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How ‘Underground Justice’ Has Failed Americans

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In a series of recent interviews, prosecutors were asked what role they believe they play in reducing recidivism.

The most common answers:


“Not my job.”

And the few who said they did have a role indicated that harsher punishment was the way to lower recidivism.

The interviews, conducted for a forthcoming book I co-authored with Robert Pitman, “Confronting Underground Justice, ” make one thing painfully clear:  We need to change the thinking of prosecutors regarding the roles they can and should play if we want to fix our broken justice system.

We have spent upwards of $1 trillion dollars over the past 45 years in direct criminal justice costs and another $1 trillion on the war on drugs—an investment that has resulted in recidivism rates of nearly 85 percent for state offenders and nearly 45 percent for federal inmates.

I don’t see how anyone can spin that into a positive. There’s a clear consensus that the U.S. justice system is a massive failure.

Focusing on changing the culture of prosecutors is one way to turn this thing around.

Here’s why.

The prosecutor is the most influential individual in the justice system. He or she is the key player in plea negotiation—the way that over 95 percent of criminal convictions are achieved.

The combination of broad prosecutorial discretion and plea negotiation effectively makes prosecutors the judge, jury and sentencer in most criminal prosecutions.  Prosecutors determine who to prosecute, what to charge, who is guilty and of what—and they are instrumental in determining the sentence, either directly (through sentence bargaining) or indirectly (through charge bargaining).

While plea negotiation was developed as a way to manage crushing caseloads and dockets, it has become the fast track to criminal conviction and punishment.  Punishment is the currency of the plea deal.  Time in prison, jail or on probation is what is negotiated.  Punishment is what prosecutors know and therefore that is what is delivered.

The problem is that punishment does little to reduce crime and recidivism.

The majority of individuals who enter the justice system have a mental health problem, a substance abuse problem, a neurodevelopmental and/or neurocognitive problem, and often co-morbidities of all three, as well as serious problems with employment, housing, and education, among others.

Punishment does little to alter any of these circumstances and conditions. In many cases, it exacerbates them.

Prosecutors are lawyers.  They are not psychiatrists, psychologists, neurologists or clinical social workers.  However, since they are the pivotal decision makers, it is important to help them make better decisions, in turn, improving short term and longer-term outcomes.

Therefore, true criminal justice reform must encompass providing ways in which prosecutors can make better decisions that have recidivism reduction as a primary consideration.  In a previous book (“From Retribution to Public Safety), we developed the concept of independent panels of experts—psychiatrists, psychologists and neurologists who can clinically screen and assess offenders when they enter the system, and then advise prosecutors regarding the best path forward for recidivism reduction and risk management.

Recidivism reduction involves intervention/treatment; and risk management requires supervision and control.

We tested this concept with the prosecutors we interviewed.  They nearly universally embraced the idea, as did the public defenders and judges whom we interviewed.

Plea negotiation also raises serious concerns about fairness, criminal procedure and due process. Examples include the risk of involuntary confessions (often the result of charge stacking, threats of greater punishment, and pre-trial detention), ambiguous standards of proof for conviction, limited discovery, not litigating the evidence, not considering criminal intent, and many more.

How do we mitigate these concerns and assure fairness?

Having defense counsel present is a very important step, but we need to appreciate that public defenders do not have the luxury of time and reasonable caseloads. We have plea negotiation because it meets the needs of prosecutors, judges and defense counsel to move cases.

We believe that a plea mediator, a neutral, independent third party similar to the mediator role in civil litigation, can serve to level the playing field, bring the process above ground, and assure that plea negotiation meets constitutional standards.

One of the ironies is that our failure to effectively reduce recidivism is the main reason dockets and caseloads are so extraordinarily high, and why we rely so heavily on plea negotiation.

Until prosecutors embrace recidivism reduction as one of their primary responsibilities, and until we provide prosecutors with expert tools to make better, fairer decisions, efforts at meaningful justice reform will fail.

See also: Do the Nation’s Prosecutors Need Help?

Bill Kelly

William R. Kelly

William R. Kelly is professor of sociology at the University of Texas at Austin, and the author of four books on criminal justice reform, including From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice ( Rowman and Littlefield, 2017), and Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform (Rowman and Littlefield, forthcoming, October 29, 2018).He welcomes comments from readers.

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