Confronting the elephants in the courtroom through prosecutor led diversion efforts.

Author:McWhorter, Erica
Position::Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions


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.

    1. 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. (7)

    2. Significance of Guilty Pleas in the Misdemeanor Arena

      There are multiple factors that contribute to why guilty pleas are so prevalent in the misdemeanor system. This article will not concentrate on the significance of wrongful conviction nor is it intended to purposely advance theories of innocence or overcriminalization. Instead this article will set out some systemic reasons for the numbers (as well as for the collateral consequences likely to result from some of those pleas) and how pretrial intervention can address many of those specific system-based issues.

      Pretrial intervention as programing can and has been used as a tool to stimulate ongoing criminal justice reform and criminal justice system economy. Pretrial intervention identifies vulnerable populations that have or are about to enter the misdemeanor system in order to redirect the course of their legal involvement by redirecting the course of their behavior using community and evidenced-based approaches with leverage from pending charges or further legal action. (8) Using pretrial intervention strategies to change certain system functions that cause high volumes of guilty pleas and collateral consequences can significantly reduce some of the most troubling reasons for those problematic outcomes. Prosecutors' roles and activities are defined in part by how the system functions, how the system treats the participants, and how the community--legislature and judiciary included--view the legitimacy of the system, including prosecutor activities. (9) Therefore, the benefits of pretrial intervention to the system, system participants, and communities are also a benefit to prosecutors who have a vested interest in the fair and effective functioning of misdemeanor system.

      This article will describe just how those strategies, when led and supported by prosecutors, serve as effective techniques to minimize the impact of the elephants in the courtroom. Part II will describe the concept of pretrial intervention in terms of diversion and its goals. Part III will briefly discuss two of the elephants in the courtroom: the numerous guilty pleas and prosecutorial methodological concerns. Part IV will examine how pretrial intervention efforts can successfully address some of the most concerning system issues in a meaningful way. Part V will provide examples of prosecutor led diversion efforts and how they exemplify opportunities to address guilty pleas, collateral consequences, and prosecutorial methodological concerns. Part VI will discuss the importance of prosecutorial buy-in to the successful development and implementation of those pretrial strategies.


    This paper discusses pretrial intervention principally in the context of pretrial diversion (and to a limited extent post plea diversion and deferred prosecution programs). Deferred prosecution, treatment courts, and neutral or court-affiliated pretrial services agencies may provide some level of pretrial intervention, share the goals and premises on which the pretrial intervention described here is based, and thus fit in a limited way within the described framework; (10) but these are not the pretrial diversion programs referred to throughout this article. The primary reason this article is not advocating for a description of alternative courts or other programs in the same manner is that those programs may lack a significant feature found in pretrial diversion, which allows persons to complete the program without a guilty plea or conviction on their record. For this reason, pretrial intervention in terms of diversion is distinct and offers the misdemeanor justice system and system participants additional structural advantages while decreasing the possibilities of collateral consequences disrupting the system and communities.

    1. What it is and How it Works

      According to the National Association of Pretrial Services Agencies, pretrial diversion refers to alternative case processing programs aimed at reducing recidivism, conserving criminal justice resources, and assisting persons to make changes in their lives that will prevent entry into the criminal justice system that results in a dismissal of the charges upon successful completion. (11) These programs use evidence-based and established tools and criteria to determine eligibility, provide services, and monitor progress, including risk and needs assessments, varied levels of intervention (from short-term classes to substance abuse treatment), and the inclusion of community actors and stakeholders (like citizens and social services organizations). (12)

      Pretrial intervention looks first to the best outcome based on the possible charge and then uses the likely disposition to that charge as leverage or a procedural mechanism to ensure accountability of the system and defendant in moving toward the optimal end result, which is typically a dismissal of charges, conditioned upon successful program completion. In this way, the system avoids the time, expense, and collateral consequences of guilty pleas. (13)

      Pretrial intervention varies greatly by jurisdiction. While those programs mainly target nonviolent low-level offenses such as fraud, theft, or drug-related offenses (14) their utility is a result of the program being crafted as a specific solution to specific problems. The jurisdiction examines its demography, social vulnerabilities, criminal justice system caseload type and volume, jurisdictional resources, and stakeholders involved in the system to determine which program at what time will produce the most value for the community, individuals and system efficiency. (15) Pretrial intervention types can be local or statewide, done before booking (and before charging, which keeps an defendant out of jail), or after booking, or even after a plea in court. (16)

    2. Additional Goals of Pretrial Intervention

      The primary goal is to reduce harm to the community by incarceration, guilty pleas, or collateral consequences. (17) The...

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