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Criminology Prosecution and Courts
by
Brian Forst

Introduction

Prosecution and courts are at the heart and center of our criminal justice system. They serve as stages of case processing that follow the police arrest and precede the delivery of convicted defendants to correctional authorities. The prosecutor, usually a politically elected official, is the chief law enforcement officer in a jurisdiction (county, state, federal) yet carries out an administrative function within the executive branch of government. To put the prosecutor and court in perspective, it is useful to think about the 2 million or so felony arrests made in the United States annually. About a million end in conviction and sentencing each year. What happens between arrest and sentencing is driven by the prosecutor and court adjudication system. Yet remarkably little scholarly attention is paid to prosecution and adjudication, relative to the stages before (offending and policing) and after (corrections and subsequent offender behaviors). The information that follows aims to help interested people to learn about prosecution and adjudication and the forces that shape practices in these two critical and largely overlooked stages of the criminal justice process.

Historical Background

Most accounts of typical prosecution and adjudication systems in the United States describe them as rooted in European systems of justice. Kress 1976 and Worrall 2008 identify three systems as especially significant: Dutch (the prosecutor is a local official), French (the prosecutor has substantial discretion to file charges), and English (the prosecutor can drop a case at any time). In the years immediately after the founding of the United States, prosecutors were appointed public officials, but a system of elected prosecutors evolved in the early 19th century, and by 1860 most US prosecutors were elected to office (Jacoby 1980).

  • Jacoby, Joan E. 1980. The American prosecutor: A search for identity. Lexington, MA: Lexington Books.

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    Describes the American prosecutor as unique in terms of an electoral process that focuses on local interests and “the enforcement of essentially local laws” rather than national ones.

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  • Kress, Jack M. 1976. Progress and prosecution. Annals of the American Academy of Political and Social Science 423:99–116

    DOI: 10.1177/000271627642300110Save Citation »Export Citation »E-mail Citation »

    Argues that the operations of the American public prosecutor can be better understood by understanding the historical origins of the system in which the modern prosecutor operates: a system rooted in the common-law system of private prosecution.

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  • Worrall, John L. 2008. Prosecution in America: A historical and comparative account. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 3–26. Albany: State Univ. of New York Press.

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    Offers an historical account of American prosecution that is accessible and thorough, yet fairly concise. This is the introductory chapter to an anthology on prosecution that is comprehensive and up-to-date.

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International Comparisons

Cross-national comparisons of prosecution systems indicate that while American prosecution is rooted in European systems, the American prosecutor is unique in several respects. Shikita 1996 observes that the US system of federalism grants authority to the states for the prosecution of the vast majority of criminal offenses, putting the typical prosecutor outside the chain of command of the US president. In most systems around the world, prosecutors are appointed down a pyramid with the head of state at the top. Worrall 2008 notes that the United States is unique as well for its heavy reliance on the electoral process to determine who prosecutes cases. Even judges are elected in some states. And unlike the British system of private prosecution, prosecutors in the United States are public officials who typically work for a district attorney (“state’s attorney” or “commonwealth attorney” in some states) elected at the county level. In no country does the prosecutor exercise the extent of discretionary authority that the typical prosecutor in the United States does (Worrall 2008).

  • Shikita, Minoru. 1996. The role of the public prosecutor in a changing world. In The role of the public prosecutor in criminal justice, according to the different constitutional systems. Edited by J. De Figueiredo Dias, R. Ottenhof, J.-F. Renucci, L.-C. Henry, and M. Shikita, 49–71. Bologna, Italy: Lo Scarabeo.

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    Provides much of the basis for Worrall’s chapter on comparative prosecution systems (Worrall 2008). This chapter was presented by Shikita as a paper at a meeting held in Cairo in 1995, in association with a United Nations conference on the prevention of crime.

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  • Worrall, John L. 2008. Prosecution in America: A historical and comparative account. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 3–26. Albany: State Univ. of New York Press.

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    Worrall’s introductory chapter to his anthology on prosecution offers a comparative description of American prosecution, which evolved from European systems of prosecution but is unique in several ways. The chapter is concise and accessible.

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After Arrest

Detailed estimates of what happens between arrest and conviction nationwide—cases rejected, accepted, and later dismissed; abscondences, pleas, acquittals, and guilty verdicts—have been made in studies sponsored by the Bureau of Justice Statistics. Information about what happens to the approximately 2 million arrests made each year in the United States for index crimes (homicide, forcible rape, robbery, burglary, aggravated assault, larceny, and arson) is much less abundant than information about what happens from victimization to the arrest stage. Estimates from the data that are available suggest that just over half of all adult felony arrests end in conviction (Boland, et al. 1992; Brown, et al. 1999). Unlike the estimates from case-tracking data in Boland, et al. 1992, the estimates from Brown et al. 1999 result from tallies of convictions, sentences, and incarcerations during a given year, which often involve different cases, thus creating errors when the numbers of cases changes from one year to the next. On the other hand, the Brown, et al. 1999 estimates are from a larger and probably more representative sample of counties. Contrary to popular perception, only about 1 percent of all felony arrests are rejected by the prosecutor or dismissed by the judge because of police errors in obtaining evidence or inducing confessions. Numerous studies examine prosecutors’ case-screening and handling; decisions are influenced primarily by the strength of the evidence and the seriousness of the offense (Forst and Brosi 1977; Jacoby 1981; Feeney, et al. 1983). The vast majority of felony cases dropped by the prosecutor are rejected due to insufficiency of physical and testimonial evidence (Boland, et al. 1992). The literature suggests that whether an arrest ends in conviction depends largely on factors over which the prosecutor has no direct control: the strength of the evidence available to the police officer; the effectiveness of the officer in bringing the most pertinent pieces of that evidence, both tangible and testimonial, to the prosecutor; and the seriousness of the offense. But prosecution and court resources and practices also play a significant role in determining whether arrests end in conviction and whether culpable offenders go free (Forst 2002).

  • Boland, Barbara, Paul Mahanna, and Ronald Sones. 1992. The prosecution of felony arrests, 1988. Washington, DC: Bureau of Justice Statistics, NCJ 173939.

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    Presents tallies from case-tracking data on the prosecution of felony arrests in thirty urban jurisdictions in 1988. Finds that 54 percent of all adult arrests result in conviction on either a felony or a misdemeanor, about 96 percent of those by guilty pleas and 4 percent by a guilty verdict at trial.

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  • Brown, Jodi M., Patrick A. Langan, and David J. Levin. 1999. Felony sentences in state courts, 1996. Washington, DC: Bureau of Justice Statistics, NCJ 173939.

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    Presents estimates from data for a nationally representative survey of 344 counties on conviction and sentencing data for 1996. About 1 million men and women were convicted of a felony in state courts, with 38 percent sentenced to state prison, 31 percent sentenced to local jail (usually for a year or less), and 31 percent sentenced to straight probation with no jail or prison time.

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  • Feeney, Floyd, Forrest Dill, and Adrianne Weir. 1983. Arrests without conviction: How often they occur and why. Washington, DC: US Department of Justice, National Institute of Justice.

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    An empirical analysis based on review of prior research, information obtained from over one hundred jurisdictions, visits to ten sites, detailed observations in four sites, and extensive analysis of case records in Jacksonville, Florida, and San Diego, California.

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  • Forst, Brian. 2002. Prosecution. In Crime: Public policies for crime control. 2d ed. Edited by James Q. Wilson and Joan Petersilia, 509–536. Oakland, CA: ICS.

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    Offers estimates of detailed stages of case processing from arrest to conviction nationwide based on data from numerous individual jurisdictions and from aggregate data collected by the Bureau of Justice Statistics. Also provides an assessment of why about half of all arrests fail to end in conviction.

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  • Forst, Brian, and Kathleen Brosi. 1977. A theoretical and empirical analysis of the prosecutor. Journal of Legal Studies 6:177–191.

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    Tests model of prosecutorial decision making based on analysis of over 5,700 felony arrests brought to prosecutor in 1973. Found that strength of evidence was the dominant determinant of case acceptance and processing, followed by offense seriousness. Prior record had no effect on the prosecutor’s decisions to give extra attention to a case.

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  • Jacoby, Joan E. 1981. Prosecutorial decisionmaking: A national study. Washington, DC: Bureau of Social Science Research.

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    Describes prosecution styles as falling into four archetypes: legal sufficiency, system efficiency, defendant rehabilitation, or trial sufficiency. These archetypes drive decisions for accepting and processing cases.

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The Role of Discretion

Studies of prosecution indicate that discretion plays a central role in determining how criminal cases are processed and how the public is served along the way. They note other points at which prosecutors exercise discretion: encouraging the police to obtain further evidence in a case or to arrest others; deciding whether to decline or proceed with prosecution in a given case; recommending whether the judge should release or hold the defendant on bail; deciding whether to negotiate a guilty plea or to induce one defendant to testify or provide information against another defendant or suspect; and figuring out how much time and effort to invest in each case, how much evidence to reveal at the grand jury stage, whom to select from the jury pool, which witnesses to call to the stand, how much tangible evidence to present, and what sentence to recommend to the judge or jury. Central questions involve how the prosecutor should allocate scarce resources and how best to proceed for each of a wide variety of cases involving street crime, domestic violence, drug violations, child abuse, white-collar offenses, and repeat offenders in violation of court orders and warrants. At the arrest stage, the decision of whether and how to charge the suspect must take into account the often conflicting goals of crime prevention, fairness, reform of the offender and reintegration into the community, and resource conservation. Breitel 1960 and others have proposed guidelines to manage the prosecutor’s broad discretionary authority, but such proposals have rarely taken hold in a meaningful way. The influence of the prosecutor relative to that of the judge is reflected in a statistic that surprises many: for every felony case that a judge presides over in trial, the prosecutor decides the fate of fourteen adult felony cases brought by the police (Forst 2002).

  • Breitel, Charles. 1960. Controls in criminal law enforcement. University of Chicago Law Review 27:427–435

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    Judge Breitel makes the following case for prosecutorial discretion: if prosecutors always acted in strict accordance with the rules of law, “precisely and narrowly laid down, the criminal law would be ordered but intolerable.”

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  • Engen, Rodney L. 2008. Have sentencing reforms displaced discretion over sentencing from judges to prosecutors? In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 73–90. Albany: State Univ. of New York Press.

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    Reviews the research and concludes that while judges exercise less sentencing discretion under mandatory and presumptive sentencing laws, there is no evidence that prosecutors have more influence over sentencing outcomes than they did before these laws.

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  • Forst, Brian. 2002. Prosecution. In Crime: Public policies for crime control. 2d ed. Edited by James Q. Wilson and Joan Petersilia, 509–536. Oakland, CA: ICS.

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    Describes the role of discretion in the prosecutor’s case-processing decisions as driven largely by the absence of systematic assessment systems, office tradition, and the prosecutor’s incentives. The essay describes the exercise of discretion across detailed stages of case processing from arrest to conviction.

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  • Jackson, Robert H. 1940. The federal prosecutor. Journal of the American Judicial Society 24:18–19.

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    Jackson had been attorney general for just three months when he gave a speech to US attorneys that was published as this article. In it, he offered his views on what constituted proper ethical conduct by federal prosecutors.

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  • Jacoby, Joan E. 1980. The American prosecutor: A search for identity. Lexington, MA: Lexington Books.

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    Describes the exercise of discretion as driven by the strategic perspective of the prosecutor, with four distinct styles: legal sufficiency, system efficiency, defendant rehabilitation, and trial sufficiency. These archetypes drive the exercise of discretion in case screening and processing.

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  • Kress, Jack M. 1976. Progress and prosecution. Annals of the American Academy of Political and Social Science 423:99–116

    DOI: 10.1177/000271627642300110Save Citation »Export Citation »E-mail Citation »

    Describes the prosecutor as the most important figure in the modern American system of criminal justice administration, having virtually limitless discretionary authority. This power stems from the fact that the public prosecutor operates in a system derived from a common-law system of private prosecution. It manifests itself primarily in the prosecutor’s charging and plea-bargaining decisions.

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  • Neubauer, David W. 1999. America’s courts and the criminal justice system. Belmont, CA: West/Wadsworth.

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    This is a popular and very accessible textbook that describes the courts and their principal actors, how they relate to one another, and how cases play out through prosecution and sentencing. It provides essential background to help understand how and why discretion is exercised as it is.

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  • Worrall, John L. 2008. Prosecution in America: A historical and comparative account. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 3–26. Albany: State Univ. of New York Press.

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    Worrall’s introductory chapter to his and Nugent-Borakove’s anthology on prosecution that includes three sections on the evolution of the prosecutor’s extensive discretionary authority. The first is labeled “From limited to almost limitless power”; the second, “Discovering discretion”; the third, “Discretion.”

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Abuses of Discretion

While prosecutors have an extraordinary breadth of discretion, authorities observe that certain lines cannot be crossed. Most raise objections to excessive politicization of practices. Adams 2000 and Will 1994 note that the 1990s saw accusations of abuses made against independent prosecutor Kenneth Starr in his pursuit of Bill Clinton. Similar charges were made against Joseph DiGenova in his pursuit of the former Washington, D.C., mayor Marion Barry following a sensational cocaine bust, and against the US attorneys who went after arbitrarily selected Wall Street traders under the amorphous Racketeer Influenced and Corrupt Organizations (RICO) Act (Forst 2002). Much commentary followed the flagrant abuse of discretion in the 2006 case of Durham County District Attorney Mike Nifong’s aggressive and dishonest charging of members of the Duke University lacrosse team for allegedly raping a woman hired as entertainment at a party. Nifong lost his law license and was convicted of fraud, deceit, and misrepresentation in the scandal (Taylor and Johnson 2008). Observers also noted a federal judge’s 2009 acceptance of Attorney General Eric Holder’s motion to set aside the verdict and dismiss the indictment of Alaska Senator Ted Stevens with prejudice, based on what the judge called “the worst case of prosecutorial misconduct” he had ever seen (Wilber 2009). Reports of such abuses are rarer than reports of the celebrity cases exploited by prosecutors. More remarkable is the lack of scrutiny given to abuses in run-of-the-mill felonies that go unnoticed. Abuses in sensational cases that come to light because of intense public scrutiny make the likelihood of abuses in these other cases all but inevitable and worthy of more attention (Forst 2002).

  • Adams, Lorraine. 2000. $52 million Starr probe costliest ever. Washington Post. April 1, A2.

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    Washington Post reporter Adams summarizes a General Accounting Office report observing that the over $52 million former independent counsel Kenneth Starr spent to investigate the Whitewater controversy and President Clinton’s affair with Monica Lewinsky was the costliest independent counsel investigation to date.

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  • Forst, Brian. 2002. Prosecution. In Crime: Public policies for crime control. 2d ed. Edited by James Q. Wilson and Joan Petersilia, 509–536. Oakland, CA: ICS.

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    Describes the role of discretion in the prosecutor’s case-processing decisions as driven largely by the absence of systematic assessment systems, office tradition, and the prosecutor’s incentives.

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  • Taylor, Stuart, Jr., and K. C. Johnson. 2008. Until proven innocent: Political correctness and the shameful injustices of the Duke lacrosse rape case. New York: St. Martin’s Griffin.

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    Legal journalist Taylor and historian Johnson review the sordid facts of the case of rogue prosecutor Mike Nifong willfully disregarding evidence of the men’s innocence, Duke administrators succumbing to political correctness, and much of Duke’s faculty and the media rushing to assume guilt in the racially charged case.

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  • Wilber, Del Quentin. 2009. Judge tosses out Stevens conviction. Washington Post. April 7.

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    Washington Post reporter Del Wilber, who covers the federal courts, documents excesses by the US Attorney for Washington, D.C. in withholding exculpatory evidence from the defense in Alaska Senator Ted Stevens’s trial and sending home a witness favorable to Stevens for failing to report gifts properly.

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  • Will, George F. 1994. Fangs of the independent counsel. Washington Post. January 7, A19.

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    Will describes the political excesses of independent counsel Starr as political theater, an attempt to relive the drama of the Watergate hearings of the 1970s.

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Prosecution: Quantity Versus Quality

Several prosecutorial tradeoffs have been identified in the literature on prosecution. One is between aiming for quality convictions by being more selective at the screening stage and then putting more effort into bringing cases to trial, or aiming for more convictions by accepting more marginal cases and putting greater effort into negotiating guilty pleas in return for charge reductions (Boland and Forst 1985, Forst 2008). A prosecutor who opts for more pleas and fewer trials uses lower standards of case acceptance at the screening stage and gets more convictions at the expense of shorter average terms of incarceration per conviction. Where a prosecutor comes down on this question is a major factor in the ratio of pleas to trials. Boland and Forst find that offices on the quality end of the spectrum have plea-to-trial rates below ten to one; offices on the quantity end have ratios above fifteen to one. Offices with less selective screening policies have been found to have higher plea-to-trial ratios and higher conviction rates, but lower rates of imprisonment, than those that are more selective. In jurisdictions where the police tend to bring weaker cases, a more selective screening policy is more clearly warranted (Forst 2008). Another tradeoff involves the question of whether to target criminally active offenders, focusing on crime control, at the expense of the severity of the current offense (Forst and Brosi 1977). In the late 1970s and early 1980s many prosecutors, stimulated largely by federal support, instituted programs to target resources on cases involving repeat offenders. Catherine Coles has reframed the targeting question as a matter of choosing between a traditional felony case-processing strategy and one that emphasizes quality of life in the community (Coles 2008).

  • Boland, Barbara, and Brian Forst. 1985. Prosecutors don’t always aim to pleas. Federal Probation 49:10–15.

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    The authors find a ratio of pleas to trials to be around ten to one nationwide. Three jurisdictions with extremely low rates are Washington, D.C. (5:1), New Orleans (4:1), and Portland, Oregon (4:1); two with extremely high rates are Geneva, Illinois (37:1), and Littleton, Colorado (19:1). Boland and Forst also analyze differences between US attorney offices in adjacent federal districts.

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  • Coles, Catherine M. 2008. Evolving strategies in 20th-century American prosecution. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 177–210. Albany: State Univ. of New York Press.

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    Coles assesses new approaches to prosecution, focusing on the community prosecution movement and the departure it represents from the traditional felony case-processing orientation in terms of mission, base of authority, demand, organization, tactics, environment, and outcomes.

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  • Forst, Brian. 2008. Prosecution policy and errors of justice. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 51–72. Albany: State Univ. of New York Press.

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    This chapter focuses on the effect of the quantity/quality tradeoff of convictions with errors of justice, both overall and for two crime categories—homicides and burglaries. Sensitivity analysis suggests the importance of basing case screening and plea-negotiation policies on the quality of arrests brought by the police.

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  • Forst, Brian, and Kathleen Brosi 1977. A theoretical and empirical analysis of the prosecutor. Journal of Legal Studies 6:177–191.

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    Offers a model of prosecution decision making based on investments in crime reduction by relaxing standards of prosecution for cases involving particularly active offenders.

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Prosecution: Performance, Accountability, and Incentives

It is widely believed that prosecutors aim to convict offenders, but the literature reveals this to be too simplistic in several respects. For one thing, prosecution is usually shielded from public view, with prosecutors largely unaccountable for their day-to-day operations, despite the fact that most prosecution offices are elected officials (Adler, et al. 2006). The exception in most large jurisdictions is the sensational homicide or celebrity case that makes the news (Walker 2006). Prosecutors are held accountable to the public primarily for these cases rather than for how effectively and justly they deal with all the cases that come to their office (Forst 2002). They are insulated by an absence of systematic public accountability in most states. Their actions can be criticized by the judge and overruled in court, but they are rarely held accountable either for their lapses in failing to obtain convictions in strong cases or for wrongful convictions (Forst 2008; Huff, et al. 1996; Scheck, et al. 2001). The idea that the prosecutor aims to maximize conviction rates is misguided for another reason, reflected in the role of prosecutor as an officer of the court whose primary aim should be justice (Jackson 1940). Several authorities have noted that prosecutors do not report to a higher authority, someone politically positioned to call for a more comprehensive system of accountability; nor have the goals of prosecution been made sufficiently clear; nor has detailed information about the decisions made by prosecutors been made sufficiently accessible to allow anyone to know whether prosecutors tend to make decisions about individual cases that correspond closely or consistently to any particular standard of justice or efficiency (Forst 2002, Nugent-Borakove 2008). Nugent-Borakove and others have called for a broader set of performance measures. One system, developed by the American Prosecutors Research Institute, proposes measures based on three goals of prosecution: the promotion of fair, impartial, and expeditious pursuit of justice; safer communities; and the promotion of integrity in the prosecutorial profession and effective coordination in the criminal justice system (Dillingham, et al. 2004). Still, prosecutor’s day-to-day operations remain out of public view, subject to abuses of discretion, despite improvements at the margins and posturing to the contrary (Forst 2002).

  • Adler, Freda, Gerhard O. W. Mueller, and William S. Laufer. 2006. Criminology and the criminal justice system. Boston: McGraw-Hill.

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    This is a popular textbook on criminology and criminal justice, with good descriptions of how prosecutors and courts are held accountable.

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  • Dillingham, Stephen D., M. Elaine Nugent, and Debra Whitcomb. 2004. Prosecution in the 21st century: Goals, objectives, and performance measures. Alexandria, VA: American Prosecutors Research Institute.

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    This American Prosecutors Research Institute report was written to help prosecutors establish office-performance measures to support funding requests, foster public support, and respond to critics of traditional systems of assessment.

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  • Forst, Brian. 2002. Prosecution. In Crime: Public policies for crime control. 2d ed. Edited by James Q. Wilson and Joan Petersilia, 509–536. Oakland, CA: ICS.

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    Describes the prosecutor’s case-processing decisions as driven largely by the prosecutor’s incentives to look good in visible cases and keep day-to-day operations out of public view.

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  • Forst, Brian. 2008. Prosecution policy and errors of justice. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 51–72. Albany: State Univ. of New York Press.

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    Systems of accountability for prosecutors ignore the prosecutor’s responsibility for wrongful convictions.

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  • Huff, C. Ronald, Arye Rattner, and Edward Sagarin. 1996. Convicted but innocent: Wrongful conviction and public policy. Thousand Oaks, CA: Sage.

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    This important book on wrongful convictions includes discussions of how wrongful convictions frequently result from prosecutorial misconduct and error, plea bargaining practices, and community pressures on the prosecutor to convict.

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  • Jackson, Robert H. 1940. The federal prosecutor. Journal of the American Judicial Society 24:18–19.

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    Jackson offers his views on what constitutes proper, ethical conduct by federal prosecutors, urging them not only to serve the interests of law enforcement, but also to serve the interests of justice. Jackson gave a speech to US attorneys that was published soon thereafter as this article.

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  • Nugent-Borakove, M. Elaine. 2008. Performance measures and accountability. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 91–108. Albany: State Univ. of New York Press.

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    Argues that conventional systems of accountability fail to capture the importance of the evolving need to coordinate with other key stakeholders in community safety and well-being.

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  • Scheck, Barry, Peter Neufeld, and Jim Dwyer. 2001. Actual innocence: When justice goes wrong and how to make it right. New York: New American Library.

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    Riveting accounts of ten men released from prison following the revelation of exonerating DNA evidence.

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  • Walker, Samuel. 2006. Sense and nonsense about crime and drugs: A policy guide. 6th ed. Pacific Grove, CA: Brooks-Cole.

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    This criminal justice classic pokes holes in the popular mythology of the criminal justice system, such as the myth that top officials put the well-being of the community above that of getting good press. Public officials give disproportionate attention to celebrity cases, at the expense of ones that may have a more profound impact on the safety of the community.

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Courts: Performance, Accountability, and Incentives

Performance measures for the courts have been proposed by the National Center for State Courts (Commission on Trial Court Performance Standards 1990) in five major areas: access to justice; expeditiousness and timeliness; equality, fairness, and integrity; independence and accountability; and public trust and confidence. From three to six specific standards were proposed in each of the five areas. Two key elements of this system are its emphasis on measures that reflect output rather than input and its design to serve citizens—clients of the court—rather than justice practitioners (Cole 1993). These standards were endorsed by several prestigious judicial and court administration organizations (Keilitz 2000).

  • Cole, George F. 1993. Performance measures for the trial courts, prosecution, and public defense. In Performance measures for the criminal justice system. Bureau of Justice Statistics—Princeton University Study Group on Criminal Justice Performance Measures, 87–106. Washington, DC: US Department of Justice. Office of Justice Programs.

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    This chapter of a Bureau of Justice Statistics report on performance measurement focused on the prosecution, defense, and adjudication sectors of criminal justice.

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  • Commission on Trial Court Performance Standards. 1990. Trial court performance standards with commentary. Williamsburg, VA: National Center for State Courts; US Bureau of Justice Assistance.

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    This three-year commission was funded by the Bureau of Justice Statistics to create performance standards for trial courts. It produced twenty-two standards in the five areas noted above.

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  • Keilitz, Ingo. 2000. Standards and measures of court performance. In Criminal justice 2000. Vol. 4, Measurement and analysis of crime and justice, 559–594. Washington, DC: US Department of Justice, Office of Justice Programs, National Institute of Justice.

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    Applies the general logic of performance measurement—emphasizing the use of inputs, outputs, and outcomes, and continuous self-assessment—to the courts. He reports formal support but suggests informal resistance from many court practitioners to these constructs.

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Statistical Accounting of Prosecution

Conviction rates are not routinely reported to a national agency in the same way that crimes reported to the police and arrests made by the police are documented annually by the FBI. The National Judicial Reporting Program (NJRP) reports felony arrests and convictions for over three hundred of the nation’s 3,195 counties, but the data are aggregates rather than based on individually tracked felony cases (Brown, et al. 1999; Langan and Solari 1992). Many of the convictions reported for any given year relate to arrests made in earlier years, which creates distortions when the aggregates change from one year to the next. Moreover, the NJRP gives no reasons for case rejections by prosecutors. Systems of accounting for prosecutor and courts fail generally to reflect the four essential goals identified under a landmark project on criminal-justice performance measurement: doing justice, promoting secure communities, restoring crime victims, and promoting noncriminal options (DiIulio 1993). More recent data on prosecution are provided in the National Survey of Prosecutors, a biennial survey of a sample of the nation’s 2,300 state court prosecution offices that try felony cases, including data on the number of felony cases closed, felony convictions, juvenile cases processed in criminal court, and the use of community prosecution strategies. According to Nugent-Borakove 2008, prosecutors’ offices remain, nonetheless, “notoriously lacking” in basic data collection and performance management systems common to other components of the criminal justice system and public administration more generally.

  • Brown, Jodi M., Patrick A. Langan, and David J. Levin. 1999. Felony sentences in state courts, 1996. Washington, DC: Bureau of Justice Statistics, NCJ 173939.

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    Presents data from a nationally representative survey of 344 counties on conviction and sentencing statistics for 1996.

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  • DiIulio, John J. Jr. 1993. Rethinking the criminal justice system: Toward a new paradigm. In Performance measures for the criminal justice system, 1–18. Edited by James Q. Wilson. Washington, DC: US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

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    This is the introductory chapter to a landmark Bureau of Justice Statistics report on performance measurement in the criminal justice system.

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  • Langan, Patrick A., and Richard Solari. 1992. National Judicial Reporting Program, 1988. Washington, DC: Bureau of Justice Statistics.

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    This Bureau of Justice Statistics report gives data on convictions and sentences for felony offenders in a representative sample of over three hundred US counties, from a biennial survey.

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  • National Judicial Reporting Program. 2005. State court sentencing of convicted felons, 2002—Statistical tables. Washington, DC: Bureau of Justice Statistics, NCJ 208910.

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    The NJRP compiles detailed information on the sentences and characteristics of convicted felons in state courts. The survey excludes misdemeanors and federal court convictions. The NJRP has been conducted every two years since 1986.

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  • Nugent-Borakove, M. Elaine. 2008. Performance measures and accountability. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 91–108. Albany: State Univ. of New York Press.

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    Offers a new set of criteria for prosecutor accountability, based on the growing emphasis on quality of life in the community.

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  • Perry, Steven W. 2006. Prosecutors in state courts, 2005. Washington, DC: Bureau of Justice Statistics, NCJ 213799.

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    Presents findings from the 2005 National Survey of Prosecutors, the latest in a series of data collections about the nation’s 2,300 state court prosecutors’ offices that tried felony cases in state courts of general jurisdiction. Reports are also for 2001, 1996, 1994, and 1992.

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Pleas and Trials

The vast majority of convicted felony defendants elect to plead guilty rather than take their chances in trial, often to obtain a lighter sentence than if found guilty in trial (Heumann 1978, McCoy 1993). Those who choose to go to trial are most often found guilty, and most of those are incarcerated to terms of at least a year (Forst 2002, Langan and Solari 1992). The prosecutor generally induces a plea by dismissing certain charges, often ones that would enhance the sentence, in return for a plea of guilt on lesser charges. Pleas often offer leniency in exchange for information from the defendant against co-offenders. Such pleas can bring offenders to justice, but they also risk miscarriages of justice, especially when the person offering the information is a greater menace to the community than the person about whom the information is given. Street offenders have been found, in any case, to be less inclined to assist prosecutors by providing such information than other offenders (Forst and Lucianovic 1977). Some believe that plea bargaining is wrong and should be abolished, as it deprives defendants of their full constitutional right to trial by jury and deprives victims of the security of long terms of incarceration for offenders. But the abolition of or constraints on plea-bargaining practices by legislation or voter referendum has been found to be ineffective at best, and possibly counterproductive (Rubinstein and White 1979). The general conclusion is that little good is served in trying to force all cases through the trial process, since many—perhaps most—pleas involve cases in which an offender has no defense and simply wishes to expedite the process, often in exchange for concessions by the prosecutor.

  • Blumstein, Alfred, Jacqueline Cohen, Susan E. Martin, and Michael H. Tonry, eds. 1983. Research on sentencing: The search for reform. 2 vols. Washington, DC: National Academy.

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    This is a two-volume report of a National Academy of Sciences panel on sentencing. The first volume focuses on sentencing practices, the determinants of sentencing severity, judicial disparity in sentencing and other problems with existing arrangements, and proposals for reform, including sentencing guidelines. The second volume consists of eight papers commissioned by the panel on special topics.

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  • Eisenstein, James, and Herbert Jacob. 1977. Felony justice: An organizational analysis of criminal courts. Boston: Little Brown.

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    Based on a theory of organizational dynamics, Eisenstein and Jacob examine factors that influenced felony case processing and dispositions in Baltimore, Chicago, and Detroit in 1972–1973.

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  • Forst, Brian. 2002. Prosecution. In Crime: Public policies for crime control. 2d ed. Edited by James Q. Wilson and Joan Petersilia, 509–536. Oakland, CA: ICS.

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    Provides an overview of the prosecutor’s exercise of discretion in deciding whether to negotiate a plea or take a defendant to trial. Observes that much of this is established by office tradition—earlier decisions to emphasize quantity or quality of convictions.

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  • Forst, Brian, and Judith Lucianovic. 1977. The prisoner’s dilemma: Theory and reality. Journal of Criminal Justice 5:55–64.

    DOI: 10.1016/0047-2352(77)90025-3Save Citation »Export Citation »E-mail Citation »

    The authors tested the prisoner’s dilemma using data for 520 robbery defendants convicted in the D.C. Superior Court in 1973, 206 involving codefendants and 314 involving solo defendants. Controlling for the number of witnesses and the recovery of tangible evidence, the study found that codefendants were less likely to plead guilty than solo defendants.

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  • Heumann, Milton. 1978. Plea bargaining: The experiences of prosecutors, judges, and defense attorneys. Chicago: Univ. of Chicago Press.

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    Heumann’s field research in six Connecticut trial courts in 1972–1973 found that pleas were not the result of onerous caseload pressure, but rather the product of organizational character and social context that induced the prosecutor, defense counsel and defendant, and judge to work out a system of inducements to avoid trial and adopt a more nonconfrontational protocol for disposing cases.

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  • Langan, Patrick A., and Richard Solari. 1992. National Judicial Reporting Program, 1988. Washington, DC: Bureau of Justice Statistics.

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    This Bureau of Justice Statistics report gives data from a biennial survey on convictions and sentences for felony offenders in a representative sample of over three hundred US counties.

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  • McCoy, Candace. 1993. Politics and plea bargaining: Victims’ rights in California. Philadelphia: Univ. of Pennsylvania Press.

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    Analyzes the impact of a referendum (Proposition 8) to enhance victims’ rights by speeding up the trial process. McCoy concludes the referendum actually disenfranchises victims and defendants alike by accelerating procedures for obtaining guilty pleas and making the system less transparent in the process.

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  • Rubinstein, Michael L., and Teresa J. White. 1979. Alaska’s ban on plea bargaining. Law and Society Review 13:367–383.

    DOI: 10.2307/3053259Save Citation »Export Citation »E-mail Citation »

    The authors find that a sweeping 1975 ban on plea bargaining had little effect on conviction and sentencing outcomes.

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Sentencing Reform

Since the 1980s sentences have been driven largely by legislators acting to toughen sanctions substantially. The replacement of indeterminate sentencing with more structured approaches removed discretion from judges and parole officials, but not from prosecutors. Some have characterized this as a shift in sentencing discretion from judges to prosecutors, but Engen 2008, Forst 2002, and others suggest that it may represent a net reduction in unwarranted disparity with no real increase in prosecutorial discretion. Prosecutors have contributed to reform in sentencing by recommending alternatives to incarceration for nonviolent offenders: fines, restitution, forfeiture, intensive probation supervision and electronically monitored home detention, and community-based sanctions that encourage community reintegration without substantial risks. These sanctions are less inexpensive to administer, and they tend to produce less stigma than prison, enhancing the offender’s prospects for community reintegration. Moreover, some alternatives to incarceration can provide compensation to the victim and, especially in the case of crimes without identifiable victims, to society. Some of the most widely used alternatives to conventional incarceration include community service, shock probation (resentencing the prisoner to probation after a short prison term), intensive probation supervision (often involving house arrest and electronic monitoring), and community-based corrections. These alternatives have become increasingly important as US prison populations have soared. A serious risk associated with the harsher of these alternatives is that they may not be used as alternatives to incarceration at all, but imposed instead on offenders who would ordinarily have received lesser sanctions—a phenomenon that Morris and Tonry have called “net widening”—making community reintegration more difficult —or that they may be inappropriately used in addition to incarceration (Morris and Tonry 1990).

  • Engen, Rodney L. 2008. Have sentencing reforms displaced discretion over sentencing from judges to prosecutors? In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 73–90. Albany: State Univ. of New York Press.

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    Concludes that while judges exercise less sentencing discretion under mandatory and presumptive sentencing laws, there is no evidence that prosecutors have more influence over sentencing outcomes than they did before these laws.

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  • Forst, Brian. 2002. Prosecution. In Crime: Public policies for crime control. 2d ed. Edited by James Q. Wilson and Joan Petersilia, 509–536. Oakland, CA: ICS.

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    Addresses the question of whether prosecutors have more impact on sentencing since the reform of sentencing, concluding that they have more impact relative to judges than before, although not more absolute influence over sentencing.

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  • Morris, Norval, and Michael Tonry. 1990. Between prison and probation: Intermediate punishments in a rational sentencing system. New York: Oxford Univ. Press.

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    Morris and Tonry find a disconnect between the continuum of the offense severity of felony convictions and the discreteness of the incarceration-versus-probation decision in sentencing. They argue for the need for intermediate sanctions between prison and probation, demanded by fairness, rationality, and crime control.

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Community Prosecution and Other New Developments in Prosecution

Prosecution and adjudication have been more resistant to innovation than police and corrections. One reform, which parallels developments in both policing and corrections, stands out: community-oriented prosecution programs (Karp and Clear 2000). Karp and Clear set forth general principles of community justice, starting with the idea that the overarching goal is enhanced quality of life in the community. Community prosecution systems initiated in the mid-1990s aimed to move prosecution operations from the court to the community, decentralizing operations from central offices and integrating them more fully, especially into crime-plagued neighborhoods (Boland 1998). Many prosecutors have jumped on the community bandwagon. They have done so in much the same way as did police chiefs a decade or so earlier: first a few brave souls, then others when the political benefits become more apparent and federal support available (Coles 2008, Nugent-Borakove and Fanflik 2008). Columnist Robert Samuelson has highlighted community-oriented justice programs that confer benefits on politicians rather than special interest groups as “the new pork barrel… propaganda disguised as a government program” (Samuelson 2000). It may be no coincidence that such programs are unheard of in other countries, where prosecutors are appointed rather than elected. In the 1980s and 1990s it was common to hear police officers complain about learning of their department’s conversion to community policing on the evening news. Today, assistant district attorneys tell similar stories. Other developments in prosecution provide equally dubious incentives for prosecutors, such as those that induce prosecutors to act more aggressively to prevent suspected terrorism events (Chesney 2008).

  • Boland, Barbara. 1998. Community prosecution: Portland’s experience. In Community justice: An emerging field. Edited by David R. Karp, 253–277. Lanham, MD: Rowman & Littlefield.

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    Boland’s chapter in this anthology on community justice focuses on community prosecution in Portland. She concludes that community prosecution delivered on its promise to bring the criminal justice process closer to the community in Portland.

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  • Chesney, Robert. 2008. Anticipatory prosecution in terrorism-related cases. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 157–173. Albany: State Univ. of New York Press.

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    Examines the impact of the 9/11 terrorist attacks on federal prosecution. One such effect is the tactic of “anticipatory prosecution”—catching suspected terrorists early in the act in order to prevent terrorist acts from successfully occurring. This tactic makes for weak cases and increases the risks of false positives.

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  • Coles, Catherine M. 2008. Evolving strategies in 20th-century American prosecution. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 177–210. Albany: State Univ. of New York Press.

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    Assesses new approaches to prosecution, focusing on community prosecution and how it departs from the traditional felony case processing—in terms of mission, base of authority, demand, organization, tactics, environment, and outcomes.

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  • Karp, David R., and Todd R. Clear. 2000. Community justice: A conceptual framework. In Criminal justice 2000. Vol. 2, Boundary changes in criminal justice organizations, 323–368. Washington, DC: US Department of Justice, Office of Justice Programs, National Institute of Justice.

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    Asks how various manifestations of community justice—community crime prevention, community policing, community defense, community prosecution, community courts, and restorative justice—enhance quality of life within communities. They also ask about the links between these interventions and individual rights and due process, community control, community mobilization and representation, and funding.

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  • Nugent-Borakove, M. Elaine, and Patricia L. Fanflik. 2008. Community prosecution: Rhetoric or reality? In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 211–230. Albany: State Univ. of New York Press.

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    This analysis of community prosecution reviews its promises and manifestations and concludes that it has not yet produced the “paradigm shift” that many had promised.

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  • Samuelson, Robert J. 2000. The new pork barrel. Washington Post. June 28, A25.

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    This op-ed piece argues that the abuses of campaign finance are dwarfed by new federal programs that are tax-supported vehicles for political sloganeering. These programs in fact provide few real public benefits, if any. They merely create the illusion that elected officials are attacking pressing national problems. The result is massive tax-subsidized political propaganda.

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Community Courts

Community courts—teen courts, drug courts, and family violence courts—complement community prosecution programs through the creation of specialty courts to deal with particular problems in the community (Rottman 1996). An essential goal of these programs is to shift from a traditional adversarial model to one that includes the following elements: dispute resolution, problem solving, crime prevention, the improved management of neighborhood disorder, inclusion of the disenfranchised, local control, and restorative justice—toward the enhancement of the quality of life in the community (Bazemore 2000, Braithwaite 2002). An important variant of this reform is the problem-solving court, which operates in communities far removed from central courthouses (Worall 2008). The overarching goal of all of these community-centered programs is to build criminal justice system legitimacy and support a democratic system of justice.

  • Bazemore, Gordon. 2000. Community justice and a vision of collective efficacy: The case of restorative conferencing. In Criminal Justice 2000. Vol. 3, Policies, processes, and decisions of the criminal justice system. Washington, DC: US Department of Justice. Office of Justice Programs. National Institute of Justice.

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    Examines the effects of community justice programs generally and restorative justice programs in particular on “collective efficacy” and quality of life generally in the community. Finds that a key to success is the active participation of citizens in the decision-making processes of these programs.

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  • Braithwaite, John. 2002. Restorative justice and responsive regulation. Oxford and New York: Oxford Univ. Press.

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    Offers compelling theoretical and empirical evidence for restorative justice programs designed to restore victims, offenders, and communities. Braithwaite argues that these programs can also deter, incapacitate, and rehabilitate more effectively than punitive systems.

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  • Rottman, David B. 1996. Community courts: Prospects and limits. National Institute of Justice Journal 231:46–51.

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    Considers prospects and limits for community courts, based on two contrasting models: deliberate “peacemaking” in the Navajo Nation’s court system and the more fast-paced Midtown Community Court and Red Hook Community Justice Center in New York City. The essential ingredient of success in both settings is flexibility and abandonment of politics as usual.

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  • Worrall, John L. 2008. Prosecutors in problem-solving courts. In The changing role of the American prosecutor. Edited by John L. Worrall and M. Elaine Nugent-Borakove, 231–243. Albany: State Univ. of New York Press.

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    Describes problem-solving courts (also known as “specialized courts,” “special jurisdiction courts,” or “boutique courts”), which include drug courts, community courts, and domestic violence courts. These courts are often homes to community prosecution programs.

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Resistance to Reform

New developments such as those discussed in Community Courts and Community Prosecution and Other New Developments in Prosecution offer considerable prospects of improvement in the operations of prosecution and adjudication, but they have not placed prosecutors or courts at the vanguard of criminal justice reform. The first decade of the new millennium finds sea changes in every other sector of the criminal justice system. Policing has gone through a community-oriented revolution, as well as a transformation in privatization (Forst and Manning 1999). We have seen equally remarkable changes in sentencing and corrections: the conversion from extensive judicial discretion in sentencing to mandatory terms and legislatively imposed sentencing guideline systems, and substantial shifts toward the use of intermediate sanctions. Changes in prosecution and courts have been fairly modest by comparison. In the 1990s prosecutors and courts started developing community outreach programs that echoed community policing. But the fundamentals of prosecution and adjudication remain as they have for decades. The role of the citizen as victim or witness in a matter between the state and the defendant, the essential steps in processing cases through the courts, and systems of public accountability all remain essentially as they were in 1950. Office-policy manuals indicating the prosecutor’s guidelines for screening cases and negotiating pleas are typically unavailable to the defense bar and the general public. This culture stands in contrast to more fundamental reforms by other criminal justice agents. Sherman, et al.1998 have similarly documented pretrial diversion programs that “tend to get co-opted by prosecutors for purposes other than the intended purpose of rehabilitating offenders.” Most fundamentally, in matters of criminal law, the victim remains a subordinate in the justice system: criminal matters remain officially contests between the defendant and the state. We have yet to see anything that qualifies as a paradigm shift in prosecution or adjudication in America.

  • Forst, Brian, and Manning, Peter K. 1999. The privatization of policing: Two views. Washington, DC: Georgetown Univ. Press.

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    Discusses a revolutionary shift toward the use of private alternatives to public police in a myriad of security roles and the pros and cons of that shift.

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  • Sherman, Lawrence W., Denise C. Gottfredson, Doris L. MacKenzie, John Eck, Peter Reuter, and Shawn D. Bushway. 1998. Preventing crime: What works, what doesn’t, what’s promising. Washington, DC: National Institute of Justice.

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    This report reviewed about five hundred crime prevention programs and found that some work, some do not, some are promising, and some have not been tested adequately.

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LAST MODIFIED: 12/14/2009

DOI: 10.1093/OBO/9780195396607-0035

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