Procedural Justice and the Impact of Prosecutorial Discretion

Procedural Justice and the Impact of Prosecutorial Discretion Paige Styler Deputy Regional Attorney Manager Milwaukee Trial Office, Wisconsin State Public Defender Presented to Tommy G. Thompson Center on Public Leadership: Criminal Justice Reform April 26, 2018 Kelli Thompson, Wisconsin State Public Defender 17 South Fairchild, 5th Floor P.O. Box 7923 Madison, WI 53707-7923 Phone: 608.266.0087/Fax: 608.267.0584 www.wispd.org @WisconsinSPD

Procedural Justice and the Impact of Prosecutorial Discretion In Wisconsin, as in most jurisdictions, prosecutors have broad discretion regarding the most important decisions that follow a referral from law enforcement for possible criminal charges. Without question, exercise of this discretion has an immense impact on the accused and our communities as a whole. This paper approaches the topic of prosecutorial discretion from the perspective of its impact on procedural justice in the courtroom. This paper will look at the influence and impact that prosecutorial discretion can have on procedural justice. Procedural Justice Procedural justice, also known as procedural fairness, is the concept that the perception of how a person is treated during a case is more strongly correlated to a feeling of fairness than the outcome of that case. Research from Yale Law School Professor Tom Tyler identifies 5 critical aspects of procedural justice: 1) a feeling that your story has been heard; 2) being treated with dignity and respect; 3) perceiving that the process is neutral and unbiased; 4) an understanding of how the process works; and 5) perceiving that your personal situation is of interest to system 1 actors. All criminal justice system actors have a role in ensuring procedural justice is followed. For law enforcement, prosecutors, defense counsel, judges, and all others who have contact with people who are likely at a low point in their lives or who have suffered a traumatic experience, a goal and responsibility of all officers of the court is to ensure that the process allows individuals to be heard and treated with respect. Procedural justice is a fundamental necessity for ensuring the rule of law. If people involved in the criminal justice system, whether defendants, victims, witnesses, or family members, believe that the process has been fair, they are more likely to feel that justice has been done. There is little debate on the importance of procedural justice among criminal justice professionals. The issue becomes, as it so often does when dealing in the theoretical, how to practically implement the concepts of procedural justice in our day-to-day work. Prosecutorial Decision Points Key to Procedural Justice The role of the prosecutor in the American legal system has been defined by hundreds of years of precedent and perceptions by society that do not necessarily match the commonly accepted scope 2 of prosecutor best practices as defined by the American Bar Association (ABA). While the prosecutor should be a zealous advocate, their primary duty...is to seek justice within the bounds of the law, not merely to convict. In addition, the prosecutor is not merely a 1 Tyler, Tom R. Why People Obey the Law. New Haven[etc.]: Yale University Press, 1990. 2 American Bar Association. Criminal Justice Standards. Washington, DC: American Bar Association, Criminal Justice Section, 1990. 2

case-processor but also a problem-solver responsible for considering broad goals of the criminal justice system. Moreover, the prosecutor should seek to reform and improve the administration of criminal justice, and when inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, the prosecutor should stimulate and support 3 efforts for remedial action. With these definitions of the duties of the prosecutor come both implicit and explicit goals of ensuring that procedural justice is a cornerstone of their practice. Other standards that relate to the principles of procedural justice also involve the prosecutor s heightened duty of candor; prohibition against improper bias; conflicts of interest; diligence, promptness, and punctuality; and civility with courts, opposing counsel, and others. In nearly every jurisdiction in the country, discretion as to whether or not to charge in individual cases rests almost exclusively with the prosecutor. This prosecutorial discretion is discussed in two other ABA standards. The prosecutor s office should exercise sound discretion and 4 independent judgment in the performance of the prosecution function. [The prosecutor should exercise] discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and 5 defendants. Again, these standards are best practices and are impacted by practical limitations. This paper reviews the most significant points in the process at which prosecutor is able to exercise sole discretion and the importance of considering the impact of their decisions. Charging Decisions Prosecutors have great discretion whether to file criminal charges in response to a reported incident or referral from law enforcement. There are some checks on this discretion: for example, 6 an ethical rule prohibits filing charges that the prosecutor does not expect to be able to prove. This rule supports the fundamental presumption of innocence that applies in all criminal cases and the corresponding requirement that proof beyond a reasonable doubt is required for a criminal conviction. The public and policymakers also expect that certain offenses will be vigorously prosecuted, such as homicide and sexual offenses. However, for many offenses, including most misdemeanors, the prosecutor has both legal and practical discretion whether to file a criminal charge. 3 American Bar Association. Criminal Justice Standards 3-1.2(f) Washington, DC: American Bar Association, Criminal Justice Section, 1990. 4 American Bar Association. Criminal Justice Standards 3-1.2(a) Washington, DC: American Bar Association, Criminal Justice Section, 1990. 5 American Bar Association. Criminal Justice Standards 3-1.2(b) Washington, DC: American Bar Association, Criminal Justice Section, 1990. 6 American Bar Association. Criminal Justice Standards. Washington, DC: American Bar Association, Criminal Justice Section, 1990. 3

The consequences of this discretion are substantial. A defendant in a criminal case faces possible incarceration if convicted, as well as monetary fines, community supervision, and civil consequences of conviction. Even if no conviction results, the filing of any criminal charges in Wisconsin results in a publicly-accessible computerized record in the searchable Wisconsin Circuit Court Access database. This record may have adverse effects on the defendant in areas such as employment or housing. Defendants also face the anxiety of a pending charge and the need for legal representation. In addition to deciding whether to file charges, prosecutors also decide which charges and how many charges to file. The broad discretion in this area includes the ability to charge multiple related charges in connection with a single incident. Take, for example, a person who steals a can of gas from a residential garage. The person may be charged with burglary, theft, and criminal trespass: one prosecutor may file a single charge of misdemeanor theft, while another might file three charges including the felony burglary charge. Pretrial Release Decisions One of the most significant decisions, after a charge is filed, is whether to release the defendant before trial (and if so, under what conditions). Research shows that even a brief period of incarceration is so disruptive of pro-social activities such as employment and family 7 relationships that the incarceration itself can increase the risk of recidivism. Although the court makes the ultimate decision on pretrial release, the prosecutor s recommendations and the nature of the charges that the prosecutor decided to file can greatly influence the release decision. The prosecutor has discretion to ask for a cash bond, which for many indigent defendants means an extended period of time in jail. Also, even if the prosecutor agrees to a signature bond, the prosecutor may request a number of conditions that greatly restrict the defendant's conduct. Any violation of court-ordered conditions, failure to appear in court, or commission of a crime while in release status can form the basis for a criminal charge of bail jumping. The prosecutor retains broad discretion regarding whether to pursue a formal charge of bail jumping for each alleged violation of conditions of release. Before issuing charges, a prosecutor also has the ability to release an individual from custody and order them in for future proceedings. This process allows for a more in-depth review before charges are issued and a potential for a pre-charging conference at which a disposition can be reached before the formal filing of charges. Negotiations Decisions A third area of broad discretion comprises both the decision on whether to negotiate with the defendant (or, in the precharging setting, with the suspect) and the decision regarding the contents of any proposed settlement. Negotiations may occur before charging, although they are much more common after charges have been filed. Negotiations may encompass the reduction of charges, the dismissal of some or all charges, and/or the recommended sentence. 7 The Hidden Costs of Pretrial Detention [Electronic Resource]. United States: Laura and John Arnold Foundation, 2013. http://www.arnoldfoundation.org/wp-content/uploads/2014/02/ljaf_report_hidden-costs_fnl.pdf 4

Courts have the independent authority to decide upon the appropriate sentence, but in practice the prosecutor s recommendation is very influential. Because the sentencing range is determined by the number and nature of charges, the discretion to negotiate expands upon the previously-discussed charging discretion. Because pretrial incarceration can extend longer than the likely sentence in some cases, the decision on pretrial release can provide the prosecutor with leverage in negotiations: a defendant may elect to plead guilty simply because it is the quickest way out of jail. Negotiations often have the positive aspects of resolving cases efficiently. Through negotiations with a prosecutor, a defendant can bring forward mitigating factors related both to the charged offense(s) and to the defendant s character. Examples of these factors are witness statements not originally available to the prosecutor and the defendant s pro-social conduct pending trial, such as completing a treatment program, paying restitution, or reinstating driving privileges. However, negotiations can also be distorted by the number of overlapping charges filed or by strict time deadlines that prevent defendants from challenging violations of constitutional rights. Part of the broad discretion in this area is the discretion to use the defendant s fear of a harsh sentence as leverage to induce a guilty plea in a weak case, characterized by either weak evidence of the defendant s guilt or serious doubts about the legality of the police investigative techniques. Sentencing Recommendations Prosecutors have broad discretion regarding sentence recommendations, regardless of whether the case is resolved by a plea or a trial. In practice, the overwhelming majority of cases are resolved by a plea agreement or a dismissal, rather than by a trial. One significant reason for the low number of trials is that the prosecutor can (and often will) recommend a harsher sentence if 8 the defendant is convicted at trial. A trial may also result in a higher maximum sentence than the maximum that the defendant would face as a result of a negotiated agreement to reduce and/or dismiss some charges Wisconsin, unlike some states, does not have sentencing guidelines for most crimes. Instead, the court is generally free to impose a maximum sentence of imprisonment, a sentence of no imprisonment, or anything in between. This discretionary sentencing structure adds to the controlling importance of the prosecutor s recommendation. While Wisconsin has been more resistant to mandatory minimum penalties than other states, there are still a significant number of crimes that carry a mandatory minimum sentence requirement. When a mandatory sentence applies, the prosecutor has discretion to push for this sentence or to offer a negotiated settlement for a lesser charge. This discretion shifts sentencing power away from a judge (at the end of a criminal case) to a prosecutor (at the beginning of the case and throughout negotiations). 8 https://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html 5

Factors Affecting Prosecutorial Discretion Diversion Alternatives Prosecutors in many Wisconsin counties participate in collaborative reform activities, often as part of a multi-disciplinary justice coordinating council. Many counties have treatment courts that emphasize treatment and recovery, instead of punishment, for individuals with severe drug, alcohol, or mental health problems. Some counties also have implemented formal precharge or post-charge diversion programs that follow evidence-based practices. Despite these encouraging trends, Wisconsin continues to have a relatively high rate of incarceration and an extremely high degree of racial disparity reflected in its arrest and incarceration rates. Prosecutorial discretion is one factor that may impact this incarceration rate and the accompanying racial disparity, as are the discretionary decisions made at other phases of the justice system. No individual or agency in the justice system is immune from the effects of implicit bias. The use of validated risk assessments can assist in guiding discretion, and several Wisconsin counties are administering assessments shortly after arrest and, in at least one county, before police make a decision whether or not to arrest. These assessment instruments do not replace prosecutorial discretion, but can improve decision making by providing pertinent information regarding the risk level and the needs of individuals in the justice system. Informed decisions take time Prosecutors do not have a lot of resources to make informed decisions. They are typically presented with a high number of law enforcement referrals relating to individuals held in jail pending an initial court hearing. Often these referrals are submitted just before a hearing. This volume of referrals combined with the court schedules and strict timelines for initial court appearances limit the information available to prosecutors when they make initial charging decisions. Although some counties have precharge diversion programs, the easier course for other counties is to issue charges on the basis of incomplete information and without serious consideration of potential alternatives. A decision to charge is, unfortunately, often a default response in this situation. What appears as an endless string of decision making for prosecutors also works against optimal decision making. The concept of decision fatigue is believed to set in after an individual faces a long string of strained decision making. Decision fatigue impacts the ability to make 9 well-reasoned decisions when difficult decisions are persistently required to be made. The default may be to follow a predefined set of charging practices (adopted either by the office or by the individual prosecutor) that do not look at the full range of potential options or at all the pertinent information. Among other problematic aspects of this practice is that prosecutors may look upon referred individuals primarily as statistics or case types, rather than as individuals. Perspective of law enforcement, alleged victims, and policymakers Because prosecutors work most closely with law enforcement and with alleged victims, there is a natural tendency to exercise discretion in ways perceived as favorable to their interests. When a matter is referred to a prosecutor, there is ordinarily an explicit or implicit request from law 9 https://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html 6

enforcement and/or from an alleged victim to issue charges. The ABA standards state that the prosecutor generally serves the public and not any particular government agency, law 10 enforcement officer or unit, witness or victim. Similarly, prosecutors may pursue a conviction, rather than give fair consideration to other means of resolving a case, because of the stated belief that law enforcement, the public, or the alleged victim desires that outcome. This perspective contributes to formal charging and conviction as default prosecutorial goals, which are not optimal for promoting public safety. Jurisdictions that take a broader view of justice are successfully implementing evidence-based practices, such as treatment courts that respond to drug addiction and alcohol abuse as medical impairments, rather than purely as criminal matters requiring punishment. Prosecutors are certainly not solely responsible for this punitive focus. For decades, policymakers have enacted new criminal statutes and increased penalties. Funding increases for prisons and jails continue to be among the most significant expenditures in the Wisconsin state 11 budget. This trend has been the rule nationally, not just in Wisconsin. This social and political environment influences prosecutorial discretion and policies. Wisconsin has significantly increased funding for evidence-based programs such as treatment courts, although the amount remains a fraction of the budget for incarceration. Charging and punishment focus is drain on resources The United States incarcerates a higher percentage of its population than any other developed country. However, despite our substantial investments in prisons and jails, we do not enjoy greater public safety. Instead, these expenditures drain resources that states and local communities could use more efficiently and effectively for prevention efforts and for evidence-based treatment programs. At the level of an individual prosecutor or prosecutor s office, the emphasis on punishment can perpetuate itself by contributing to a high volume of cases and court appearances. This high caseload leaves little time for prosecutors to learn about the individual characteristics and potential for rehabilitation of defendants or to adopt innovative, evidence-based practices. Furthermore, when prosecutors encounter defendants only when they have cause to charge them with a crime, they may naturally take a pessimistic view toward the prospects of successful diversion from the justice system. After all, they are seeing individuals who have seemingly failed to follow the rules, as opposed to seeing successful individuals. Increasing punitive 12 measures have failed to reduce criminal recidivism 10 American Bar Association. Criminal Justice Standards. Washington, DC: American Bar Association, Criminal Justice Section, 1990. 11 Inside Wisconsin Corrections: Inmate Numbers Down, But Starting to Rise Again, 85 Wis. Taxpayer 1, 4 (Apr. 2017) 12 Andrews, D.A., and James Bonta. Rehabilitating Criminal Justice Policy and Practice. Psychology, Public Policy, and Law. 2010, Vol. 16, No. 1, 39 55. 7

Resource Limitations Additional resources are needed for prosecutors to allow time for a more thorough review of law enforcement referrals before issuing charges. In fact, all partners in the justice system could make use of additional resources. Added resources could give prosecutors the opportunity to better inform their decision making, whether in charging, pretrial release, negotiations, and sentencing. Efforts to ensure that victims rights are appropriately considered as part of procedural justice ring hollow without adequate prosecutorial resources. Evidence-based decision-making teaches us that every single interaction with the justice system is an opportunity to reduce harm. Adoption of this mindset by all criminal justice partners -- including prosecutors -- has the ability to transform the job of the prosecutor, the lives of victims and the accused, and local communities. Role of the Criminal Justice System The justice system is largely tasked, and ill-equipped to deal with, taking care of mental health and addiction issues. Medical conditions, whether they stem from an addiction or a mental health issue, are often the root cause of criminal behaviors or a potential barrier to successful rehabilitation. The justice system is not the most effective at addressing such issues. In fact, the criminal justice system was not designed nor equipped to be a primary medical provider. System-wide, there has to be an agreement that mental and physical health conditions are best addressed by medical providers, rather than by our jails and prisons. Although the benefits of implementing evidence-based practices are best served by a collaborative team, the prosecutor is uniquely well positioned to identify issues such as mental health and addiction needs that may qualify an individual for treatment and services rather than formal charging and sentencing. Conclusions Prosecutorial discretion is exercised at a number of decision points ranging from charging decisions to sentencing recommendations. Moreover, the consequences and outcomes of this discretion have a substantial impact on both the individual in contact with the justice system and the community as a whole. Accordingly, there are a number of measures -- both systematic and operational -- worthy of further examination to determine their value in a local justice system. In the normal course of their job, prosecutors see the effects of violence and the terrible choices of individuals. Constantly dealing with tragedies and seeing many situations as lose-lose can be emotionally draining. In fact, the legal profession is prone to a high rate of disorders. Extending the trauma-informed care model beyond victims to prosecutors and to others working in the justice system can assist these professionals in appropriately dealing with the consequences of constant trauma. Defense attorneys often have a vantage point to see the positive impact of effective decision making as witnesses to the positive steps their clients have taken in order to become productive citizens. Prosecutors, however, often do not have an opportunity to see the affirming outcomes of their decision making. As a result, prosecutors are more inclined to see individuals through a 8

lens clouded by bad behaviors. It would be beneficial for prosecutors to see the achievements of defendants and of persons diverted from formal charging, better enabling the prosecutors to adopt a view of the typical defendant as a real person who can break free of past behaviors. Bedrock principles of our criminal justice system include, for those suspected of or alleged to have committed a crime, procedural fairness, the presumption of innocence, and the opportunity to be heard. As discussed above, prosecutorial discretion is a strong factor affecting our criminal justice system and its ability to meet these fundamental principles established with the founding of our nation. 9