Questionnaire for a 21st Century Prosecutor

St. Louis County’s Prosecuting Attorney holds extraordinary power in the criminal justice system. How he or she exercises 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. The Prosecuting Attorney also wields 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.

St. Louis County’s Prosecuting Attorney 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 questionnaire evaluates whether St. Louis County’s Prosecuting Attorney candidates are committed to addressing the key drivers of mass incarceration. The questions fall broadly into five different principles:

  1. End Wealth-Based Disparities.

  2. End the War on Drugs.

  3. Eliminate Excessive Punishments.

  4. Increase Transparency and Accountability.

  5. Promote Policies that Aid Undocumented Communities.

 

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 in St. Louis County by keeping them incarcerated simply because they cannot afford to pay bail.  Lawsuits have challenged similar systems in neighboring jurisdictions, including Foristell and in St. Charles Counties. St. Louis County’s Prosecuting Attorney should adopt the following policies or engage in the following actions to reduce the use of cash bail.

  • What role, if any, do you think money bail should play in our justice system?

  • Will you issue public statements in support of statewide legislation, local ordinances, and/or litigation aimed at ending unjust money bail policies?

  • Will you advocate for individualized, adversarial bail hearings, at which the defendant is represented by counsel?

  • Will you presume, and affirmatively recommend, release for all defendants unless there is a clearly articulated substantial risk of harm to the community or high likelihood of flight?

  • Will you publicly support the expansion of cash-free pretrial bonds?

 

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. However, even contact with the criminal justice system that does not result in a conviction can be detrimental to future employment, housing, and education. Pre-charge diversion ensures that arrested individuals are not unnecessarily put through the criminal justice system. Diversion should be available to anyone eligible to participate in the program, irrespective of an individual’s ability to pay a fine or fee.

  • Will you oppose all fees, court costs, and fines associated with pretrial diversion programs?

  • If fees cannot be eliminated for all defendants, will you create a robust fee waiver program?

  • Will you refuse to make admission to diversion programs contingent on an individual’s ability to pay restitution?

  • Will you make the application to diversion programs free for all individuals?


3. Adopt Policies to Avoid the Criminalization of Poverty & End Debtor’s Prison

St. Louis County’s criminal justice systems disproportionately harms 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, St. Louis County has imposed a poverty penalty on many people within our communities. The next Prosecuting Attorney should adopt the following policies to reduce the number of people who remain in jails or have criminal convictions simply because they are poor.

  • Will you publicly support legislation to outlaw drivers’ license suspensions for non-payment of fines or fees?

  • Will you commit to never seeking drivers’ license suspension as a penalty for an offense other than DUI?

  • Will you 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?

  • Will you 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?

  • Will you support legislation aimed at eliminating predatory fines and fees in municipal courts?

 

4. End Civil Asset Forfeiture

In St. Louis, County, law enforcement can seize money, personal belongings, and property from people, even if that property is owned by a third party other than one engaged in criminal wrongdoing, placing enormous burdens on property holders. 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.

  • Will you support statewide legislation to end the use of civil asset forfeiture, and work with local officials to end the practice in your county?

  • Prior to the elimination of asset forfeiture, will you commit to using the practice only where the amount in question exceeds $40,000, 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 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. St. Louis County’s next Prosecuting Attorney 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.

  • Will you decline to prosecute any case involving the possession of less than four ounces of marijuana?

  • Will you commit to charging all other cases of simple possession of a controlled substance as a misdemeanor offense?

  • Will you refuse to seek incarceration sentences for defendants charged with simple possession of a controlled substance?

  • Will you refrain from charging defendants with possession with the intent to distribute a controlled substance based solely on drug quantity or packaging?

  • Will you adopt a policy prohibiting the prosecution of individuals as persistent offenders whenever one or more of the underlying charges is for simple possession of a controlled substance?

  • Will you publicly support legislation that reclassifies all drug possession offenses as misdemeanors?

 

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.

  • Will you adopt an office-wide policy stating that drug overdoses will not be prosecuted as homicides cases except when there is sufficient evidence of intent to cause death?

  • Will you publicly support the creation of supervised injection facilities?

  • Will you adopt an office-wide Good Samaritan policy stating that individuals who call the police in response to an overdose will not be prosecuted?

 

Principle #3: Eliminate Excessive Punishments.

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. St. Louis County’s next Prosecuting Attorney should adopt the following policies to ensure that children are treated like children in the criminal justice system.

  • Will you support legislation to raise the age of juvenile jurisdiction to 18, then to 21?

  • Will you adopt an office-wide policy stating that your office will never seek a sentence of greater than 25 years for any person under the age of 18?

  • Will you refrain from seeking any child under the age of 16 to a court of general jurisdiction, no matter what the charge?

  • For children over the age of 16, will you commit to never seeking transfer to a court of general jurisdiction unless the child has been charged with first or second degree murder and already has an adjudication for a Class A felony?

  • In the extremely rare circumstances when a juvenile is sent to adult court, will you commit to taking into account their youthful status and unique circumstance as mitigating factors at each stage of the process, from charging decisions through final disposition?

  • Will you refuse to prosecute school suspension or expulsion cases where there is no use or threat of force resulting in serious physical harm?

  • Will you publicly advocate for developmentally-appropriate Miranda protections for all defendants under the age of 18? 

 

2. Do Not Seek the Death Penalty

The use of the death penalty has become increasingly isolated to a handful of jurisdictions within the United States. There is mounting evidence that the death penalty is fraught with error, provides no additional public safety benefit over other available sentences, and is routinely used against individuals with diminished culpability, including persons with intellectual disabilities and severe mental illness, youthful offenders under the age of 21, and those who have experienced extreme childhood trauma. St. Louis County’s Prosecuting Attorney should use their discretion not to seek the death penalty.

  • Will you commit to never seeking the death penalty?  If not, please explain under what conditions you believe the death penalty is appropriate.

  • Will you publicly support repeal of the death penalty?

  • Will you examine previously-imposed death sentences within your county and seek negotiated resolutions for sentences less than death, particularly when there is substantial evidence that the death-sentenced individual suffers from an intellectual disability or serious mental illness, or was under the age of 21 at the time of the offense, or experienced childhood trauma?

  • Will you publicly acknowledge the racial disparity present in St. Louis County’s implementation of the death penalty?

 

3. 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 St. Louis County’s Prosecuting Attorney to promote opportunities for release, through parole or clemency, and to help remove barriers to reentering society for those who are released from incarceration.

  • Will you establish an office-wide presumption that the least severe applicable charges apply, and that the lowest sentencing outcome is the correct recommendation?

  • Will you establish a policy that no charges will be brought or maintained against a defendant unless, given the evidence known to the office at any given time, the charging prosecutor believes that there is sufficient evidence to prove the case beyond a reasonable doubt?

  • Will you require prosecutors to justify requests for sentences above the minimum sentence to their supervisors, and require that the chief assistant prosecutor approve all maximum sentences sought?

  • Will you commit to reducing the percentage of cases where a maximum sentence is sought by prosecutors?

  • Will you 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?

  • Will you publicly oppose any proposed legislation that would create new mandatory minimum sentences or lengthen existing minimum sentences, and support legislation aiming to eliminate such sentences?

  • Will you 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?

 

4. Eliminate Unnecessary Punishments

Criminal punishments for certain crimes, including quality-of-life offenses, are by definition excessive.  They saddle people who pose no public safety risk with criminal records, which become lifelong barriers to economic success.

  • Will you refuse to prosecute broken-windows offenses such as criminal trespass, public urination, and other quality of life crimes?

  • Will you establish diversion programs for offenses that do not pose a public safety risk, such as low-level theft and criminal mischief?

  • Will you implement pre-charge diversion programs to divert those with mental health issues away from jails and prisons and into community-based treatment?

  • Will you support pre-charge diversion programs for offenses that do not pose a public safety risk, such as theft, vandalism, and criminal mischief?

 

Principle # 4: Promote Transparency and Accountability to the Community

1. Engage with the Community You Represent

Enhancing transparency and accountability within the Prosecuting 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.

  • Will you 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?

  • Will you track racial information at all steps of the prosecution process, and publicly report any significant racial disparities arising at any stage of the process?

  • Will you build a staff that reflects the diversity of the community the office serves?

  • Will you 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 Prosecuting 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.

  • Will you 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?

  • Will you release dash-cam recordings and audio or video surveillance related to police-involved shootings within 30 days of any incident?

  • Will you commit to a full investigation of any allegation involving police corruption, including presentation to the grand jury?

  • Will you commit to the creation of an Independent Investigation Unit to investigate instances of police misconduct, or commit to referring those cases to an independent or special prosecutor?

  • Will you 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. St. Louis County’s Prosecuting Attorney 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.

  • WIll you acknowledge that there have been wrongful convictions due, in part, to prosecutorial misconduct in St. Louis County?

  • Will you establish and fully staff a Conviction Integrity Unit that examines post-conviction cases to identify and correct wrongful prosecutions?

  • Will the CIU remain separate from the office’s appellate division?

  • Will you 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?

  • Will you create an office policy recognizing the flaws in informant testimony?

  • Will you develop clear guidelines regarding the use of informant testimony?

  • Will you prohibit staff from relying on discredited scientific techniques, such as bite mark analysis or hair strand matching?

  • Will you develop clear office guidelines regarding the use of forensic evidence and instill respect for scientific methodology, evidence, and analysis?

  • Will you install a complete open-file policy that provides defense counsel with access to all non-privileged information from the moment the charges are filed?

  • Will you conduct regular Brady training, require prosecutors to turn over all evidence that arguably falls within the Brady rule, and discipline prosecutors who fail to comply with their Brady obligations?

  • Will you commit to developing and publishing clear guidelines to ensure that persons of color are not being struck for racially discriminatory reasons in violation of Batson, and discipline prosecutors who are found to be in violation.

  • Will you commit to implementing office protocols for disciplining assistant district attorneys who engage in racially biased behavior (racial profiling, hate speech, Batson violations, etc.)?

 

Principle #5: 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. These policies will help St. Louis County’s next Prosecuting Attorney protect our most vulnerable individuals.

  • Will you 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?

  • Will you implement an office-wide policy requiring prosecutors to consider immigration consequences in the charging, plea, and sentencing decisions?

  • Will you expand pre-plea diversion programs that allow individuals to obtain dismissals of their charges without entering a guilty plea?

  • Will you affirmatively support post-conviction litigation from non-citizens who pled guilty without being advised of the potential immigration consequences of their plea?