Platform for a 21st Century Prosecutor
Local and state prosecutors hold extraordinary power in the criminal justice system. How they exercise discretion at each stage of criminal proceedings—from initial charging decisions to the sentences they seek to impose—determines whether the local justice system is fair and just. They also wield significant influence as policymakers and civic leaders, and can work with legislators, judges, public defenders, law enforcement, and other community stakeholders to advance justice through policy reforms.
Prosecutors can and should use this power to end the scourge of mass incarceration in America. The United States has the largest prison population in the world, and 87 percent of those imprisoned are held in state or local prisons and jails. The United States’ over-reliance on incarceration and harsh punishment is both costly and ineffective; it exacts enormous financial, emotional, and social costs on communities across the country while exacerbating recidivism and leading to more crime.
This platform outlines specifically how State’s Attorneys in Maryland—through a combination of prosecutorial discretion and policy reforms—can address key drivers of mass incarceration. It relies on five basic principles:
Ensure that everyone is treated equally under the law
End the War on Drugs.
Promote Transparency and Accountability.
Promote Policies that Aid Undocumented Communities.
Make Punishment Fair.
Principle #1: End Wealth-Based Disparities
1. End the Use of Money Bail
The continued use of unjust money bail policies contributes to the overall incarceration of poor people and disproportionately harms people of color by keeping them incarcerated simply because they cannot afford to pay bail. Locally elected prosecutors should adopt the following policies or engage in the following actions to reduce the use of cash bail.
- Prosecutors should not seek or recommend cash bail in any case. Those who pose a safety risk can be held, but only after a hearing.
- If prosecutors deviate from this policy, they must clearly articulate a reason and seek approval by a supervisor. Any requests for cash bail should be made only after a financial assessment has been made, and the requested amount is consistent with the defendant’s ability to pay.
- Prosecutors should not replace money bail with requests for no bonds, which undercuts the purpose of bail reform. They should not ask for “no-bond” holds unless the accused presents a substantial risk to the community or high likelihood of flight as shown by clear and convincing evidence. State’s Attorneys should support legislation that limits the use of “no-bond” requests.
- Push for the expansion of the County’s Pretrial Release Programs to ensure that those who are eligible for the services do not have to wait for release.
- State’s Attorneys should make public monthly reports on the numbers of “no bonds”, cash-bail, and release on own recognizance to increase transparency and ensure the system is correcting itself.
- Publicly advocate for legislation that severely limits the use of no-bail, completely stops the use of cash bail, and that provides for further individualization of the process.
2. MAKE DIVERSION PROGRAMS ACCESSIBLE TO ALL
Pretrial diversion creates opportunities for people charged with an offense to get the support and education necessary for rehabilitation, and allows successful individuals to avoid the collateral consequences of a conviction, which can be detrimental to future employment, housing, and education. Pretrial diversion should be available to anyone eligible to participate in the program, irrespective of an individual’s ability to pay a fine or fee.
- Eliminate all fees, court costs, and fines associated with pretrial diversion programs. If fees cannot be eliminated for all defendants, create a robust fee waiver program.
- Do not make admission to diversion programs contingent on ability to pay restitution.
- Make the application to diversion programs free for all defendants.
- Participation in diversion programs should be not be conditioned on initially entering a guilty plea.
- Publicly seek funding and ways to create diversion programs for felony offenses that will treat underlying mental or substance abuse disorders through treatment instead of jail or prison times.
3. ADOPT POLICIES TO AVOID THE CRIMINALIZATION OF POVERTY AND END DEBTOR’S PRISON
Local criminal justice systems disproportionately harm people living in poverty. Whether through the imposition of fines and fees as a condition to resolving cases, or through laws that effectively criminalize homelessness, local actors have imposed a poverty penalty on many people within our communities. Locally-elected prosecutors should adopt the following policies to reduce the number of people who remain in jails or have criminal convictions simply because they are poor.
- Publicly support legislation to outlaw drivers’ license suspensions for non-payment of court costs, fines, or fees.
- Oppose incarceration based upon the failure to pay fines, fees, court costs, or restitution unless there is uncontroverted proof the individual is able but willfully refusing to pay.
- Refuse to prosecute sit-sleep-lie laws, public urination violations, and other quality-of-life conduct that is a byproduct of an individual’s homelessness or poverty.
- Make pretrial release, plea agreements, diversionary programs, and other favorable sentencing programs available to all defendants, regardless of ability to pay.
4. END CIVIL ASSET FORFEITURE
In many states, law enforcement can seize money, personal belongings, and property from people without even charging them with a crime or obtaining a conviction. Often, the money seized is then used to pad law enforcement budgets. There is no place for this practice, which has received criticism from across the ideological spectrum. Prosecutors must resolve to put an end to asset forfeiture in their counties.
- Support statewide legislation to strengthen House Bill 336, which still allows the taking of property (except for homes) based on clear and convincing evidence instead of a conviction.
- Prior to the elimination of asset forfeiture, commit to using the practice only in criminal cases after a conviction has been obtained and after members of the community have had an opportunity to contest, with the aid of a lawyer, a potential seizure.
Principle #2: End the War on Drugs
1. KEEP PEOPLE OUT OF JAIL FOR DRUG-RELATED OFFENSES
Years of experience with aggressive yet ineffective drug laws and the latest medical research on addiction suggest that treating drug use as a public health issue, as opposed to a criminal justice issue, is a more effective approach to reducing harm. Locally-elected prosecutors should adopt the following policies or engage in the following actions to reduce the number of people in jails and prisons for drug-related offenses.
- Do not charge simple possession drug cases.
- Where absolutely necessary, never ask for incarceration sentences for defendants charged with simple possession.
- Where dismissal is not possible, create and expand cite-and-release and diversion programs for drug offenses, including drug possession, possession of drug paraphernalia, and distribution of small amounts of drugs.
- Refrain from charging defendants with possession with the intent to distribute a controlled substance based solely on quantity or packaging.
- Adopt a policy prohibiting the prosecution of individuals as habitual felons or seeking sentencing enhancements whenever one or more of the underlying charges is for simple possession of a controlled substance.
- Publicly support legislation that reclassifies all drug possession offenses as misdemeanors.
Publicly support the “Overdose and Infectious Disease Prevention Safer Drug Consumption Facility Program” legislation.
2. TREAT OPIOID ADDICTION AS A PUBLIC HEALTH PROBLEM
The opioid crisis claims tens of thousands of lives every year, and has shown few signs of abating. Prohibitionist policies did not win the war on drugs, and they will not end this crisis. Prosecutors can play an important role in ending the crisis, but only if they treat addiction as a public health crisis, rather than a criminal justice concern.
- Adopt an office-wide policy stating that drug overdoses will not be prosecuted as homicide cases except when there is sufficient evidence of intent to cause death.
- Publicly support the creation of supervised injection facilities.
- Adopt an office-wide Good Samaritan policy stating that individuals who call the police in response to an overdose will not be prosecuted.
- Make diversion the default path of prosecution in cases where the criminal charges stem from the defendant’s drug addiction.
Principle #3: Promote Policies that Aid Undocumented Communities
In the last year, undocumented communities have come under increasing attack because of increasingly vicious federal immigration laws. These policies not only allow for deportation because of minor allegations like possession of drugs, but they also make communities less safe, as undocumented victims fear going to court or speaking to law enforcement. It is therefore critical that prosecutors adopt policies that protect some of our nation’s most vulnerable residents.
- Publicly support local ordinances and statewide legislation that affirmatively limits law enforcement’s cooperation with ICE, and oppose any effort to enlist local law enforcement as federal immigration agents.
- Implement an office-wide policy requiring prosecutors to consider immigration consequences in the charging, plea, and sentencing decisions.
- Expand pre-plea diversion programs that allow individuals to obtain dismissals of their charges without entering a guilty plea.
- Affirmatively support post-conviction relief for non-citizens who pleaded guilty without being advised of the potential immigration consequences of their plea.
Principle # 4: Be Transparent and Accountable to the Community
1. ENGAGE WITH THE COMMUNITY YOU REPRESENT
Enhancing transparency and accountability within the district attorney’s office is critical to ending the win-at-any-cost pursuit of high conviction rates that fails communities and to ensuring community accountability. Providing the community with information about arrest rates, charging decisions, and sentencing policies will help build and maintain trust between the office and the community it serves.
- Maintain and publish an electronic case management system to measure the overall effectiveness of the office—including the number of misdemeanor and felony cases filed each month, disposition statistics, pretrial incarceration rates and length of stay by offense category, and average bond for each class of offense—so that the community can determine the effectiveness of policies aimed at reform.
- Track racial information at all steps of the prosecution process, and publicly report any significant racial disparities arising at any stage of the process.
- Build a staff that reflects the diversity of the community the office serves.
- Conduct open sessions with the community at least once every month, and create other public channels for community members and organizations to engage with the office.
2. CREATE AN INDEPENDENT PUBLIC INTEGRITY UNIT
The district attorney must be committed to rigorously and independently investigating and prosecuting police and other official misconduct. An independent Public Integrity Unit tasked with investigating and prosecuting alleged instances of public corruption, fraud, police shootings, or other abuses of power will help avoid concerns about bias in cases involving police misconduct.
- Develop clear procedures and staff responsibilities whenever an officer-involved shooting occurs, including a robust investigatory protocol and an independent investigatory team that has no regular contact with the law enforcement agency in question.
- Release dash-cam recordings and audio or video surveillance related to police-involved shootings within 30 days of any incident.
- Commit to a full investigation of any allegation involving police corruption, including presentation to the grand jury.
- Provide defense counsel with a list of all officers under investigation.
3. DEVELOP POLICIES THAT ENSURE THE INTEGRITY OF CONVICTIONS
Law enforcement officials and prosecutors will inevitably make mistakes. The consequences of wrongful convictions are manifold; the innocent person spends years in prison for a crime he did not commit, and justice continues to elude the victim’s family. Prosecutors must be vigorous in re-examining prior cases whenever there is credible evidence of innocence, and must develop policies that limit the possibility of future wrongful convictions.
- Establish and/ or expand a Conviction Integrity Unit that examines post-conviction cases to identify and correct wrongful prosecutions. Keep the division separate from the office’s appellate division.
- Create a review process for all discretionary decisions, from charging through disposition, where senior staff examine whether there is sufficient evidence to support the charges and whether the decision is consistent with the office’s policy of seeking the least severe acceptable charges.
- Create an office policy recognizing the flaws in informant testimony, and develop clear guidelines regarding its acceptable use.
- Prohibit staff from relying on discredited scientific techniques, such as bite mark analysis or hair strand matching.
- Develop clear office guidelines regarding the use of forensic evidence and instill respect for scientific methodology, evidence, and analysis.
- Install a complete open-file policy that provides defense counsel with access to all non-privileged information from the moment the charges are filed.
- Conduct regular Brady training, require prosecutors to turn over all evidence that arguably falls within the Brady rule at the earliest moment it is discovered, and discipline prosecutors who fail to comply with their Brady obligations.
- End formal and informal office practices that incentivize seeking convictions and lengthy sentences over justice and fairness, including conviction quotas, and promotions and / or compensation based on conviction rates and sentence lengths.
Principle #5: Make Punishment Fair
1. TREAT KIDS LIKE KIDS.
Children’s brains continue developing until around the age of 25 and research supports their enhanced capacity for rehabilitation. As a result, children should not be prosecuted in adult court, nor should they be given punishments that preclude the opportunity for redemption. Locally-elected prosecutors should adopt the following policies to ensure that children are treated like children in the criminal justice system.
- Adopt an office-wide policy stating that your office will never seek a sentence of life without parole, or any practically equivalent sentence, for any person under the age of 18.
- Refrain from using direct file or transfer to adult court for any child unless required by law. In the extremely rare circumstances when a juvenile is sent to adult court, their youthful status and unique circumstances should be taken into account as mitigating factors at each stage of the process, from charging decisions through final disposition.
- Support removal proceedings from adult court to juvenile court.
- Do not prosecute school suspension or expulsion cases where there is no use or threat of force resulting in serious physical harm.
- Publicly support legislation that raises the age of criminal responsibility to 21.
- Publicly support legislation that raises the age of juvenile jurisdiction fro 7 to 12.
- Publicly support legislation narrowing the list of offenses that automatically places juveniles into adult court.
- Do not seek life without parole sentences, or de facto life without parole sentences.
2. PROMOTE PROPORTIONATE SENTENCING AND PATHWAYS TO SECOND CHANCES
People are more than their worst acts, and even people who commit the most serious offenses often change their lives profoundly over time. To recognize the worth and potential for growth in all people, it is important for local prosecutors to provide individualized consideration to the character and background of each person and to the circumstances surrounding the commission of the offense. It also is critical for elected prosecutors to promote opportunities for release, through parole or clemency, and to help remove barriers to reentering society for those who are released from incarceration.
- Establish an office-wide presumption that the least severe applicable charges apply, and that the lowest sentencing outcome is the correct recommendation. Require prosecutors to justify departures to their supervisors, and require that the chief assistant prosecutor approve all maximum sentences sought.
- Establish an office policy against increasing or threatening to increase the number or severity of charges in order to secure more favorable plea dispositions or waivers of rights.
- Publicly oppose any proposed legislation, including the “Truth in Sentencing Act” that would create new mandatory minimum sentences or lengthen existing minimum sentences and support legislation aiming to eliminate such sentences.
- Support second chances, even for those who commit serious offenses, by both limiting parole opposition to those cases in which there is a demonstrable and serious risk of future violence and committing to affirmatively advocate for parole on behalf of those who demonstrate growth and maturity during their incarceration.
- Do not seek life without parole sentences.
3. ELIMINATE UNNECESSARY PUNISHMENTS
Criminal punishments for certain crimes, including quality-of-life offenses, are by definition excessive. They saddle people who do not pose a public safety risk with criminal records, which become lifelong barriers to economic success.
- Stop prosecutions for broken-windows offenses like criminal trespass, public urination, and prostitution.
- Establish pre-filing diversion programs for offenses where those charged pose no public safety risk, such as low level theft and criminal mischief.