Promoting effective prosecution

Prosecutors should be required to base their decisions on practices that are proven to actually reduce crime and adhere to the highest ethical standards without bias.

To this end, the Department of Justice should:

• Publish district data concerning the U.S. Attorneys’ compliance with the Smart on Crime Initiative, the Department of Justice initiative to conduct a “comprehensive review of the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and . . . more efficiently,” and charging in drug cases;
• Issue guidance on reducing the impact of implicit racial bias in prosecutorial decision-making process;
• Review case selection and charging practices to ensure that only the most serious offenses with a substantial federal interest are being pursued;
• Adopt federal guidelines that advise all prosecutors’ offices on best practices to guide prosecutorial discretion, reduce reliance on incarceration, and ameliorate collateral consequences, including internal guidelines that help determine when prosecution should be pursued and a requirement that prosecutors produce internal documents justifying their decision to prosecute.
• Adopt federal guidelines that advise all prosecutors’ offices on best practices for incorporating diversion programs into their offices’ work.

Local governments, prosecutors’ offices, and the federal and state legislatures should encourage effective prosecutorial practices including:

• Prioritizing the prosecution of more serious offenses;
• Adopting diversion programs and restorative justice initiatives;
• Diverting individuals with mental health issues and substance abuse issues to appropriate treatment programs;
• Creating performance review standards that reward diversion and the removal of racial inequities, and prioritize the prosecution of serious and violent offenses;
• Raising the charging standard by requiring that prosecutors consider the social costs of mass incarceration when determining whether it is the “interests of justice” to charge for a case;
• Focusing on the monitoring and training of inexperienced prosecutors, including creating internal guidelines to channel discretion and requiring written justification for decisions to prosecute;
• Using recidivism rates and other metrics to evaluate prosecutor performance rather than the number of prosecutions or the rate of conviction;
• Eliminating the practice of adjudicating youth as adults;
• Promoting a culture for courageous leadership to thrive.

The American Bar Association should revise Standard 3-3.9, which provides guidelines for prosecutors to dispose of a pending matter, to affirmatively encourage prosecutors to exercise discretion not to prosecute less serious acts.

In addition to pressuring government officials to support the above actions, advocates, activists, cultural workers and artists, and civil society should invest time and resources to engage in prosecutorial elections, highlighting the power of local prosecutors and increasing their accountability to the public.