Prosecutors and National Security

This chapter examines the distinct operational and ethical challenges that prosecutors face in national security and especially terrorism cases. The second part of this chapter focuses on the operational challenges that prosecutors face. These include demands for specialization that may be difficult to fulfill given the relative rarity of national security prosecutions; the availability of special investigative powers not normally available in other criminal cases; exceptionally broad and complex offenses; and the demands of federalism and international cooperation. The third part examines ethical and normative challenges that run throughout the many operational aspects of the prosecutorial role in national security cases. These include the challenges of ensuring that often exceptional national security laws are enforced in a manner consistent with the rule of law and human rights. There are also challenges of maintaining an appropriate balance between legitimate claims of secrecy and legitimate demands for disclosure and between maintaining prosecutorial independence and discretion while recognizing the whole of government and whole of society effects of the many difficult decisions that prosecutors must make in national security cases.

Prosecutors and Sentencing

Prosecutorial decisions play an important, and sometimes a decisive, role in a defendant’s ultimate sentence. They begin with the selection of charges and may end with a recommendation on clemency or expungement of a criminal conviction. The influence of prosecutors over the sentence, therefore, is far more extensive than that of any other official. The charging decision sets the starting point for the sentence range. The prosecution tends to control entry into diversion programs that may spare an offender a criminal record after complying with a set of requirements. Plea bargains, which have become more frequent even in Europe’s civil law countries, usually focus on the type and scope of the criminal justice sentence. Mandatory minimum sentences, mandatory aggravators, and stacked charges provide prosecutors with overwhelming bargaining power, causing many defendants to waive their right to a trial. Judges tend to follow the parties’ agreements and impose the recommended sentence. In many states prosecutors routinely weigh in on parole decisions and determine whether to proceed against defendants for supervision violations. Even in clemency decisions, they frequently submit a recommendation.

The Necessity of Performance Measures for Prosecutors

Local prosecutors are responsible for 95 percent of criminal cases in the United States—their charging decisions holding enormous influence over the number of people incarcerated and the length of sentences served. Performance metrics are a tool that can align the vision of elected prosecutors with the tangible actions of their offices’ line attorneys. The right metrics can provide clarity to individual line attorneys around the mission of the office and the goals of their job. Historically, however, prosecutor offices have relied on evaluation metrics that incentivize individual attorneys to prioritize more punitive responses and volume-driven activity—such as tracking the number of cases processed, indictments, guilty pleas, convictions, and sentence lengths. Under these past approaches, funding, budgeting, and promotional decisions are frequently linked to regressive measures that fail to account for just results. As more Americans have embraced the need to end mass incarceration, a new wave of reform-minded district attorneys have won elections. To ensure they are accountable to the voters who elected them into office and achieve the changes they championed, they must align measures of success with new priorities for their offices. New performance metrics predicated on the goals of reducing incarceration and enhancing fairness can shrink prison and jail populations, while improving public trust and promoting healthier and safer communities. The authors propose a new set of metrics for elected prosecutors to consider in designing performance evaluations, both for their offices and for individual attorneys. The authors also suggest that for these new performance measures to effectively drive decarceration practices, they must be coupled with careful, thoughtful implementation and critical data-management infrastructure.

Disclosure, Security, Technology

Criminal disclosure rules in all common law jurisdictions are organized around the same sets of conflicting aims. Pre-trial evidence disclosure is essential to fair and accurate adjudication. Yet certain types of information, such as identities of undercover operatives and ongoing law enforcement surveillance, must be kept confidential. Beyond these tensions, disclosure practices face new challenges arising primarily from evolving technology and investigative tactics. This chapter describes divergent approaches across common law jurisdictions—especially among U.S. states—to these challenges and offers explanations for their differences. It also sketches the technology-based challenges that discovery schemes face and offers options, or tentative predictions about their resolution. Differences often turn on who decides whether to withhold information from the defense—judges or prosecutors—and when certain information must be disclosed. Broader disclosure regimes tend to put greater trust in judicial capacity to dictate or at least review hard questions about the costs, benefits, and timing of disclosure; narrower systems leave more power in prosecutors’ hands. Technology has multiplied challenges for disclosure policy by vastly increasing evidence-gathering tactics and thus the nature and volume of information. Disclosure rules adapted fairly easily to the rise much forensic lab analysis. But fast-growing forms of digital evidence is more problematic. Defendants may lack the time to examine volumes of video and technical resources to analyze other data; sometimes prosecutors do as well. The chapter identifies some possible solutions emerging through technology and law reform, as well as trend toward greater judicial management of pre-trial disclosure.

Prosecutors Post-Conviction

In recent years, the involvement of prosecutors in post-conviction proceedings has begun to change from a strictly adversarial to a more investigative and remedial posture. Particularly in the United States, prosecutors’ offices have taken the affirmative responsibility to conduct post-conviction investigations of closed cases. A growing number of exonerations occur because prosecutors themselves agree to review new evidence of innocence or locate it themselves. Prosecutors have created specialized conviction integrity units tasked with reviewing such cold cases. They have created units to conduct other types of audits and reviews to investigate systemic issues, including regarding forensic evidence and police misconduct. They have even, in some offices, conducted investigations of their own conduct. Although most offices may follow a traditional model in which work largely consists in defending final convictions, there has been a notable trend towards experimentation with reconception of the post-conviction role of prosecutors. This chapter describes each of those changes and describes their implications for post-conviction criminal procedure.

Prosecutors and their Legislatures, Legislatures and their Prosecutors

This chapter explores the often-pathological relationship between prosecutors and legislatures and considers fiscal pressure as an important antidote to the pathology. Institutional incentives between prosecutors and legislatures align in a way quite different than the classic separation of powers story. Rather, legislatures are well served to empower prosecutors as much as possible by making criminal law broad and deep. And with respect to substantive criminal law, prosecutors have been enormously empowered. Prosecutors are not merely passive recipients of such power but indeed actively lobby for it—often quite successfully. But fiscal pressures can provide a cross-cutting pressure for legislatures, particularly at the state level where many governments must balance their budgets. Thus, sentencing law sometimes finds legislatures refusing prosecutors’ requests for ever longer or mandatory minimum sentences because longer sentences are expensive; this is especially true where sentencing commissions provide legislatures with meaningful data on costs of particular proposals. Criminal procedure has recently found progressive prosecutors leading the way toward defendant-friendly reforms such as using unaffordable money bail less frequently and providing defendants with more discovery than is required by law. In these spaces, county prosecutors have provided laboratories of experimentation that led the way toward broader statewide reforms.

Hiring and Learning Strategies in Prosecution Services

The chapter provides a comparative overview of current hiring and learning strategies in prosecution services. It draws on empirical examples from all parts of the world. Specifically, the chapter compares the hiring of chief prosecutors and frontline prosecutors, it compares how learning is organized and carried out, and it describes and discusses the most significant individual methods of learning currently applied by prosecution services. The comparison shows some level of convergence of techniques and strategies. However, prosecution services continue to vary significantly in how they organize and carry out hiring and in how prosecutors learn. To some degree these variations reflect different levels of professionalization and legal accountability, but they also reflect the markedly different ideals, roles, and functions that drive prosecution services in different societies and legal cultures. These differences make for very different conditions under which new and better ways of hiring and learning can be implemented with a view to ensure qualified and legitimate prosecution services.

Community Prosecution and Building Trust Across a Racial Divide

Community prosecution seeks input from local groups to shape the priorities of the prosecutor’s office. Prosecutors who listen to the community aim to develop a relationship of trust between the community and the local prosecutor’s office; such outreach is especially valuable in connection with racial minority groups with a history of negative experiences with criminal justice actors. A community prosecution strategy calls for the office to work with community partners both upstream and downstream from the criminal courtroom. The upstream efforts involve diversion of defendants out of criminal proceedings and into treatment and accountability programs outside the courts. Downstream efforts include programs to promote the smooth re-entry of people returning to the community after serving a criminal sentence. Community prosecution is best accomplished in offices committed to collection and use of data, transparency, and accountability to the public.

Specialized Units and Vertical Prosecution Approaches

Legal scholars and social scientists maintain that there are several advantages to processing certain types of cases—for example, sexual assault, domestic violence, and crimes involving career criminals or gang members—using vertical prosecution and a specialized prosecution unit. This chapter discusses the logic of vertical prosecution and assignment of cases to specialized units. The chapter also summarizes the findings of research on the effectiveness of specialized units for handling sexual assault cases, domestic violence cases, and gang-related homicide, noting that the research conducted to date reveals that there are very few differences in the outcomes of cases prosecuted by attorneys assigned to specialized units and those prosecuted by attorneys not assigned to specialized units. The chapter concludes with a discussion of potential explanations for this lack of impact and with a call for additional research on these interrelated approaches to prosecution.

Victims and Prosecutors

This chapter explores crime victims’ experiences in U.S. trial courts in relation to the passage, application, and adjudication of state and federal victims’ rights legislation (VRL). It reviews victims’ current rights established through legislation and case law: to privacy, information, and notification; to be present; and to be heard in pre-trial hearings, in trials, in plea bargaining, and in victim impact statements. It reviews qualitative research documenting how and why prosecutorial discretion is often exercised to limit victims’ participation in trials and pleas, highlighting incentives for emotion management. It also reviews proposals, which are counter to this standard, designed to achieve greater victim participation and to produce higher quality testimony, including extensive pre-court preparation and courtroom intermediaries. It assesses the efficacy of practices to protect victims from secondary victimization in court, including shielding (close circuit video and screens) and support dogs. It explores use of private attorneys to (1) ensure that prosecutors and judges comply with VRL and (2) pursue victim-directed, private prosecution of sexual assault in the United States and elsewhere. It concludes that the promise of VRL—to provide therapeutic justice outcomes, achieve victim satisfaction, and enact procedural justice—is yet to be realized in the United States; however, an evidence-based approach toward prosecutorial practice would be advantageous for victims.