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Vertical Prosecution

The NYT and vertical prosecution from July 13, 2016:

“…many see vertical prosecutions as an efficient management tool because when a prosecutor is heavily invested in a case, it is less likely to get overlooked or lost in a pile of other cases.”

Vertical prosecution demands that an experienced assistant prosecutor (AP) assume significant managerial control over the development and management of a case as it proceeds through the stages of the prosecution process. It becomes his/her (work) product. This may be contrasted with division of prosecution into several stages managed by different APs (e.g., bail hearings, pretrial interventions, grand juries, etc.) Having an AP heavily invested in a case is questionable for many reasons, including the following (by way of illustration and not exhaustion):

  • Turnover in the prosecutor’s office (e.g., where individuals do not commit to a career in the office, the institutional chaos risk would be increased from reshuffling cases among managing APs)
  • Professional development of staff (e.g., where inexperienced APs are held down too long below the managerial position, turnover would likely increase and morale and cooperation would likely decrease)
  • Professional development of managerial APs (e.g., institutional tendency towards specialization is hard to resist and given APs would tend to get quickly tied to specific types of cases notwithstanding the initial plan)
  • Confirmation bias (e.g., institutionally compelled to become invested in the case at hand, the managerial AP may wrongfully cling to the ‘first suspect’)
  • Lack of objectivity (e.g., with confirmation bias effects, the managerial AP would focus on his/her case and long desired positive outcome – conviction through plea or trial – and not the interests of justice, which may demand dismissal or alternative treatments)
  • Judicial calendar (e.g., trial schedules cannot consistently accommodate a given managerial AP’s availability for trial)

Where root causes are not addressed (e.g., overuse of criminal law as a remedy for social ills such as drug use, lack of proportionality in assessing potential criminal cases such as following the headlines, professional and political tendency to show how tough one is on crime for positions beyond the AP-level, etc.) the caseloads of prosecutors offices grow well beyond the remedial means of the surrounding environment (e.g., tax base, employment base, etc.) While vertical prosecution offers some positive ideas (e.g., potentially allowing and encouraging APs to become more familiar with a given case), the overall office-wide caseload would likely continue to increase without the necessary financial and human resources support from other institutions (e.g., police, corrections, alternative criminal justice treatments) to address the effects and required just solutions for these caseloads: Shifting work assignments among the fairly static number of APs would not likely materially improve the care required for APs to further the interests of justice unless broader policy changes are designed and implemented.

Moreover, the assumption that what is primarily wrong with prosecution is the risk of inattention from APs is not an accurate diagnosis of the causes of the problems (though it may be too often provided as an excuse). Development of a sense of proportionality in the administration of criminal justice – from the writing to the application of law and regulation – is necessary.

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