hear misdemeanors every week on Tuesday and Wednesday. Under the current system, a prosecutor reviews the files the night before and negotiates the cases with the defense attorneys on the court date. Under the proposed system, the committee would have a meeting on Monday to review the cases and decide about the appropriate sentences. The prosecutor would then go to court and make the committee’s offers with some authority to negotiate within a range.
Fast yet careful dispositions of cases are possible in a world of committee prosecution. This method simply requires the government to take expert and community opinion into account when it makes decisions – this process need not sacrifice speed for quality. If the schedule is organized correctly, a prosecutor’s office can do that quickly. If not, then they may have to start arresting fewer people and stop taking on as many cases.
Prosecutors are bound to say that the proposed reorganization is unnecessary, citing their status as elected officials who have a mandate from the people to pursue criminal justice policies and that they do a good job in that endeavor. They would contest the claim that they are disconnected from communities and that they lack the expertise to make these decisions.
However, as this article has explained, the foundation for their decisions is woefully inadequate. Attorneys lack the training to understand the causes and prevention of crime, and they do not come from the communities where the crime is actually happening; there are also underlying political motivations to be “tough on crime” instead of learning from experts about what works.
While prosecutors are likely to believe that what they are doing is correct, it is up to the electorate to vote for candidates who will pursue criminal justice policies that take expert opinion seriously.
A valid criticism of this idea relates back to a point made earlier in the article. Section II decried prosecutors as the wrong people to make criminal justice decisions in part because they do not share the racial and class make-up of the people they prosecute.66See supra Section II. A reader may see this proposal and say that the people in the proposed committee are likely to also be predominantly white. Thus, the proposal does not fix the very problem that it aims to solve.
One way to address this issue is to actively seek out and recruit diverse members for the committee. Experts who study criminology are also likely to be more attuned to the needs of the prosecuted group. They study what happens to someone when they are put into jail and, unlike prosecutors, think critically about what someone requires to be financially stable and free from addiction. Even if they do not match the racial make-up of the prosecuted, they still have skills and thought patterns that will make them more effective than prosecutors. While the proposed committee may not completely solve the problem of prosecutors’ lack of diversity, it is still a step in the right direction.
This article has made the case for a radical rearrangement of the current system of prosecution in the United States. Prosecutors’ offices should be required to include criminologists and other experts in group decision making. Such decisions will be more appropriate to the events and more likely to result in outcomes that reduce recidivism.
If prosecutors are unwilling to completely rearrange their offices and cede some of their power to experts, they would be prudent at least to increase the amount that they involve experts and community members. Set up occasional meetings with the local mental health and drug abuse professionals. Read criminology journals and use that information to formulate office policy. Consult with experts during negotiation about the most complicated cases. There are many improvements to be made that land short of the final goal of this article.
Most people want there to be less crime. The proposals in this article aim to help achieve that goal. There is a vast wealth of academic and practical expertise on what causes crime and the types of sentences that could reduce further criminal behavior. Instead of allowing prosecutors to act nearly unchecked, they should be made to utilize this expertise in the pursuit of crime reduction.