Prosecutorial Reforms and Challenges Prosecutorial Reforms: What are some of the challenges prosecutors face? Please use the research article linked below. ? Instructions

Original Article

Tempering Expectations: A Qualitative Study of Prosecutorial Reform

Rebecca Richardson 1

and Besiki Luka Kutateladze 1

Abstract Objectives: We investigate path dependence and barriers to the acceptance and implementation of reform-minded prosecution, which focuses on reducing unnecessary incarceration, promoting fairness, engaging with the community, and improving accountability in the criminal justice system. Method: Using semistructured interviews with 47 prosecutors in two Flor- ida jurisdictions, both with newly elected state attorneys, we explore reform-minded prosecution priorities and barriers to their effective imple- mentation. Results: Findings suggest that though reform-minded priorities are present in the study prosecutor’s offices, existing prosecutorial norms, case-focused decision-making, policy ambiguities, and communication chal- lenges serve as barriers to their effective implementation. Conclusions: The study highlights the role that line agents play in determining the success of reform-minded prosecution. It also identifies key barriers to reform that

1 Department of Criminology and Criminal Justice, Florida International University, Miami,

FL, USA

Corresponding Author:

Rebecca Richardson, Department of Criminology and Criminal Justice, Florida International

University, 11200 SW 8th Street, MARC 270, Miami, FL 33199, USA.

Email: [email protected]

Journal of Research in Crime and Delinquency

1-33 ª The Author(s) 2020

Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/0022427820940739

journals.sagepub.com/home/jrc

reform-minded prosecutors must overcome if they are to achieve mean- ingful changes toward greater effectiveness, transparency, and impartiality in prosecution.

Keywords prosecution, courts, criminal justice reform, qualitative research, research methods

The criminal justice system has experienced myriad reforms in recent

decades. Judicial sentencing decisions have been scrutinized and deemed

grossly inconsistent, triggering the proliferation of sentencing guidelines,

mandatory minimums, and other sentencing innovations designed to curb

discretion (Ulmer 2012). Police use of force has received even more atten-

tion, leading to civilian and government oversight mechanisms (Fyfe 1988).

Prosecution, on the other hand, has undergone remarkably little evolution.

Its core principles have remained virtually unchanged, as have its relation-

ships with other court actors, mechanisms for public accountability, and

often case management systems (Forst 2002; Frederick and Stemen 2012).

Now, the status quo in prosecution may be changing. Legal scholars and

policy experts note that prosecutorial elections are becoming more publi-

cized, and “tough-on-crime” rhetoric has begun taking a backseat to the

ideals of decarceration, equality, and community well-being in campaign

platforms (Aleem 2015; Balko 2018; Simon 2017; Sklansky 2017). Such

changes are reflected in recent waves of prosecutorial campaign promises

and are shaping new cohorts of elected prosecutors. A new brand of pro-

secution is emerging, one in which prosecutors promote reforms designed to

reduce incarceration, promote fairness, focus on the community, and

improve prosecutorial and police accountability (Bazelon and Krinsky

2018; Jackson 2019). These ideals may represent a shift in priorities and

a new direction for criminal justice and prosecution.

However, the extent to which reform-minded priorities are understood

and implemented in the prosecutor’s office is, at present, not well-

understood. Historically, criminal justice institutions have exhibited strong

path dependence, resisting reforms and maintaining momentum for punitive

justice policies (Beckett, Reosti, and Knaphus 2016). Both external and

internal factors bolster existing policies and make change increasingly dif-

ficult. The literature documenting organizational inertia and barriers to

reform in criminal justice agencies is robust (Berman and Fox 2010). With

2 Journal of Research in Crime and Delinquency XX(X)

this in mind, it is important to evaluate whether or not, and what kind of,

barriers stand in the way of reform-minded prosecution.

Qualitative research affords us a unique opportunity to engage in semi-

structured discussions with line prosecutors, where (1) respondents are able

to articulate their thought processes without the restraint of a close-ended

format, (2) face-to-face interactions allow researchers to gauge emotional

responses and better navigate difficult discussion topics, and (3) researchers

can ask follow-up questions to clarify previous responses. We asked line

prosecutors in two Florida jurisdictions—Tampa and Jacksonville—about

the goals and priorities in their offices, individual prosecutor and office

success, and areas for reform in the office and criminal justice system. Both

jurisdictions in the study have newly elected reform-minded state attorneys,

making this work particularly useful for understanding opportunities for and

challenges to implementing meaningful reform in prosecution.

Path Dependence in the Criminal Justice System

Perspectives on institutional path dependence provide a useful context for

exploring prosecutorial change. Social and political policies tend to follow a

self-reinforcing path that, as time progresses, makes changing direction

more difficult (Mahoney 2000; Pierson 2000). Positive feedback loops

strengthen policies and their supporting institutions and generate a pattern

of increasing returns, which progressively raises the social, political, and

financial costs of reforms. To our knowledge, prosecutorial policy has not

been examined from a path dependence perspective, but sociolegal scholars

draw on it to understand the perpetuation of mass incarceration and explain

why system-wide criminal justice reforms often fall short of their intended

effects (Beckett 2018; Dagan and Teles 2014). Rising fiscal costs, demands

for social equality, and bipartisan support for reducing incarcerated popula-

tions are driving policy makers, practitioners, and the public at large to

reconsider punitive criminal justice policy. However, penal institutions

mount formidable defenses against policy change. As a result, scholars such

as Beckett et al. (2016:240) note “considerable evidence that the criminal

justice zeitgeist is in flux and that meaningful criminal justice reform is

under way” while simultaneously observing that institutional processes

make reform substantially more difficult.

Many of these institutional processes occur externally to individual crim-

inal justice agencies. For example, punitive policies skew political power

toward interest groups that promote those policies’ continuation (e.g.,

Gottschalk 2015; Page 2011; Thorpe 2015). The entrenchment of

Richardson and Kutateladze 3

coordination efforts among law enforcement and correctional agencies pro-

tects the system from single-agency changes to punishment and surveil-

lance strategies (Weaver 2012). Penal ideologies and rationalizations adapt

to reflect contemporary discourses without sacrificing traditional punitive-

ness as a core objective (Beckett et al. 2016). These external forces amplify

organizational inertia and hurdles to policy change within individual crim-

inal justice institutions.

Barriers to the Implementation of Criminal Justice Reform

Literature from the management and implementation sciences highlights

characteristics of organizational environments that promote path depen-

dence and make effective policy change more challenging. Within the

organizational context of criminal justice, factors such as chains of com-

munication, mechanisms for coordination, centralization, executives’ orien-

tation toward change, and use of technology contribute to how easily new

innovations are implemented (Allen 2002; Brennan 1999; Darroch and

Mazerolle 2013). Prior work likewise demonstrates the potential for the

content, clarity, and delivery of policy reforms themselves to impact imple-

mentation success. For example, initiatives with too broad or imprecise a

scope are susceptible to misapplication, as justice actors interpret them in

widely varying ways or fail to understand how they can be incorporated into

existing protocols (Cissner and Farole 2009; Taxman and Belenko 2012).

Policies that increase practitioners’ workloads lose support or become

infeasible in practice (Feeley 1973; Taxman and Gordon 2009).

Equally pertinent to the efficacy of top-down reform is the critical role

that individual actors play in implementing organizational policy changes.

More than simple “translators” of new policy initiatives, line agents in the

justice system maintain a central role in interpreting directives and adapting

them to fit the micro-level contexts in which decisions are made (Lynch

1998; Rengifo, Stemen, and Amidon 2017; Rudes 2012). Scholars have

taken care to understand the dynamics of these performative environments,

noting the profoundly endogenous process in which justice policies are

shaped by the very individuals they are intended to govern (Edelman,

Uggen, and Erlanger 1999; Verma 2015). The molding of policy directives

by supervisors and line agents can be advantageous in bureaucratic systems

where executives are far removed from the realities of day-to-day opera-

tions, but it can also prove detrimental to the success of reform initiatives.

4 Journal of Research in Crime and Delinquency XX(X)

Challenges to the implementation of top-down criminal justice reforms can

dramatically weaken their impact (Berman and Fox 2010).

Sitting at the nexus of policy-making and operational activities in their

organizations, mid-level supervisors are particularly well-positioned to

influence policy through their interpretation of directives, communication

with subordinates, and monitoring of implementation (Livian and Burgoyne

1997; Lynch 1998). Expressions of resistance from this management group

heavily contour the legitimacy, execution, and underlying logics of new

policies. To illustrate, Lynch (1998) found that field parole supervisors

subverted new demands by adjusting standard informal policies to meet

the technical requirements but not the broader goals of new risk classifica-

tion policies. Other ethnographic work on the California parole system

similarly identified differences among middle managers’ interpretative

frames as an important cause of the failure of statewide parole reform

efforts (Rudes 2012). The line agents responsible for directly implementing

new reforms likewise have ample opportunity to weaken their efficacy. For

example, Viglione, Rudes, and Taxman (2015) observed probation officers

responding to the introduction of a risk-needs assessment tool by ‘going

through the motions’ without altering underlying decision-making, reduc-

ing the utility of the tool. Other researchers have documented judges resist-

ing reforms by shifting responsibility to other actors (Clair and Winter

2016), exploiting loopholes and safety valves to move cases outside their

purview (Lynch and Omori 2014; Schulhofer and Nagel 1989, 1996), and

simply ignoring them (Feeley and Kamin 1996).

We contribute to prior work on path dependence and barriers to criminal

justice reform implementation by further considering how the cultural and

procedural dynamics of criminal justice organizations each challenge pol-

icy change in the prosecutor’s office, a bureaucratic institution with long-

standing opacity and organizational inertia. As we explore how prosecutors

understand and implement reforms initiated by their newly elected leaders,

we highlight the role that line prosecutors play in determining the impact of

path dependence and the success of the reform-minded prosecution

movement.

Prosecution, Old and New

Prosecutorial policy has remained unified and stable for decades. Tasked

with serving as public advocates in an adversarial justice system, prosecu-

torial offices have traditionally represented society’s worries about public

safety and embodied its tough-on-crime sentiments (Barkow 2009). Many

Richardson and Kutateladze 5

prosecutors have maintained a working personality characterized by a

conviction psychology: a set of attitudes toward defendants, the judicial

system, and the role of the prosecutor that elevate conviction and punish-

ment as the most important goals of prosecution (Felkenes 1975; Fisher

1988). Historically, this conviction psychology has been the institutional

trademark of prosecution. To illustrate, Alschuler (1968) identified high

consistency in prosecutors’ role perceptions, with many perceiving them-

selves as administrators tasked with efficient case disposition and advocates

aiming to maximize convictions and sentence severity. Jacoby (1980) simi-

larly identified paradigms of prosecutorial charging, all of which center on

the sufficiency of evidence for achieving conviction. For decades, prose-

cutorial candidates have tended to construct very law-and-order platforms

to appeal to voters, advertising high-profile trials and hard-nosed

approaches to prosecution (Gordon and Huber 2002; Wright 2009).

Now, the United States has seemingly arrived at the precipice of a new

era for prosecutors. Calls for smart-on-crime policies have gained bipartisan

traction, putting pressure on the criminal justice system to explore alterna-

tives to incarceration and increase both precision and consistency in the

administration of justice (e.g., Holder 2014). Campaign promises among

many newly elected prosecutors reflect these goals (Fairfax 2012; Harris

2009; Simon 2017). Several tough-on-crime incumbents have been ousted

by newcomers touting data-informed smart-on-crime reforms (Bazelon and

Krinsky 2018; Jackson 2019; Sklansky 2017). We note that these newly

elected reform-minded prosecutors often emphasize one or more of four

goals: reducing incarceration, fairness in prosecution, focusing on the com-

munity, and accountability. While many of these ideas have floated around

the criminal justice literature for decades, practitioners in general, and

prosecutors in particular, have only recently begun embracing them.

First, prosecutorial rhetoric has increasingly reflected the need to reduce

incarceration. Faced with overcrowded correctional systems and the other

financial, social, and moral costs of mass incarceration (Clear and Frost

2015; Travis, Western, and Redburn 2014), many reform-minded prosecu-

tors advocate for less incarceration and more diversion programs and treat-

ment options. For example, Harris County (TX) District Attorney Kim Ogg

instituted a marijuana diversion program, and Philadelphia (PA) District

Attorney Larry Krasner issued a directive to stop requesting cash bail for

many low-level offenses (Brownstein 2018; Sasko 2018). A second hall-

mark of the new prosecution strategy is fairness in case processing. An

abundance of research suggests that criminal justice processing can affect

disproportionately harsh outcomes for certain sociodemographic groups

6 Journal of Research in Crime and Delinquency XX(X)

(Mitchell 2005; Spohn 2000; Ulmer 2012). The topic of unwarranted dis-

parities has also moved toward the forefront of public discourse about the

criminal justice system (Roberts and Stalans 2000), leading prosecutors like

Denver (CO) District Attorney Beth McCann and Brooklyn (NY) District

Attorney Eric Gonzalez to stress the importance of fair prosecution and

addressing inequality (Chammah 2016; Feuer 2016).

Third, prosecutorial reforms have emphasized focusing on the commu-

nity and adopting problem-solving approaches to prosecution. Rather than

simply processing and ensuring punishment for each case independently,

prosecutors seek to reduce and prevent crime through building connections

with the communities they serve (Levine 2005). Baltimore City (MD)

State’s Attorney Marilyn Mosby’s and Henry County (GA) District Attor-

ney Darius Pattillo’s campaigns provide clear examples of this theme,

frequently emphasizing community outreach, community-based program-

ming, and proactive crime prevention efforts (see Fenton 2017; Prince

2017). Finally, prosecutors are placing a renewed emphasis on accountabil-

ity. With few checks on their discretion, prosecutors’ offices have long been

plagued by issues of both prosecutorial and police misconduct (Sklansky

2018). In response, many reform-minded prosecutors pledge to maintain

more transparent administrations by more readily sharing data with the

public as well as by examining data themselves and embracing its role as

a means of intra- and inter-office oversight. For instance, Nueces County

(TX) District Attorney Mark Gonzalez’s campaign focused heavily on

increasing transparency and reducing prosecutorial misconduct (Barajas

2017), and Cook County (IL) State’s Attorney Kim Foxx promised both

police accountability and greater data openness in order to regain public

trust in her office (Schmadeke 2016).

These four themes—reducing incarceration, promoting fair prosecu-

tion, focusing on the community, and increasing accountability—emerge

in many modern reform-minded elected prosecutors’ platforms and can be

used as a framework for organizing the new brand of prosecution. The

increasing frequency with which reform-minded prosecutors are voted into

office suggests that such platforms enjoy substantial public support (Simon

2017). However, as Sklansky (2018) notes, it is unclear whether this fledg-

ling wave of reform will permanently change the fabric of prosecution and

meaningfully improve the criminal justice system. Recent news articles and

legal scholarship have clearly demonstrated that changes in prosecution are

happening. Yet, measuring reform implementation is an empirical under-

taking that requires social science intervention to document reform pro-

cesses, identify challenges to reform, and provide recommendations to

Richardson and Kutateladze 7

improve reform implementation and maximize impact. Social scientists,

however, have been slow to examine prosecutorial reform, leaving scholar-

ship largely theoretical. This article aims to begin bringing data into pro-

secutorial policy discourse.

The Current Study

Shifts in elected prosecutors’ priorities toward ideas such as alternatives to

incarceration, fairness, community engagement, and accountability have

the potential to meaningfully transform the criminal justice system. Yet,

the fulfillment of these reform ideas may depend on understanding and

support from line prosecutors, who turn their electeds’ policies into prac-

tices. It is line prosecutors and their supervisors who use discretion to make

a multitude of decisions across the lifespan of each individual case, from

case screening to sentencing recommendation, that have profound influ-

ences on the administration of justice (Davis 2007).

In this study, we identify (1) the nature and scope of new prosecutorial

priorities and (2) potential barriers to reform-minded prosecution in the

offices of two newly elected prosecutors. The benefits of this exploration

are twofold. First, it contributes empirical insights about modern reform

movements to the criminological literature from within an understudied,

well-insulated criminal justice organization: the prosecutors’ office. Sec-

ond, characterizing barriers to prosecutorial reform provides potentially

valuable information to policy makers and practitioners seeking to promote

and implement meaningful change in the field of prosecution.

Data and Method

Data Collection

This investigation is part of a larger research and technical assistance proj-

ect on efficiency, effectiveness, and fairness in prosecution. 1

The data come

from in-person interviews conducted in May–June 2018 with 47 line pro-

secutors from the Offices of the State Attorney for the Fourth Judicial

Circuit of Florida (Jacksonville) and the Thirteenth Judicial Circuit of Flor-

ida (Tampa). Both of these offices have elected prosecutors, a Republican

and a Democrat, respectively, who assumed office in January 2017 after

running on platforms touting reforms to increase fairness, public safety,

transparency, and the use of data (e.g., Chammah 2016; Sklansky 2017).

Serving midsize urban jurisdictions, the two offices have comparable num-

bers of line staff: the Fourth Circuit’s office has 116 line prosecutors, while

8 Journal of Research in Crime and Delinquency XX(X)

the Thirteenth Circuit has 130. For both prosecutorial offices, doing this

research was a new exercise, as neither office previously had any experi-

ence partnering with researchers or discussing these subjects.

The two offices in this study also share greater structural similarity than

most. Each office has approximately 10 trial divisions, each managed by a

division chief. Each division is assigned to a particular judge and court-

room. Misdemeanor and felony offenses are handled by separate groups of

prosecutors and judges. Virtually all cases reach the offices through a

referral from law enforcement, and both offices report positive working

relationships with local law enforcement, the defense bar, and the judiciary.

The biggest difference between the two offices is their early case assess-

ment procedure. The Tampa office has a dedicated unit that screens cases

and makes filing decisions before handing off the cases to trial attorneys,

while Jacksonville trial prosecutors largely screen their own cases.

Respondents in both offices were selected using a stratified random

sampling technique. First, we received a complete list of prosecutors

employed in each office as of May 2018, organized from most to least

senior. Next, we stratified these lists into quartiles to ensure that prosecutors

at all levels of the office (particularly at managerial levels) would be rep-

resented in the sample. Finally, we randomly selected 25 prosecutors and 15

alternates from across those strata in each office. The 25 selected prosecu-

tors were sent an individualized e-mail inviting them to participate in a

formal in-person interview and offering them various time slots over a

three-day period for the interview. One follow-up e-mail was sent, and

prosecutors who declined to participate or did not respond were not con-

tacted again. Instead, alternates were e-mailed using the same initial and

follow-up e-mail protocol. In Jacksonville, 38 prosecutors were ultimately

invited to participate and 25 interviews were completed (response rate ¼ 66 percent). In Tampa, 38 prosecutors were invited to participate and 22 inter-

views were completed (response rate ¼ 58 percent). Interviews were conducted face-to-face in private meeting spaces at the

offices and lasted between 40 and 75 minutes. Each interview involved two

researchers. Interviews were led by a senior researcher experienced in

prosecutorial data and engagement with line prosecutors, while a research

assistant typed detailed notes distinguishing direct quotes from summary

descriptions. Having two researchers at each interview was deemed neces-

sary to avoid overwhelming a single interviewer with engaging in a mean-

ingful discussion while taking meticulous notes. A semistructured interview

format allowed the tone of the interviews to be conversational, so that

respondents could respond directly to our questions but also introduce new

Richardson and Kutateladze 9

topics into the interview. To encourage candid responses on controversial

topics, the interviews were not audio-recorded. 2

At the beginning of each

interview, respondents were asked to read a consent statement detailing the

purpose of the interview and assuring confidentiality. 3

Interview questions

were designed to guide discussions in several areas: priorities of the prose-

cutors’ office, prosecutorial success, incarceration, racial and ethnic dispa-

rities, community engagement, and areas for reform. 4

Analytic Strategy

Data were analyzed using NVivo (2015) Version 11. We began the analysis

with the intention of identifying office priorities and barriers to the imple-

mentation/fulfillment of those priorities. Given that public discourse has

already highlighted various tenets of reform-minded prosecution, we used a

directed qualitative content analysis (QCA) approach to examine office

priorities (Hsieh and Shannon 2005). Directed QCA allowed us to use

existing theoretical concepts, in this case, the four tenets of reform-

minded prosecution, as the starting framework for identifying office

priorities and barriers to their implementation. Four coders first read all

interview notes in their entirety and independently conducted line-by-line

coding of all data to establish lists of concepts and themes related to our two

main areas: new priorities in the offices and challenges associated with the

implementation of those new priorities. Interview notes were then reviewed

again, and all relevant themes were compiled into a single exhaustive list. In

instances where there was initial disagreement about whether a particular

theme was present, interview notes were revisited until the group arrived at

a consensus. This secondary coding procedure resulted in the refinement of

many themes. For example, the initial theme of “prosecutorial discretion as

a new priority” was refined to specifically address how discretion is

expected to be used (i.e., to achieve case-appropriate outcomes and better

reach existing office goals). Basic frequency data were used to clarify the

strength of the themes identified.

Because the interviews were part of a larger investigation into prosecu-

tion, not all themes identified were relevant for this study (e.g., how to

assess efficiency in prosecution). Those themes were removed from the

analysis. Themes related to the nature and scope of new priorities were

identified, and themes related to policy implementation barriers were orga-

nized into broad categories that the research team jointly believed best

reflected the types of barriers identified. For instance, we organized (1)

missing criteria for what constitutes fair decision-making, (2) line

10 Journal of Research in Crime and Delinquency XX(X)

prosecutors’ beliefs that community engagement has no purpose, and (3) a

lack of clarity about when community engagement should occur into a

single category, “policy ambiguity,” that represents the incomplete articu-

lation of aims and implementation strategies for reform-minded priorities.

As the final step in the analysis, quotes that best represented the results

were selected to illustrate how prosecutors speak about these themes in their

own words. These procedures yielded a rich set of themes that sheds light on

how prosecutors understand their offices’ goals and priorities and how both

the structure and culture of prosecutor’s offices may hinder the advance-

ment of reform-minded prosecutorial priorities.

Participant Characteristics

Study participants were diverse. Respondents were 55 percent (n ¼ 26) non- Hispanic White, 15 percent (n ¼ 7) Black, 19 percent (n ¼ 9) Hispanic, 4 percent (n ¼ 2) Asian, and 6 percent (n ¼ 3) mixed race or other. Compared to the 246 full line staff in the two study offices, White prosecutors were

underrepresented, while Black and Hispanic prosecutors were overrepre-

sented in the sample. 5

Seventy percent (n ¼ 33) were female, also making female prosecutors overrepresented in the sample compared to the two

offices’ full line staff. Participants’ ages ranged from 26 to 56, with a mean

age of 38.8 years, and they had between 1 and 34 years of prosecution

experience, with a mean experience length of 10.2 years. Seventeen percent

(n ¼ 8) had previous experience as a defense attorney. Twenty-three per- centage of the sample (n ¼ 11) were serving in

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