Public safety is typically not far from the minds of prosecutors. Its promotion and protection is generally a core priority and considered by those outside of prosecution to be an integral component of the job. Figuring out, let alone agreeing, how prosecutors can actually advance it, however? Now that can be significantly more challenging.
The traditional approach is straightforward and understandable, albeit misguided and ineffective. It essentially equates more with better: since prosecution exists, in part, to advance public safety, then more charges, convictions and incarceration must mean more public safety. At various points, members of the political class, media and general public have all reinforced this view for prosecutors by holding them accountable for all the costs and consequences of a lenient decision but not for those of a punitive one. Prosecutors have learned that there could be consequences for requesting release but not for detention. The risk averse strategy for prosecutors is clear: the safest way to approach the job is to appear tough.
While all of this may be appealing in its simplicity, it has not played out particularly well in practice. In large part, this is because appearances and posturing really are the only thing that many prosecutors can show the public—they lack the data to determine the truth of how their decisions are actually playing out. At the same time, the data that does exist in most places—crime rates—creates an overly narrow view of what constitutes public safety and ignores harder-to-measure harms, such as those created by justice system involvement. The aggregate effect tends to shortchange disadvantaged communities, especially minority ones. Taken in this light, the poor recidivism numbers plaguing most jurisdictions as well as depressing racial and ethnic disparities are not particularly surprising.
Consequently, prosecutors will never be able to reorient their offices to pursue public safety more successfully unless the flow of cases before them changes. In too many places, the reflexive prosecution of low-level offenses dooms prosecutors to a never-ending game of whac-a-mole in which the need to prosecute inconsequential transgressions prevents them from devoting more time to more serious offenses. This need for every prosecutor to split their attention among potentially hundreds of cases each year further hampers their ability to give each case the thorough consideration that justice and public safety demand. Reducing caseloads by removing these minor cases from the docket is therefore essential—a change that requires legislators to revisit criminal laws and prosecutors to alter their charging practices.
With the additional time this shift could bring, prosecutors should engage in more holistic and innovative decision-making. Along with the literal terms of a bail or sentencing recommendation, prosecutors ought to consider how collateral consequences could implicate public safety. In particular, a decision that makes it unduly difficult for a person to rehabilitate or places additional burdens on family members may fail to advance public safety goals by creating conditions conducive to crime. Similarly, traditional sanctions may not be the most effective; alternatives including diversion, treatment and specialty courts may do a better job at addressing the root causes of the behavior and thus prevent its reoccurrence. It comes down to taking a more forward-thinking approach to justice and public safety that evaluates each decision’s ability to contribute to a productive future rather than merely making a statement about a crime that has already occurred.
One of the keys to improving outcomes is to foster a better feedback loop for prosecutorial decisions. This requires significant improvements in data collection and analysis for most prosecutors’ offices; paper files and gut decisions simply cannot get the job done. Equally important, however, is a silencing or reorientation of the negative echo chamber in which politicians and other loud voices clamor to celebrate harsh prosecutorial decisions or crucify merciful ones. Prosecutors will only be able to sustain a more comprehensive and positive view of public safety if community leaders support them in that vision.
It is clear that public safety is central to the role of the prosecutor and the criminal justice system. Yet its treatment is too often superficial, tied to old views unsupported by evidence. It is time for prosecutors and policymakers to deliver to the communities they serve more than mere lip service to public safety. To do so, they will have to adopt a more future-oriented view of prosecution and holistic conception of public safety. A tall order to be sure, but one that will make their communities safer and more whole if they can fill it.