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Prosecutorial consistency in process

One of the biggest challenges researchers face when analyzing the effectiveness of the justice system is visibility into the world of the District Attorney. While prosecutors are given broad discretionary power, there are very few requirements regarding tracking how they use it and to what end.

However, in December 2012 the Vera Institute published the results of its two-year research project, Anatomy of Discretion, shedding light on this topic. Supported by the National Institute of Justice, the project sought to measure the impact of prosecutorial decisions on case outcomes. Specifically, researchers studied what factors weighed into prosecutorial decision-making.

The study found that while strength of the evidence is a primary consideration,

"...prosecutors were guided by an overarching philosophy of doing justice -- or 'the right thing.' Most participants described justice as a balance between the community's public safety concerns and the imperative to treat defendants fairly."

While the study showed prosecutors valued a high level of consistency in process, thus ensuring each case is approached with the same underlying principles, there was wide variation in outcomes for similar cases. The researchers suggest this is partly a result of external restricting factors like courtroom shortages or lack of police department investigation support, and partly a result of individual prosecutors valuing factors related to the defendant, victim, and the community differently.

These prosecutorial differences may seem inequitable, but as Judge Theodore A. McKee discusses, differential outcomes can be a good thing -- if they are driven by individual considerations of fairness and are devoid of bias. Yet, how will we know that individual factors are considered consistently to ensure fairness?

Anatomy of Discretion provides a preliminary foundation for developing transparency into prosecutorial practices. However, public accessibility to data regarding prosecutorial policy and practice would provide needed accountability and a more nuanced understanding of justice system processes, both necessary for a successful discussion about criminal justice policy.

To that end, on January 23, at 1:00 -- 3:00 pm, the National Council on Crime and Delinquency (NCCD) is hosting a panel discussion on The Role of the 21st Century Prosecutor, in San Francisco, CA. The discussion will focus on the role and challenges of a modern prosecutor in the social justice community, and is part of NCCD's policy and practice series.

Speakers include U.S. Attorney Melinda Haag, San Francisco District Attorney George Gascón, and Philadelphia District Attorney Seth Williams. These criminal justice leaders set a promising example for other stakeholders in the system. Only with truly transparent dialogue, can we examine and correct inequities and inefficiencies in our justice system.

Keywords: prosecutors, Selena Teji

Posted in Blog, Sentencing

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