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Progressive Prosecution -- Fewer Felonies or More Murders?

Disparate views on progressive prosecutors were outlined in a webinar sponsored by The American Society of Criminology's Criminology & Public Policy journal.

Journal co-editor Christopher Koper noted that progressive prosecutors "emphasize reducing incarceration, as well as racial and ethnic disparities in the justice system."

In general, they work to reduce the prosecution of lower level offenses, seek fewer prison sentences, support bail reform, and try to reduce biases in decision making.

Separate articles in the journal by Ojmarrh Mitchell and Thomas Hogan evaluated the impact of progressive prosecution on criminal justice processing outcomes and public safety. They highlighted benefits and potential drawbacks of the practice that has been a controversial subject amid rising violence.

Mitchell, a professor at the School of Criminology and Criminal Justice at Arizona State University, was able to study prosecutors in Florida based on public court records that detailed the stages of case processing and outcomes.

In a study featured earlier this week in Crime and Justice News, Mitchell and colleagues examined cases at three different stages: the complaint, the final filing, and adjudication, including plea agreements that specify the type, and length of sanctions.

Mitchell said that progressive prosecutors need three of these four qualifications. The use of "smart" or data driven policy making, established conviction integrity unity, non-prosecution or diversion of whole classes of offenses and removing "poverty traps" such as cash bails.

Under these criteria there were only four progressive state attorneys in the state, leaving 16 "conventional" state attorneys. The study found important differences between progressive and conventional state attorneys, illustrated in contrasting case outcomes.

"Cases handled in progressive jurisdictions were more likely to have their case dismissed, transferred, or diverted" and were less likely to end up with a felony conviction, Mitchell said.

The study also showed that among progressive prosecutions, there were no indicators of Black disadvantages, and in fact more dismissal of cases. However, the study did find racial disparities in conventional prosecutions specifically for African Americans. Comparable to Whites, African Americans were more likely to receive prison sentences in conventional jurisdictions.

Thomas Hogan, a criminology PhD student and a local and federal prosecutor, published a different study called "De-prosecution and death: A synthetic control analysis of the impact of de-prosecution on homicides."

Hogan wanted to measure "de-prosecution" and the potential impact on homicides, specifically in Philadelphia. "De-prosecution is the discretionary decision by prosecutors not to bring charges regardless of the evidence," Hogan said.

Hogan called such decisions a show of "asymmetrical power" in the criminal justice system. He said the system is set up to constrain overly aggressive prosecutors, but that there is nothing in criminal procedures that "in any way constrains the power of a prosecutor not to prosecute, to de-prosecute," Hogan stated, " It is a very very powerful tool for a de-prosecutor."

Hogan measured sentencing and new cases arriving into the system. Sentencing piqued Hogan's interest because it expresses the full discretion of a prosecutor over the course of an investigation.

He found that de-prosecution covered a wide net of felonies and misdemeanors, and noticed a decrease in the number of new sentences. There was a 70 percent reduction in sentences between 2014 and 2019.

Meanwhile, homicide rates were increasing. Hogan estimated that by 2019 there should have been around 200 homicides that should have happened without de-prosecution. There were actually 350 homicides amid de-prosecution practices.

Hogan contended that there are an additional 74.79 homicides per year in Philadelphia associated with de-prosecution. Some 85 percent of victims are Black, and "almost all of those victims come from the poorest neighborhoods in Philadelphia," Hogan said, "What is happening ... is heavily concentrated on the most disadvantaged communities in Philadelphia."

While the papers by Mitchell and Hogan disagreed, both encouraged public dialogue on prosecution practices, discussing fairness and equity in the justice system and how prosecutions affect vulnerable members of society.


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