Despite a wealth of evidence showing public safety can be improved by connecting people to needed social and health services, the internal metrics of prosecutors’ offices do little to incentivize this course of action.

The criminal justice reform movement has rightfully focused on prosecutors as key actors in bringing about much-needed change.  Dozens of reform-minded prosecutors have been elected throughout the country promising to tackle mass incarceration while keeping their communities safe. They will not succeed unless they redefine what it means to be a “successful prosecutor.”

Today, local prosecutors measure themselves by three core metrics: how many people are indicted on criminal charges, how many cases they try and how many convictions they secure (either through guilty pleas or convictions after trial). For too long, these metrics have been used to decide promotions and raises, and to confer professional capital, dictating who gets the best cases and whose work is celebrated.

Not surprisingly, then, these are the metrics around which prosecutors orient their work and judge their professional self-worth. This rewards prosecutors who excel at managing large caseloads and processing people through the system. But these metrics do not necessarily recognize the prosecutors who are most effective at achieving public safety and promoting equality. These goals require additional metrics. Decisions about what crimes and people to focus on, and whether or not to incarcerate, matter enormously. The existing metrics take us further away from the goal of building a better criminal justice system.

It is understandable that prosecutors have used these measures for decades, as these are some of the easiest statistics to collect. And unlike other measurements that can be affected by outside forces-like a crime surge, which may have several causes-these internal metrics focus solely on the efforts of the prosecutor. Yet this is exactly the problem. By disconnecting performance measures from what's happening in a community, and from the core values prosecutors seek, we have built a system that values most what it measures: charges and convictions. To improve public safety and achieve justice, we have to start with new metrics.

Despite a wealth of evidence showing public safety can be improved by connecting people to needed social and health services, the internal metrics of prosecutors' offices do little to incentivize this course of action. Under existing metrics, negotiating a lengthy prison sentence for a mentally ill person, during which time that person's condition might worsen and ultimately lead them to be released as a higher risk to the community, perversely reflects better on the ADA than identifying an appropriate treatment program that might stabilize the person and have a markedly better long-term effect on public safety.

Replacing these metrics will not be easy-in many localities, these data are the only metrics collected. Many prosecutors currently lack the capacity to measure anything else, due to the siloed nature of data in criminal justice today. For example, even though a state bureau of criminal records may track recidivism (how often people who have been incarcerated commit new crimes), prosecutors may not have access to that data.

Changing not only what gets measured, but also who gets access to relevant data, will be an extremely difficult task. But there is no other way. The current metrics create serious incentive problems, including that under the “traditional" metrics, a prosecutor who dismisses a case upon learning of problems with the evidence would be penalized for their sound use of discretion. In other words, the current metrics entrench certain practices and make it difficult to shift line prosecutors' incentives.

That this standard prevails in prosecutors' offices is particularly surprising given that police departments recognized the challenges implicit in this incentive model as early as the 1990s. The CompStat model pioneered by the NYPD recognized the perils of the perverse incentive structure that resulted from rewarding individual police officers based solely on numbers of arrests. The measurement of the performance of a particular officer or precinct based on the long-term effect on crime in the community, rather than the short-term fact of an arrest, is an important lesson for prosecutors.

To align the workplace culture of prosecutors' offices with the broader goals of public safety and justice, annual personnel evaluations should include a breadth of quantitative and qualitative factors: the amount and quality of contact with crime survivors; declinations to prosecute arrests that are improper or lack sufficient evidence; dismissals of low-level cases that are better left outside the criminal justice system; non-incarceration case resolutions; preparing incarcerated individuals to return to the community; and whether people charged with crimes whether or not they agree with an outcome-feel that the system has legitimacy.

Prosecutors should also be assessed on factors that we know reduce recidivism, like minimizing pretrial detention and re-directing cases that are better addressed through medical treatment and other options. Many of these are things that most good prosecutors are already doing; indeed they may even be part of what they think they are measuring by tracking convictions and sentences alone.

As in all industries, technology has markedly improved prosecutors' ability to collect data; even rudimentary computer systems now enable offices to track things like how often a prosecutor meets with a crime survivor, how regularly she appears in court on her own cases rather than relying on a colleague with less knowledge of the case, and how often she identifies an appropriate non-jail solution.

The current metrics do not just miss these key measures, they do further harm because they often undermine public safety by prizing immediate prosecution and incarceration without recognizing their costs. A recent paper on race and prosecution published by the Institute for Innovation in Prosecution outlines that those costs are concentrated among communities of color. Prosecutors can and should be leaders in decreasing the footprint of the criminal justice system, in communities of color and in general.

As public servants who serve their entire community, prosecutors can alleviate long-term public safety challenges through innovative solutions that promise better outcomes than traditional jail and prison sentences. They will never be fully successful by relying on antiquated metrics. The measures of success should be precisely what voters care about: public safety, equality, and justice.

Rachel Barkow is the Segal Family Professor of Regulatory Law and Policy at New York University and the author of the forthcoming Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Lucy Lang is the executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, CUNY and previously served as a state prosecutor. Anne Milgram is a professor of Practice at NYU School of Law and served as attorney general for the State of New Jersey from 2007-2010. Courtney Oliva is the executive director at NYU Law School's Center on the Administration of Criminal Law and previously served as a federal and state prosecutor.

Link to article: https://www.law.com/newyorklawjournal/2019/04/09/how-we-judge-prosecutors-has-to-change/#