Prosecutors currently hold unchecked discretion over the filing and settling of criminal charges. Further, because prosecutors are overwhelmed by the volume of cases that must be processed through the system, prosecutors often seek to penalize those who exercise their right to a trial rather than plead guilty. Prosecutors do this by seeking exponentially longer prison terms for defendants who go to trial and are convicted (and conversely offer drastically shorter sentences to those who plead guilty to the same offense).

Specific unfair prosecutorial tactics that affect the plea bargaining process include stacking multiple charges stemming from a single incident and/or overcharging. These tactics can be coercive and impose tremendous pressure on the accused to plead guilty out of fear for what would happen if the case went to trial and they are forced to pay the ‘trial tax’. The end result is that innocent people plead guilty to crimes they did not commit.

To improve the fairness of the system, cases should be screened rigorously prior to the filing of charges and again before a final plea offer is extended. During these screenings, prosecutors should thoroughly consider the socioeconomic and systematic factors that may have led the defendant to entanglement in the court system - as well as the individual and societal costs of imposing a permanent criminal conviction on the defendant.

The cash bail system is inequitable and unfairly punishes poor people who cannot afford to post bail. The sad fact is that most of the people in jail pretrial are there because of an inability to pay the bail amount. In fact, the only entities that benefit from cash bail are the bail agencies who take a percentage cut of bail paid by the families of incarcerated defendants who are desperate to get their loved ones out of jail. To promote equity, prosecutors should recommend that those waiting for trial be released unless there is a substantial risk of harm to other individuals or the community.

The largest psychiatric facilities in the United States are not hospitals or treatment centers - they are jails and prisons. Instead of locking away community members who suffer from mental illness, we need to ramp up efforts to de-stigmatize mental illness and promote treatment for those who need it. The prosecutor’s office also has a role in encouraging law enforcement agencies to adopt de-escalation & crisis intervention tactics when encountering individuals in acute mental distress (as opposed to the current default of arrest and prosecution).

The “War on Drugs” has been an incredible failure. It resulted in destructive policing and prosecution that disproportionately impacted communities of color - and, thus, destroyed the community’s trust in the justice system. Proven successful solutions tried in other cities include refraining from prosecuting low-level drug possession cases and outright decriminalization of marijuana possession. And again, effective diversion programs have proven to be more effective than prosecution at addressing the underlying issue: drug addiction.

The brain is not fully developed until the age of 25. This means that juveniles under 18 have an increased likelihood of engaging in behavior that is reckless or risky. Prosecuting typical adolescent behavior such as marijuana smoking, disorderly conduct, and school policy infractions that do not involve serious harm to others is oftentimes unnecessary or even counterproductive. Indeed, when we over-prosecute juveniles (and juvenile behaviors), this leads to further developmental damage to the child. It is thus particularly important to seek alternatives such as diversion programs rather than incarcerate kids.

Misdemeanor charges make up 80 percent of all criminal cases, and they can significantly impact peoples’ lives. Misdemeanor convictions can also result in the loss of employment, housing, student loans, immigration status, and even child custody. A minor infraction should not be this detrimental to an individual’s life, so it is imperative that we mitigate the number of misdemeanors that are prosecuted. It is also oftentimes counterproductive to charge and prosecute crimes that result from homelessness, mental illness, or poverty, as sometimes crime is an economic decision and prosecuting such offenses only makes situations worse. The consequences of a misdemeanor conviction can contribute to a cycle of poverty and incarceration - a cycle we’ve seen repeated too many times in this recent era of mass incarceration.

As a society, it is crucial to be aware of the implications that criminal convictions may impose upon immigrants. Detention and potentially deportation are just two examples of collateral consequences, meaning an indirect effect or impact resulting from an unrelated criminal conviction. Prosecutors must understand and take into account the collateral consequences that would be imposed upon immigrants when deciding whether to charge or prosecute a crime. When possible, prosecutors should elect to file charges that would be neutral to immigration status whenever possible. Additionally, there should be better protection for immigrants who serve as witnesses in cases or those who report criminal acts.

Victims of crimes should be valued to a larger degree in the criminal justice system. In criminal cases, “the state” is the “victim”, but often individuals, family members, or loved ones are impacted by the actions of those who violate the law. To promote restorative justice, victims should be afforded the opportunity to speak with those who caused their loved one’s harm to foster accountability, repair, and rehabilitation. Programs for restorative justice should be considered for misdemeanor and felony offenses, even when the offense resulted in serious harm or injury.

Currently, there are over five million Americans on probation or parole. Supervision often serves no rehabilitative purpose, and the vast majority of those incarcerated while under supervision are locked up as a result of technical violations. Probation terms should be no longer than a year if there is not a compelling reason for an extended period of probation. In general, moreover, the use of alcohol or marijuana should not be considered a violation of supervision.

To promote societal values of accountability, equity, and justice, office culture and practice must see improvement. To do so, data sharing practices on charging, plea dispositions, and sentencing (racial disparity statistics) should be adopted. This can be done through coordination with independent agencies. Additionally, prosecutors’ offices should promote policies that reflect the values of the community. There also needs to be a shift in the way in which we evaluate the performance of our prosecutors. For example, as it stands, prosecutors inadvertently have a vested interest in their win percentage, number of convictions achieved, and length of sentences negotiated. These metrics show little to no empathy or understanding for those entangled in the criminal justice system. Potential metrics that could be used that would foster a better culture would be (1) incarceration rates (the lower the better), (2) pretrial detention (more equitable to have lower rates of detention due to cash bail system), and (3) recidivism rates (ensures prosecutors make efforts to rehabilitate those they charge and prosecute). Adopting training on the problems of implicit bias, debunked forensic methods/science, false confessions, and faulty witness identifications can be a greatly beneficial step in bettering the culture in prosecutors’ offices across the country.

It is deeply apparent that racial disparity is present in every stage of the criminal justice system. This is likely from over-policing of communities of color and implicit bias. Tracking data on the following aspects of the system would allow for a deeper understanding of the racial disparity in the system and how to adequately address it:

1. Race and gender data for bail requests

2. Charging children as adults

3. Charging decisions

4. Plea bargains

5. Sentencing recommendations

6. Parole board recommendations

Another way to attack this issue is to engage with local and federal law enforcement agencies to address disparities that are present within the various stages of the system.

Effective conviction review ensures that outcomes were not tainted by unjust practices (by prosecutors or law enforcement), faulty evidence, and bias against the accused or convicted. Establishing conviction integrity units is a great way to partner with a local law school, Innocence Project, or law firm to fight wrongful convictions and promote accountability for those entrusted with enforcing and prosecuting crime.

In this country, everyone should be granted due process and a fair trial. Therefore, it is gravely important to broaden discovery, as the withholding of evidence has been shown to greatly contribute to wrongful convictions. To do so, open file policies should be adopted, with exceptions for (1) witness safety, (2) witness tampering, and (3) private or sensitive information. After charges are filed, a police report (in the government’s possession) should be presented to the defense as soon as possible. Another step to be taken is the establishment of an ethics officer position that can help mediate between parties during the process.

Most police uphold their duties and act in good faith. However, the actions of problem officers may taint the department for which they work, as well as the justice system. Therefore, it is critical that officers be held accountable for misconduct, as doing so upholds the integrity, trust, and accountability of law enforcement agencies. To establish an accountability system, internal investigations units can be used to work with law enforcement to establish a plan in the case of officer engaged shootings and misconduct allegations.

Economic punishments can have a detrimental impact on the lives of the accused and convicted, even though their intention is to deter. When imposing fines, there are a few considerations prosecutors can use to ensure best practice: (1) consider the defendant’s ability to pay fines when imposing them, (2) support reasonable payment plans, (3) eliminate driver’s license suspensions for nonpayment of fines, and (4) advocate for the elimination of all fines/fees for children and teenagers under the age of 18.

People charged but not convicted of a crime often still end up with a publicly-available criminal record. Prosecutors should make it as simple as possible for eligible people to have their criminal records sealed or expunged.

It is important that we only use scientifically accepted practices when admitting forensic evidence into our courtrooms. Many forms of evidence have been deemed as scientifically invalid but are still permitted in the courts. These include: (1) bullet leads, (2) fire and bloodstain patterns, (3) bite marks, (4) shoe prints, and (5) hair matching. It is also deeply important to study other forms of forensic evidence to ensure that they are in fact scientifically valid. So called “experts” should not be able to declare a match that is not corroborated by other scientifically valid evidence.

Prosecutors should actively fight to end the death penalty. It has been applied to those with intellectual disability, the mentally ill, teenagers, and those who have experienced childhood trauma. Capital punishment is deeply flawed, terribly expensive, and applied in a discriminatory manner.

There is a bipartisan desire for the reduction of spending on corrections. Prosecutors sometimes impose prison sentences without costing their own jurisdiction because states often fund prisons while counties often fund jails and prosecutors’ offices. This prevents prosecutors from being held accountable for useless or unnecessary spending. There should be efforts to find alternatives to incarceration and incorporate those into plea offers and sentencing recommendations. The cost of incarceration may also be announced at sentencing for the judge’s consideration. Additionally, coordination with legislators is a viable option for reducing budgets for corrections.

Labeling those with a criminal conviction is incredibly dangerous. Terms like “convict”, “ex-convict”, and “felon” dehumanize individuals which can lead to higher rates of recidivism. This also deters the ability for rehabilitation because of negative stereotypes about those who may have found themselves engaged with the criminal justice system.