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Reform-Minded Prosecutors Use Charging Discretion to Benefit Communities

by Anthony Accurso 

Now that the nation is evolving from “tough on crime” to “smart on crime” tactics, reform-minded prosecutors are making big changes by exercising their discretion on how and when to prosecute low-level offenders. 

At the highest levels of government, politicians in both parties have been embracing new modes of thinking about criminal justice. However, local district attorneys have long been incentivized to prosecute as harshly as possible, as failing to do so costs elections. Changing this narrative has been the focus of reform movements for the last half-decade, and the results are that new DAs have been elected on platforms of reducing prosecutions, usually in favor of diversionary programs. 

From March 2014 to June 2016, Milwaukee County District Attorney John Chisholm used diversion or deferred prosecutions in more than 1,100 cases with success rates of 81 percent and 77 percent, respectively. Using research-backed risk-assessment models, Chisholm identifies likely candidates for such programs, and the success rates have made for a safer city and an improved relationship between the police and the communities they serve. 

King County, Washington, DA Daniel Satterburg, whose jurisdiction includes Seattle, introduced the Law Enforcement Assisted Diversion (“LEAD”) program, which diverts low-level drug offenders and suspected prostitutes to case workers for access to “wrap-around services.” This program was evaluated in a 2015 study, which found it reduced recidivism by 60 percent, and it has since been implemented by 20 other cities in the U.S. 

There has been push-back, though. Critics say such programs fuel homelessness by leaving drug addicts to wander the streets. Brooklyn DA Eric Gonzalez has come under fire for his diversionary program for first-time gun possession offenders. Participants spend 18-24 months in an intense, supervised program instead of an average of three years in prison. And while shootings have declined overall for Brooklyn over the last three years, some areas have seen an uptick in shootings. Even President Donald Trump has weighed in, saying these reforms represent a “dangerous trend” in our nation’s largest cities. 

Given enough time and opportunity, the benefits of using charging discretion more intelligently and compassionately may not only benefit communities but also will hopefully change the way communities see their fundamental relationship with the criminal justice system.  

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Source: bloomberglaw.com

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