Presentation

The Prosecutors’ Office in Washtenaw County: Why you should care?

This is a web-based version of a powerpoint about the prosecutor’s office. Each heading is a new “slide” with our information from both the slides and notes included.

You can view the original presentation here:

Prosecutor’s Office Powerpoint

This “presentation” gives you the information you need to:

  • Learn the impact prosecutors have in the criminal justice system and on your neighbors and your community
  • Learn how your vote can help reform justice
  • Discuss experiences, concerns and suggestions about prosecutor performance
  • Help develop “People’s Standards for Prosecutors.”
  • Help shape the kind of prosecutor’s office you want for Washtenaw County

“Mass” Incarceration has Become a Major Problem

After remaining steady for a long time over the past 40 years the U.S. incarceration rate began to climb, so that it has now quadrupled.

Source: Patrick A. Langan, John V. Fundis, Lawrence A. Greenfield, and Victoria W. Schneider, “Historical Statistics on Prisoners in State and Federal Institutions, Year-End 1925-1986 and US Department of Justice, Bureau of Justice Statistics, “Data Collection: NPS Program,”

Crime Trends

Meanwhile, Crime has declined.

Source: Patrick A. Langan, John V. Fundis, Lawrence A. Greenfield, and Victoria W. Schneider, “Historical Statistics on Prisoners in State and Federal Institutions, Year-End 1925-1986 and US Department of Justice, Bureau of Justice Statistics, “Data Collection: NPS Program,”

There’s been a lot of national attention paid to mass incarceration, but the driver to incarceration happens locally. There are many people responsible for mass incarceration: from sensationalist media and tough-on-crime politicians, to our own ignorance and trust in officials. County prosecutors are hugely important in the number of people incarcerated as we shall show. 

Many of our prosecutors and other officials are stuck in the “tough on crime” mode. 

The number of prosecutors that try cases has risen 50% between 1990 and 2007, which may account for more prosecutions even though crime has fallen. (John Pfaff, “Locked In” p. 129)

They are wasting money and hurting our citizens.

The main point is that the incarceration rate has gone way up. The relationship between incarceration and crime is very complex. 

The fact that violence has gone done, yet the incarceration rate continues to go up I think is what some people find interesting/disturbing.

Here’s a quote from Rachel Barkow’sPrisoner of Politics p. 45 “While the increase in incarceration from the early 1970s to the early 1990s may be responsible for between 6% and 25% of the crime reduction in that period, the continued growth in prison expenditures in the 1990s had no statistically significant relationship with a reduction in violent crime.”  In fact, incarceration can increase the crime rate in some situations.

Here’s a quote from Marie Gottschalk’s book “Caught” p. 17, “We have long known that crime rates move up and down quite independently of punishment practices…..A 2014 National Research Council study concluded that the ‘increase in incarceration may have caused a decrease in crime, but the magnitude is highly uncertain and the results of most studies suggest it was unlikely to have been large.”

Lately, we have been letting more people out of prison yet crime is still going down.

Other countries, who incarcerate fewer people don’t have the level of violence that the U.S. does.

Role of Prosecutors

County Prosecutors in Michigan

  • Each county elects their prosecutor every 4 years.
  • The prosecutor hires assistant prosecutors and sets policies for his office. The Washtenaw County office has 26 assistant prosecutors, all full-time.
  • The county prosecutor works independently of the sheriff’s office and the county commission.

The Washtenaw County Commission sets the prosecutors’ office budget, but they choose not to interfere in how it is spent.

Power

  • Prosecutors exercise discretion at every stage of criminal proceedings,
  • How can Washtenaw voters evaluate the performance of their prosecutor?
  • Very little data is available.

The workings of the prosecutors’ office, except as reported by the media, are mostly hidden.

Prosecutors Role in Many Stages of the Criminal Justice System

  • Charging
  • Bail
  • Diversion
  • Discovery
  • Pleas
  • Sentencing

This is the way things currently are. This is the status quo.

  • After a person is arrested by the police the prosecutor can charge the person with a crime or let them go. 
  • The prosecutor decides what crime(s) to charge the person with.
  • The prosecutor can recommend that juveniles be waived to adult court.

The prosecutor can choose to charge:

–trespassing vs larceny vs breaking and entering

–aggravated assault vs. attempted murder

— both 1stand 2nd, degree murder, hoping one will stick

One event can result in multiple charges

–A bar fight can result in assault, drunken disorderly conduct and resisting arrest

— Using a computer or a gun while committing a crime can result in additional charges. 

—-Receiving pornography and possessing pornography

Each charged crime has a range of possible sentences associated with it, so indirectly the prosecutor is also choosing the possible sentence the person will face. Some crimes even have a mandatory minimum.

Juveniles 14 and older can be waived to adult court.

  • The prosecutor recommends the amount of cash bail, if any.
  • Cash bail penalizes poor people.
  • If a person cannot afford their bail, they wait in jail until their conviction or acquittal, which hurts their chances of being found innocent. 
  • 65% of people nationwide in jail have not been convicted of a crime.

The person must post bail in order to stay out of jail while their case is pending. 

The bail decision is actually made by a judge or magistrate, but they often accept the recommendation of the prosecutor. 

Sitting in jail is bad:  you can lose your job, house, children, etc. You can’t make money, or find a lawyer. This may make a person want to take a plea.

Coming into court from jail, a defendant doesn’t look as clean-kept. He or she may be in a prison jumpsuit or shackles. This can prejudice the judge. 

  • The prosecutor can recommend the person be diverted to a program that might be an alternative to incarceration.
    • drug treatment, mental health treatment, etc.
    • restorative justice
  • Successfully completing the program may result in the charges being dropped, or no longer facing imprisonment.

In Washtenaw County District Court there is: drug treatment, mental health treatment, veterans court. 

Diversion probably will have better results in preventing repeat behavior

Restorative Justice

Friends of Restorative Justice wants Washtenaw County to embrace restorative justice.

The person harmed and the person who caused the harm, along with a facilitator, decide how to repair it.

Retributive Justice asks:

–What law has been broken?

–Who did it?

–What do they deserve

Restorative Justice asks:

–What harm has been done?

–How can it be repaired?

This is a diversion to the traditional sentencing process.

It has been used in a limited capacity in Washtenaw County: juvenile drug court, schools instead of suspension and expulsion, Dispute Resolution Center to resolve conflicts among employees and neighbors.

Advantages of Restorative Justice

  • To those harmed 
    • A chance to be heard
    • Answers to their questions.
    • A sense of control
    • Satisfaction that the offender has taken responsibility
  • To the offender
    • Learn the harm of their actions
    • Must be accountable
    • Feel redeemed
  • To the community
    • Safer – recidivism less likely
    • Saves money

Survivors want: validation that what happened to them was wrong, not to be judged or blamed, answers to their questions, to tell their stories, confront their offender, let them know how they are hurt, a sense of control, access to resources to heal and be safe – both from the person who hurt them and elsewhere, the offender not to hurt anyone else. – From Danielle Sered “Until we Reckon” pp 23-30.

  • Discovery is sharing evidence with the other party
  • Prosecutors have the police as a resource for investigating the crime.
  • The defense attorney does not. 
  • Only evidence that the prosecutor considers favorable and significant to the defendant’s case needs to be shared.
  • A plea determines what charges the defendant is given.
  • 95% of defendants plead guilty rather than exercise their right to have a trial.
  • The prosecutor is completely in charge of the plea bargain process and this process has very little transparency.

95% of cases are resolved via plea bargaining – This is where the defendant pleads guilty to a lesser set of charges to avoid being tried in court for more serious charges. If a defendant pleads there is no jury trial. 

The prosecutor has complete discretion over what bargains to offer and what charges to threaten the defendant with. This is the “black box” within the “black box”.

Efficient = more crimes per courtroom

Why do we need efficiency? Because not enough money is spent on courtrooms and more acts are crimes now.

Prosecutors may bargain hardest when case is weakest, so they don’t “lose”.

Judge must decide to accept the plea bargain.

Very few cases go to a trial by a jury of their peers, one of the cornerstones of our constitutional judicial process.

  • The plea carries with it recommended sentencing.
  • If there is no plea, the original charges carry their own sentencing mandates or guidelines, and the prosecutor weighs in with his or her recommended sentence.

The prosecutor has great power in deciding a person’s sentence, whether the person pleads guilty or is convicted at trial. Although a judge actually decides the sentence, the prosecutor’s recommendation carries great weight, and the prosecutor’s choice of charges can control the judges latitude in sentencing.

Other Problems with Current Practices

Bias

  • Our current system disproportionately hurts poor people, the mentally ill, and minorities.
  • The national incarceration rate for blacks is 5 times as high as that of whites.
    • In Michigan that rate is 7 times as high!
  • 95% of elected prosecutors are white 
  • 86% of elected prosecutors are men.

We want prosecutors to be fair, that is un-biased.

The fastest growing sector of the prison population is women.

Diversity in our prosecutors office will help prevent bias.

Other Problems

  • Financial incentive  for the prosecutor to send defendants to prison because the state will pay.  If the defendant gets diverted or sent to jail, the county pays. 
  • It is adversarial, a “contest”, between two attorneys. 

One year in a Michigan prison costs about $35,000.

It’s about winning and not serving the justice needs of victim and offender.

Victims may feel left-out, un-healed, not have their questions answered, not understand the defendant’s motives or feelings.   Restorative justice brings the victim(s) into the process in a way that promotes healing and restoration.

Achieving change is difficult because lawyers who might run against an incumbent prosecutor may fear bad consequences  if they lose.

  • The victim is sidelined. It is a crime of the defendant against the state.
  • Prosecutors generally don’t keep statistics to allow one to measure fairness and effectiveness.

Juveniles

  • Friends of Restorative Justice observed juvenile court in Washtenaw County for 6 months. We found:
    • Children are charged with misdemeanors and felonies.
    • Children are sometimes incarcerated.
    • Children sometimes appear in court in prison garb and shackles.
    • Children often take a plea. Only 2% of 377 observed court proceedings led to trial.
    • There was racial disparity. 70% of the youth in court were Black, while Blacks make up 12% of Washtenaw County.

Juvenile court is uncannily similar to adult court.

Adam John Foss on Prosecutors

Adam John Foss, former Assistant District Attorney of Suffolk County, Massachusetts

Ways to do it Differently

  • In 2018, two district attorneys in Texas stopped charging people with misdemeanors for possessing small amounts of marijuana. 
  • In Harris County, District Attorney Kim Oggstarted sending people to drug education classes without arresting them or giving them a ticket.
  • Kim Oggalso ended jail time for small retail thefts. 
  • In 1976 Kentucky banned for-profit bail.
  • In 2011, Kentucky passed a law requiring judges to release pre-trial all individuals considered low and moderate-risk for reoffending or flight.
  • Following this success, the Kentucky Supreme Court instituted automatic pre-trial release for most non-violent defendants below a certain risk threshold.
  • New York just passed no cash bail law.
  • In Washington, D.C., a six-month diversion program, Alternatives to the Court Experience, serves teenagers who commit low-level offenses like vandalism and shoplifting.  Program coordinators develop plans that can include therapy, tutoring, mentoring, and school support.
  • In the program’s first two years of existence, more than 90% of participants were not rearrested. 
  • New York state lawmakers passed a major overhaul of laws dictating what evidence must be turned over to defendentsand when. Michigan has new civil and juvenile discovery rules to make discovery more timely for the defense. 
  • In 2016 Seattle Prosecutor Dan Satterberg introduced charging standards that caution against overcharging to obtain a guilty plea.
  • In 2018, Philadelphia District Attorney Larry Krasner instructed prosecutors in his office to make plea offers below the bottom end of the Pennsylvania sentencing guidelines for most crimes.
  • When sentencing guidelines call for a sentence of two years or less, Krasner instructed prosecutors generally to seek probation, another alternative to incarceration, or house arrest. 

Restorative Justice for Violent Crime

  • Research of restorative justice shows restorative justice can be an effective response to violent crime.
    • It can reduce recidivism by as much as 44%
    • It can help break cycles of violence.

Common Justice, a Restorative Justice Program

  • The District Attorneys in Bronx and Brooklyn approve violent felonies for this program
  • Victims and defendants must agree. 
  • A trained facilitator helps the parties:  address the impacts of the crime, their resulting needs, and, for the responsible party, his/her obligations.
  • The parties agree on remedies. Responsible parties also complete a violence intervention program.
  • Those who complete the program successfully do not serve the jail or prison sentences they would have faced otherwise.

What to Ask a Candidate for Prosecutor

  • What will you do to make our community safer?
  • How will you make the prosecutor’s office work fairly and equitably for everyone?
  • What data will you collect to show the prosecutor’s policies are working?