Policy Studies Criminal Justice and Civil Liberties

How a checklist could improve prosecution

July 23, 2020

Key Points

High caseloads, broad individual discretion, and limited training opportunities mean that prosecution is all too often a series of quick decisions based on rules of thumb and gut-level analyses of cases that can lead to disparate results. 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.

Prosecutors need to adopt new strategies to guide these decisions and nudge outcomes in a more fair and consistent direction. The introduction of a simple checklist at key decisions – charging, pretrial release, and sentencing recommendations – 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.

This kind of checklist could improve the consistency of prosecution, encourage prosecutors to exercise greater restraint, and help reduce the problems of over-incarceration and racial disparities. Further, lead prosecutors would be able to harness the information from these checklists to make policy more iterative and adaptive.

A prosecutor decision checklist would operate at 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 them as part of a policy feedback loop to improve prosecutorial practices more broadly.

Press release: How a checklist could improve prosecution

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