The Vera Institute of Justice has produced a series of reports and podcasts which take a look at the ‘how’ and ‘why’ behind prosecutorial decision-making.
Here is a synopsis of the series from Vera’s website:Prosecuting attorneys enjoy exceptionally broad discretion in making decisions that influence criminal case outcomes. They make pivotal decisions throughout the life of a case with little public or judicial scrutiny. With support from the National Institute of Justice, the Vera Institute of Justice undertook research to better understand how prosecutors make decisions. Vera researchers combined statistical analyses with qualitative analyses, examining initial case screening and charging decisions, plea offers, sentence recommendations, and post-filing dismissals for multiple offense types in two moderately large prosecutors’ offices. In addition to a technical report, the study produced a summary report and four podcasts.
The podcasts and reports were published in December, 2012 and are available by following the link above.
Vera’s summary report says their researchers found that prosecutors’ decisions were guided by two basic questions: “Can I prove the case?” and “Should I prove the case?”The former question was most influential at the outset of a case, at initial screening and charge filing, when an objective assessment of the evidence was the dominant factor in moving cases forward. Later, other case-level factors—such as the seriousness of the offense, the defendant’s criminal history, and characteristics and circumstances of the defendant and victim—assumed an increasing degree of influence as prosecutors evaluated whether a case should go forward.
Concerning the governance of prosecution offices, the study found that “contextual constraints—rules, resources, and relationships— sometimes trump evaluations of the strength of the evidence, the seriousness of the offense, and the defendant’s criminal history.”Chief prosecutors and criminal justice policy makers should be alert to the potential for contextual factors to influence and possibly distort the exercise of prosecutorial discretion.
While the focus of the research was to track the interaction between prosecutorial discretion and how cases move through the criminal justice system, it is obvious that some of the external pressures identified by the study as influencing prosecutorial discretion would feed into prosecutors’ decisions about how to conduct themselves and their prosecutions in the course of handling a particular case.