Academic journal article Albany Law Review

Confronting the Elephants in the Courtroom through Prosecutor Led Diversion Efforts

Academic journal article Albany Law Review

Confronting the Elephants in the Courtroom through Prosecutor Led Diversion Efforts

Article excerpt


Prosecutors are in a unique and powerful position to influence and create change through innovative approaches to law enforcement. By focusing on the goal of reaching a case disposition based on public safety instead of case disposal, prosecutors can reduce the possibility of false guilty pleas and reduce the collateral consequences of criminal justice system involvement. This article examines how prosecutor use of pretrial intervention efforts, like locally tailored diversion programs and specialty courts targeted at misdemeanor offenses, are useful for achieving those purposes. Pretrial diversion strategies, which are largely not possible without the buy-in of prosecutors, have been shown to address prosecutorial concerns about efficient and smarter ways to promote public safety, functioning communities, trust in the judicial system, streamlining resources, and reducing other collateral consequences of legal involvement--all by way of programing occurring at the initial stages of the criminal justice process. (1) These innovative strategies are designed to be community-based, which prosecutors believe and evidence-based research has shown will have the positive impact of bringing people on the margins of society--who are involved in the criminal justice system due to misdemeanor offenses--back into mainstream life as productive members of society. (2) Prosecutor involvement with strategic and innovative diversion efforts allows for a reduction in the possibilities of guilty pleas and a wide variety of criminal justice system collateral consequences. (3)


With millions of misdemeanor cases appearing yearly on dockets across the country, the criminal justice system is challenged to handle these cases with fairness, equity, and economy. Prosecutors and other criminal justice stakeholders are tasked with using their roles in the system to carry out their specific functions with the same fairness, equity, and efficiency. (4) However, with the scales of justice heavily weighted by low-level criminal offenses, it is necessary to treat those offenses more circumspect in light of what studies and scholarship has shown indicates a significant systemic malfunction, which causes an inordinate amount of guilty pleas and threatens individuals, communities, public trust in the judicial system, and the effectiveness of the system to provide substantive and normative sanctions and restorative justice. (5) Refining the criminal justice system's approach to the millions of misdemeanor cases involves multiple justice stakeholders collectively engaging innovative approaches to prosecution. This article will focus on structural reforms, which recognize social vulnerabilities lead to cycles of criminal activity and that opportunities to influence and reward behavioral change can reduce the numbers of guilty pleas in situations where a plea or a lengthy jail sentence (with all their collateral consequences) may not be the best outcome for public safety and justice.

A. Misdemeanors by the Numbers

The actual number of misdemeanor cases that are brought or heard per year is unknown. According to a report by the National Association of Criminal Defense Lawyers, in 2009 there may have been approximately 10.5 million non-traffic misdemeanor cases nationally, based on a rate extrapolated from a survey of twelve states. (6) There is a variety of data available from the federal government and some state jurisdictions about various aspects of the misdemeanor cases that they receive per year. However, that information is scattered, lacks standardization and consistency, and most of that information must still be compiled and analyzed to establish relevant misdemeanor data. Therefore, this article will rely on various scholarly and federal and state sources, as well as the purposes and goals of numerous pretrial intervention programs to assume that there is a high volume of misdemeanor cases nationally. …

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