Prosecutors have a critical role to play to address mass incarceration and racial and ethnic disparities in case outcomes. But, they are overwhelmed and the system they work within is broken.

Every year, prosecutors across the country handle hundreds or even thousands of cases, transforming case management into an exercise in triage. Too often they make quick decisions based on rules of thumb and gut-level analyses, and are rarely afforded the luxury of consulting with supervisors or peers to gain insight into how their decisions fall within the wider universe of cases.

In a new paper, R Street senior fellow of criminal justice and civil liberties Lars Trautman argues that if this environment does not exacerbate mass incarceration or racial and ethnic disparities in case outcomes, at the very least, it is not conducive to remedying those issues, either. He therefore proposes that a simple system of checklists could help fix this critical component of our criminal justice system.

“Prosecutors have a critical role to play when it comes to innovating within a criminal justice system that over-relies on incarceration,” he said. “Today, minorities are overrepresented as arrestees, criminal defendants, pretrial detainees and incarcerated individuals—and conviction rates are higher and sentences longer for Black defendants.”

Accordingly, the introduction of a simple checklist at key decision points—charging, pretrial release and sentencing—could potentially force line prosecutors to slow down, consider additional mitigating or exculpatory factors, and attempt to place each decision and case into a broader systemic context. It could also improve the consistency of prosecution, and lead prosecutors would be able to harness the information from these checklists to make policy more iterative and adaptive.

The checklist would operate on two levels: First, it would force line prosecutors to pause briefly in the administration of justice and consider each decision in the context of larger criminal justice goals. Second, the information collected could inform office-wide policy, with lead prosecutors using it as part of a policy feedback loop to improve prosecutorial practices more broadly.

To view illustrative examples of checklists at each decision-making point, and to get a more detailed understanding of how and why this system could work, read “How a Checklist Could Improve Prosecution” here.

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