Leveraging discretion: Prosecutors’ role in justice reforms
Updated: Oct 19
The growing movement for policing reforms reached a pivotal moment in 2020, following the death of George Floyd. That summer saw a push for change regarding police officers’ use of force, especially concerning racially discriminatory practices. A variety of elected officials were forced to respond to this push with action, but most eyes looked toward prosecutors for substantive changes. “Traditionally, the public and the police viewed law enforcement and the prosecutor's office as one and the same;” while police officers make arrests, prosecutors are responsible for reinforcing those arrests with charges and convictions. However, as the public increasingly scrutinizes this symbiotic relationship, elected prosecutors are being pressured by their constituents for police reform. Many recent prosecutorial elections indicate that the public endorses reform-minded leaders looking to eliminate racial bias and over-incarceration. In districts that have historically had tough-on-crime policies, voters are now opting for candidates promising reform, such as Kim Foxx of Cook County (Chicago), Rachel Rollins of Suffolk County (Boston), and Satana DeBerry of Durham County (North Carolina).
Prosecutors hold the unique power of discretion, which enables them to pursue justice and rectify injustice. Progressive prosecutors are utilizing their discretion for thoughtful charging decisions, data transparency, restorative justice and bail reform. Further, they are seizing the unique opportunity that their close relationship with police departments provides to implement anti-bias trainings.
Both police officers and prosecutors have charging authority, but prosecutorial authority supersedes police charging decisions. Therefore, prosecutors can decline or modify a police officer’s charges. This broad discretion plays a crucial role in enabling prosecutors to act as a filter for racial injustice in policing. With proper training, prosecutors can learn to identify patterns and behaviors that reflect implicit bias. Then, they can exercise their discretion in recommending diversion, or lowering or dropping the charges resulting from police misconduct. This discretion may be used to benefit those suffering from mental disabilities and those who are economically disadvantaged, or it could be used to allow first-time offenders to maintain a clean criminal record. Plea bargaining may also be used in this way, offering a less severe outcome for cooperative defendants. However, this process can result in pressure on defendants to make unfavorable choices in the interest of efficiency if not used with the interest of all parties in mind.
Further, discretion can be used by progressive prosecutors to decriminalize historically discriminatory crimes such as drug addiction, prostitution and behavior related to mental illness. For example, Commonwealth Attorney Parisa Deghani-Taftiof Arlington, Virginia has adopted a policy of not prosecuting, or nolle prosequi, for marijuana charges in her district. Additionally, she has taken on a data transparency project to elucidate racial disparities in arrests and prosecutions.
Another important reform-oriented exercise of prosecutorial power is police accountability. Often, a substantial public outcry has been required to convince prosecutors to take action against police officers accused of misconduct. While this unfortunate reality is likely due to the traditionally close working relationship between police officers and prosecutors and prosecutors’ reliance on police for investigations, evidence and testimony, progressive prosecutors have implemented police accountability as a tool to enforce better policing. This approach has also gained public support, as evidenced by Kim Foxx ousting her predecessor in pledging to pursue justice for Laquan McDonald, a teenager murdered by Officer Jason Van Dyke, when the previous prosecutor would not.
Progressive prosecutors have also implemented bail reform policies to counteract disparate impacts of policing and criminal justice. High cash bails historically have limited options for indigent defendants and caused them to serve months in jail, only to be released when the case cannot be proven, simply because they could not afford bail. Bail reform encourages that bail only be set when necessary due to case-specific circumstances and in an amount that is feasible or that noncash bail alternatives be implemented.
While there is much left to desire in making the criminal legal system fairer, it is the duty of prosecutors to exercise their power in ways that do not enable nor reinforce biased policing. Additionally, with public opinion moving away from “tough-on-crime” platforms in favor of reform-oriented ones, it is in prosecutors’ best political interests to take on these policies.