Setting the Record Straight on the Current and Future Role of Prosecutors

Wyandotte County, Kansas District Attorney Mark Dupree speaking to a reporter. The role of prosecutors have evolved beyond the traditional model.

Wyandotte County, Kansas District Attorney Mark Dupree speaking to a reporter. The role of prosecutors have evolved beyond the traditional model. AP PHOTO/JOHN HANNA

 

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COMMENTARY | The job of a prosecutor is right in the job title: to prosecute. But prosecutors’ roles have grown more complex over time as they’ve worked to fulfill the many dimensions of justice that their jobs demand.

For most people, the image that comes to mind of a prosecutor is an impassioned lawyer in a stately courtroom questioning witnesses and advocating before a jury that the accused should be found guilty beyond a reasonable doubt. While this is a key part of a prosecutor’s job, the role and purpose of today’s prosecutors extend far beyond that traditional model. In fact, much of what prosecutors do falls completely outside of charging and prosecuting cases.

Many of the intricacies of being a prosecutor are captured in a three-minute video called “The Role of the Prosecutor” created by the National District Attorneys Association (NDAA), a non-partisan, non-profit member-based organization of over 5,000 prosecutors. The goal of the video is to help outline a more dynamic and accurate definition of the job. But if role clarity was a challenge before 2020, one can imagine how this year’s protests and calls for system transformation have heightened the importance of understanding the intricacies of the prosecutor’s role, their baseline practices and what responsibilities might better be filled by another agency. In order to better inform the very active debate about how we should fund and improve our criminal legal system, we must all strive to better understand these more nuanced aspects.  

First, it’s important to point out that one role prosecutors’ play—perhaps counterintuitively—is to decline to prosecute cases like arrests for lower-level crimes, such as fare evasion. Prosecutors are a gatekeeper asking the tough question: not just can the case be charged, but should the case be charged?

Fewer than 5% of criminal cases charged in local and state courts go to trial. Meaning much of a prosecutor’s role in those cases is negotiating behind the scenes with defense lawyers and their supervisors to arrive at a suitable plea deal. There may not be a formula or set of guidelines for those decisions, so prosecutors weigh available information about each individual’s prior criminal cases, housing stability, substance use challenges and other factors that paint a picture of the person in order to make an educated guess about how the public can best be protected.

Historically, the choices in crafting these resolutions were jail or nothing. Over the last decade, prosecutors have partnered with court- or community-based programs like community service engagements or restorative justice programs that offer alternative sanctions or operated their own programs. Similarly, specialty courts for drug treatment and mental health also provide tailored, need-based responses that reduce incarceration rates. Prosecutors’ participation in the planning and operation of these efforts is critical as they can block participants' access to these programs or make participation too burdensome or risky.

The discretion in selecting cases allows prosecutors to control the volume coming in and out of the system and prioritize resources on offenses that cause the most harm in the community. This keeps thousands of cases out of the system and allows them to be better addressed by other professionals. But it’s complicated: this discretion and authority has also drawn criticism within discussions of police accountability when prosecutors fail to investigate or prosecute cases fully involving misconduct by officers.

Lastly, prosecutors must also keep an eye on both past and future cases. Looking back, they ensure that resolved cases are consistent with the law. Past cases also send a message to the public about how different groups may be impacted disparately based on race or other factors. Looking forward, prosecutors play a proactive role in reducing the number of new cases coming in the door. This might be through efforts to reduce the risks of current defendants from coming back—such as mitigating known risk factors like substance use or lack of housing. More broadly, it might also include prevention efforts such as youth development programming or driver’s license restoration programs. In the absence of vital services like mental health counselors or temporary housing placements in other sectors, some prosecutors’ offices have taken on these roles in-house because the alternative is too costly in terms of social damage and increased caseloads.

But don’t just take our word about the role of prosecutors. Over twenty prosecutors recently weighed in on how they view their role and ways to reimagine their positions in a recent booked published by NDAA and LaGratta Consulting. Below are excerpts from these interviews.

“I see my role as a prosecutor as making sure the criminal justice system is fair and just for everyone involved. The convictions of yesterday must hold integrity tomorrow, which is why acknowledging past mistakes is so important.” – District Attorney Mark Dupree, Kansas

“My role as a prosecutor is to be a community leader for public safety. One way to keep a community safe is to prosecute people who commit crimes, and my office does not hesitate to do this. Another way for a prosecutor to keep a community safe is to work with the community to develop programs to prevent crime in the first place.” – District Attorney John Hummel, Oregon

“We always had social workers to assist crime victims, but I recognized the need for social workers for defendants, too.” – District Attorney Darcel Clark, New York

“My hope is that one day, anyone who poses a risk or danger will receive a healthy, community-based response from a well-designed, well-resourced system.” – District Attorney John Chisholm, Wisconsin

These aren’t the views or actions of “progressive prosecutors” alone. These strategies are at work in countless offices across the country, large and small. Do all of these roles have to fall to the prosecutor? Probably not. But many prosecutors are faced with a tough question: If not us, then who? Perhaps with the redesign of criminal legal systems underway in many communities, these roles will be resourced differently and shared among other agencies. In the meantime, prosecutors’ roles will continue to be complex and dynamic, requiring thoughtful examination by community members and leaders alike.

Nelson Bunn is executive director of the National District Attorneys Association. Emily LaGratta is a lawyer and justice reform advisor who runs LaGratta Consulting LLC.

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