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The Power of a Prosecutor: New Measures for Evaluating Prosecutorial Success

The Power of a Prosecutor: New Measures for Evaluating Prosecutorial Success

Carly Orozco

A prosecutor in the United States, whether operating at the federal, state, or local level, is responsible for holding those who commit criminal offenses accountable by acting as a “minister of justice.”[1] Prosecutors are the arm that enforce the laws of the legislature.[2] They have both great responsibility and great discretion to decide whether and what to prosecute.[3] With great responsibility and discretion, however, accountability must follow.

The most widely used measure for evaluating a prosecutor’s success is a prosecutor’s number of convictions.[4] While this may be a good measure of a prosecutor’s skill as a litigator, it proves inconsequential when discussing whether those convictions actually promote a safer community.[5] Currently, no standard review process exists by which to evaluate prosecutors for effectiveness.[6] Prosecutors are tasked with serving their community by ensuring there is justice for those who have been wronged by the actions of others and enforcing the laws we all must follow.[7] However, emphasizing incarceration and harsh sentencing over more restorative measures that focus on rehabilitation in fact have an adverse effect.[8] There is a movement away from pushing for incarceration with little to no regard for whether that is the best method for ultimate rehabilitation, or for whether it is truly making the community safer.[9]

Prosecutors have broad discretion to decide when to prosecute, and perhaps more importantly, when not to prosecute.[10] Thus, prosecutors should be front and center in the discussion and implementation of criminal justice reform. However, for prosecutors to understand how their choices impact the safety and crime rates in the communities they serve, a realistic measure must be developed, and this measure must be applicable now.[11]

Creating a measure that can be applied by third parties can also provide for greater accountability.[12] For citizens and governments to evaluate whether prosecutors are acting in the most effective manner, there must be a standard by which to evaluate whether a prosecutor’s actions are improving the particular community they serve by making it safer. This Note intends to create and demonstrate a measure by which to evaluate prosecutors that is based in the impact these attorneys have on the communities they serve, and whether their prosecutorial methods are leading to positive outcomes.

The field of criminal justice is ever-changing, from the history of the “Tough on Crime” movement to the advent of “Smart on Crime” and restorative justice.[13] In the wake of understanding the impact of the “Tough on Crime” campaign, a distinct movement toward restorative justice and criminal justice reform is rising.[14] Studies show that the “Tough on Crime” paradigm did not result in a decrease in crime rates,[15] but moving past it is difficult when leaders fear that being seen as “Soft on Crime” will hurt their chances of election.[16] Currently, however, District Attorneys and State’s Attorneys all over the country are running on platforms of progressive prosecution and criminal justice reform.[17] While this is promising, unfortunately not everyone delivers once in office.[18] In order to hold prosecutors’ offices accountable for the impact they have on their communities, a standard measure must be developed that can be applied to evaluate the impact of a prosecutor’s actions. This measure is vital because it will allow offices themselves to stay informed about how their actions impact their community so that when necessary, they can alter their actions accordingly.[19] Just as importantly, it will also provide a mechanism for communities and third parties to hold their local offices accountable.[20]

This Note will discuss the history of prosecutorial discretion and the current movement toward criminal justice reform, while proposing a new measure to evaluate prosecutors and District Attorney’s offices. Part I will focus on the history and impact of “Tough on Crime,” the problems that paradigm presents, and the movement towards reform. Part II will discuss the best objective factors to evaluate prosecutors by and explain a viable measure for evaluating prosecutorial success under this new paradigm. Part III will discuss how this measure will best assist prosecutors in upholding to their expectations as effective ministers of justice.

[1]MODEL RULES OF PROF’L CONDUCT r. 3.8 cmt. 1 (AM. BAR ASS’N 2016).

[2]See Criminal Justice Standards for the Prosecution Function § 3-1.2(a)–(f) (2015) (describing a prosecutor’s function as “an administrator of justice” with the primary duty to “seek justice within the bounds of the law”).

[3]Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

[4]See Eric Rasmusen et al., Convictions Versus Conviction Rates: The Prosecutor’s Choice, 11 Am. L. & Econ. Rev. 47, 48 (2009) (describing the emphasis put on conviction rates when discussing the success of a prosecutor).

[5]Elaine R. Jones, The Failure of the Get Tough Crime Policy, 20 U. DAYTON L. REV. 803, 804 (1995).

[6]M. Elaine Nugent-Borakove et al., American Prosecutors Research Institute, Exploring the Feasibility and Efficacy of Performance Measures in Prosecution and their Application to Community Prosecution 1­–2 (2009).

[7]LAUREN-BROOKEEISEN ET AL.,BRENNAN CENTER FOR JUSTICE, FEDERAL PROSECUTION FOR THE 21ST CENTURY 15 (2014).

[8]Beth A. Colgan, Teaching a Prisoner to Fish: Getting Tough on Crime by Preparing Prisoners to Reenter Society, 5 SEATTLE J. SOC. JUST. 293, 293 (2006).

[9]LAUREN-BROOKEEISEN ET AL.,BRENNAN CENTER FOR JUSTICE, FEDERAL PROSECUTION FOR THE 21ST CENTURY 15 (2014).

[10]Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

[11]Katherine K. Moy, et. al., Rate My District Attorney: Toward a Scorecard for Prosecutors’ Offices 9 (2018).

[12]Id. at 28.

[13]Arit John, A Timeline of the Rise and Fall of “Tough on Crime” Drug Sentencing,Atlantic, (Apr. 22, 2014), https://www.theatlantic.com/politics/archive/2014/04/a-timeline-of-the-rise-and-fall-of-tough-on-crime-drug-sentencing/360983/.

[14]Colgan, supra note 8, at 5.

[15]JAMES P. LYNCH & WILLIAM J. SABOL, DID GETTING TOUGH ON CRIME PAY?CRIME POLICY REPORT NO.1, THE URBAN INST. 6 (2012), https://www.urban.org/sites/default/files/publication/70411/307337-Did-Getting-Tough-on-Crime-Pay-.pdf.

[16]Steven A. Krieger, Do Tough on Crime Politicians Win More Elections – An Empirical Analysis of California State Legislators from 1992 to 2000, 45 Creighton L. REV. 131 (2011); Keith Swisher, Pro-Prosecution Judges: Tough on Crime, Soft on Strategy, Ripe for Disqualification, 52 Ariz. L. Rev. 317, 366 (2010).

[17]Jessica Pishko, “I’ve Read the New Jim Crow…” How to Tell if a Prosecutor is Only Pretending to Be a Criminal Justice Reformer, Slate (Apr. 13, 2017, 12:43 PM), http://www.slate.com/articles/news_and_politics/trials_and_error/2017/04/how_to_tell_if_a_prosecutor_is_only_pretending_to_be_a_criminal_justice.html.

[18]Id.

[19]Katherine K. Moy, et. al.,Rate My District Attorney: Toward a Scorecard for Prosecutors’ Offices 9 (2018).

[20]Id. at 28.

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