Prosecution tends to be a highly balkanized affair and this fragmentation of authority and culture strikes at every level. At the top, each county and city has its own lead prosecutor charged with managing prosecutorial efforts in that jurisdiction. These lead prosecutors in turn delegate the implementation of policy – if not its outright creation in some regards – to supervisors in each unit or courthouse. And, finally, every line prosecutor must make myriad decisions with often little training and official policies that do not come anywhere close to providing the answer in every case. With so much potential for variation, it is no small wonder that “equal justice under the law” remains aspirational throughout the country.
High caseloads and a lack of relevant data exacerbate these problems. Line prosecutors frequently handle hundreds or even over a thousand cases a year, transforming case management into an exercise in triage. Consulting with a supervisor or peer is a luxury that many cannot afford on a regular basis. At the same time, information relating to prosecutorial decisions that might provide insight into how other prosecutors handled similar cases is nonexistent and outcome data is equally rare. Each line prosecutor becomes her own case processing island working to stem an ever-rising tide of cases.
The result is a system of quick decisions based on rules of thumb and gut-level analyses of cases. Line prosecutors generally need not articulate in great detail—if at all—why they made any particular decision and may have only the vaguest sense of where each case falls within the wider universe of cases. This encourages risk avoidant behaviors and conceals potential implicit bias or other unhealthy rationales. Meanwhile, at the office level, leaders may not know what decisions their prosecutors are making, let alone why they are making them. If this environment does not exacerbate racial and ethnic disparities or mass incarceration, at the very least, it is not conducive to remedying those issues either.
This is a huge problem. The United States incarcerates a disproportionate number of its people and keeps nearly 7 million under some form of correctional supervision at any given time. These burdens are not shared equally by any stretch. Minorities are over-represented as arrestees, criminal defendants, pretrial detainees and incarcerated individuals. Likewise, conviction rates are higher and sentences longer for Black defendants.
Prosecutors can and must address these inequities, but this requires innovative strategies. A few offices have increased training relating to implicit bias, introduced reforms to help eliminate unnecessary incarcerations and reworked policy to be more data driven. While these represent necessary and beneficial initiatives, the present study suggests complementing them by experimenting with methods to alter the process and psychology of prosecutorial decisions.
Specifically, it recommends exploring the introduction of a uniform prosecutor decision checklist to guide key prosecutorial decisions. Such a device 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. Lead prosecutors would be able to harness this information to make policy more iterative and adaptive. Taken altogether, this could improve the consistency of prosecution, encourage prosecutors to exercise greater restraint, and help reduce the problems of over-incarceration and racial disparities.
