Understanding the officer-prosecutor divide
Conflict between officers and prosecutors is indicative of the inherent checks and balances in our criminal justice system
A perception difference exists between officers and prosecutors on what makes a good case. For example:
• Police are often concerned that the prosecutor’s priorities may be different than public safety demands — prosecutors worry that more arrests may only increase their workload without contributing to community justice
• Police grumble that inexperienced prosecutors don’t understand law enforcement’s immediate needs — prosecutors may fault the police for poorly or hastily written warrants
The difference should be expected. Police officers work with guidelines of probable cause while the prosecutor’s office works within the standard beyond-a-reasonable-doubt standard. The gulf between these two is often wide and deep. Understanding how prosecutors make case decisions is important for officers if they are to maintain a healthy perspective about their role in the criminal justice system.
This chasm between officer and prosecutor can be more personal and pronounced in smaller jurisdictions where officers and prosecutors have a close working relationship and are often on a first-name basis. With smaller call loads, officers become acutely aware of how prosecutors dispose of each case they handle.
For prosecutors, disposition options are relatively straightforward:
1.) drop the charges (a choice often viewed by the public as “proof” that the police make “bad” arrests and by the police as evidence of misdirected prosecutors)
2.) engage in plea negotiations
3.) litigate in court
Most of those charged will never get to trial. Press reports and Bureau of Justice Statistics suggest that federal prosecutors decline to prosecute anywhere from 11 to 70 percent of referred cases. 1 These numbers vary based on the year the data were collected, the crime, prosecutorial priorities, and other variables.
Gathering similar data for the more than 2,000 local prosecutor offices is more difficult. Voters rarely expect the same onerous record keeping from local prosecutors that Congressional oversight demands of federal prosecutors.
Experts also believe that 90 to 95 percent of all cases are plea bargained. These statistics on prosecutorial discretion suggest what one legal scholar has already noted: “Prosecutors occupy one of the most powerful positions in the criminal justice system. The discretion they have to prosecute cases or reject them gives them more control over the fate of those accused of a crime than a judge or jury.” 2
Two recent studies have attempted to shed some light on how prosecutors make case decisions.
The first, conducted by legal scholars Marc L. Miller and Ronald F. Wright, is entitled “The Black Box” and is based primarily on data collected from New Orleans, Louisiana, one of the only jurisdictions to keep extensive records on internal prosecutorial decision making. 3
At the risk of simplifying an otherwise complex study, Professors Miller and Wright persuasively argued that an “internal legal and social order in the prosecutor’s office” set the tone for prosecutorial decisions. These inherent “social norms” reflect the interaction between “substantive criminal law, the declared priorities of the elected chief prosecutor, and from other legal sources; resource limits and courtroom …expectations…”
Three categories accounted for more than 80 percent of declined cases:
• Prosecutors declined 38 percent of cases because they were pursuing other charges
• Evidentiary problems accounted for 26 percent of the declinations
• Victim “concerns” accounted for 18 percent of the declinations
For the record, police error (no probable cause for the arrest or search-and-seizure violations) accounted for only 4.35 percent of the declinations.
The second study suggests that a prosecutor, when deciding whether to take a case to trial or aggressively pursue a plea agreement, may not be able to make a realistic assessment of success.
This study, “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes,” was published in 2010. 4 The study measured not only expected case outcomes, but the attorneys’ confidence factor in achieving those outcomes, which is the most crucial variable in shaping decisions whether to litigate or settle a case.
What the study found was that “[l]awyers may underestimate or fail to appreciate the extent to which situational factors (e.g., unpredictable judges or juries) may rob them of the ability to control the outcome.”
In an interesting twist, when prosecutors were less confident of case outcomes, they may have “underpredicted their chances of success.” This conclusion is similar to one made by Professor Wright, who believes that “prosecutors who refuse a lot of cases could be giving up on them too soon or improperly screening them…” 5
This last point suggests that prosecutors should take a more measured look at their cases and worry less about their predicted success and instead allow the public and community to set the standards at trial. Anything less could reflect what Wright and Miller believe could be “serious tensions or lack of coordination” between law enforcement and the prosecutor’s office.
Though disheartening, none of this means that law enforcement officers should second-guess arrests in light of the often unpredictable results of the exercise of prosecutorial discretion. This part of our legal system works, surprisingly, only if the gulf between probable cause and beyond a reasonable doubt exists. The Supreme Court noted this in Brinegar v. United States, 338 U.S. 160, 174 (1949):
Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. …
However, if those standards were to be made applicable in determining probable cause for an arrest or for search and seizure … few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end.
Officers should learn about prosecutorial declination guidelines and closely monitor how often the crimes of which defendants are convicted match up with the offenses with which they were initially charged. Local law enforcement and prosecutors should also develop common goals for persistent or particularly egregious offenses. For example, joint strategies for combating domestic and family violence have proven to be both popular and effective in some jurisdictions in balancing public safety and community justice.
Ultimately, the conflict and disagreement between officers and prosecutors reflect the checks and balances inherent in our criminal justice system. Law enforcement professionals just work closely with their prosecutors if they are to gain a better understanding of the reasons for prosecutorial decisions.