Reflection 2

Original Article

Tempering Expectations: A Qualitative Study of Prosecutorial Reform

Rebecca Richardson 1

and Besiki Luka Kutateladze 1

Abstract Objectives: We investigate path dependence and barriers to the acceptance and implementation of reform-minded prosecution, which focuses on reducing unnecessary incarceration, promoting fairness, engaging with the community, and improving accountability in the criminal justice system. Method: Using semistructured interviews with 47 prosecutors in two Flor- ida jurisdictions, both with newly elected state attorneys, we explore reform-minded prosecution priorities and barriers to their effective imple- mentation. Results: Findings suggest that though reform-minded priorities are present in the study prosecutor’s offices, existing prosecutorial norms, case-focused decision-making, policy ambiguities, and communication chal- lenges serve as barriers to their effective implementation. Conclusions: The study highlights the role that line agents play in determining the success of reform-minded prosecution. It also identifies key barriers to reform that

1 Department of Criminology and Criminal Justice, Florida International University, Miami,

FL, USA

Corresponding Author:

Rebecca Richardson, Department of Criminology and Criminal Justice, Florida International

University, 11200 SW 8th Street, MARC 270, Miami, FL 33199, USA.

Email: [email protected]

Journal of Research in Crime and Delinquency

1-33 ª The Author(s) 2020

Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/0022427820940739

journals.sagepub.com/home/jrc

reform-minded prosecutors must overcome if they are to achieve mean- ingful changes toward greater effectiveness, transparency, and impartiality in prosecution.

Keywords prosecution, courts, criminal justice reform, qualitative research, research methods

The criminal justice system has experienced myriad reforms in recent

decades. Judicial sentencing decisions have been scrutinized and deemed

grossly inconsistent, triggering the proliferation of sentencing guidelines,

mandatory minimums, and other sentencing innovations designed to curb

discretion (Ulmer 2012). Police use of force has received even more atten-

tion, leading to civilian and government oversight mechanisms (Fyfe 1988).

Prosecution, on the other hand, has undergone remarkably little evolution.

Its core principles have remained virtually unchanged, as have its relation-

ships with other court actors, mechanisms for public accountability, and

often case management systems (Forst 2002; Frederick and Stemen 2012).

Now, the status quo in prosecution may be changing. Legal scholars and

policy experts note that prosecutorial elections are becoming more publi-

cized, and “tough-on-crime” rhetoric has begun taking a backseat to the

ideals of decarceration, equality, and community well-being in campaign

platforms (Aleem 2015; Balko 2018; Simon 2017; Sklansky 2017). Such

changes are reflected in recent waves of prosecutorial campaign promises

and are shaping new cohorts of elected prosecutors. A new brand of pro-

secution is emerging, one in which prosecutors promote reforms designed to

reduce incarceration, promote fairness, focus on the community, and

improve prosecutorial and police accountability (Bazelon and Krinsky

2018; Jackson 2019). These ideals may represent a shift in priorities and

a new direction for criminal justice and prosecution.

However, the extent to which reform-minded priorities are understood

and implemented in the prosecutor’s office is, at present, not well-

understood. Historically, criminal justice institutions have exhibited strong

path dependence, resisting reforms and maintaining momentum for punitive

justice policies (Beckett, Reosti, and Knaphus 2016). Both external and

internal factors bolster existing policies and make change increasingly dif-

ficult. The literature documenting organizational inertia and barriers to

reform in criminal justice agencies is robust (Berman and Fox 2010). With

2 Journal of Research in Crime and Delinquency XX(X)

this in mind, it is important to evaluate whether or not, and what kind of,

barriers stand in the way of reform-minded prosecution.

Qualitative research affords us a unique opportunity to engage in semi-

structured discussions with line prosecutors, where (1) respondents are able

to articulate their thought processes without the restraint of a close-ended

format, (2) face-to-face interactions allow researchers to gauge emotional

responses and better navigate difficult discussion topics, and (3) researchers

can ask follow-up questions to clarify previous responses. We asked line

prosecutors in two Florida jurisdictions—Tampa and Jacksonville—about

the goals and priorities in their offices, individual prosecutor and office

success, and areas for reform in the office and criminal justice system. Both

jurisdictions in the study have newly elected reform-minded state attorneys,

making this work particularly useful for understanding opportunities for and

challenges to implementing meaningful reform in prosecution.

Path Dependence in the Criminal Justice System

Perspectives on institutional path dependence provide a useful context for

exploring prosecutorial change. Social and political policies tend to follow a

self-reinforcing path that, as time progresses, makes changing direction

more difficult (Mahoney 2000; Pierson 2000). Positive feedback loops

strengthen policies and their supporting institutions and generate a pattern

of increasing returns, which progressively raises the social, political, and

financial costs of reforms. To our knowledge, prosecutorial policy has not

been examined from a path dependence perspective, but sociolegal scholars

draw on it to understand the perpetuation of mass incarceration and explain

why system-wide criminal justice reforms often fall short of their intended

effects (Beckett 2018; Dagan and Teles 2014). Rising fiscal costs, demands

for social equality, and bipartisan support for reducing incarcerated popula-

tions are driving policy makers, practitioners, and the public at large to

reconsider punitive criminal justice policy. However, penal institutions

mount formidable defenses against policy change. As a result, scholars such

as Beckett et al. (2016:240) note “considerable evidence that the criminal

justice zeitgeist is in flux and that meaningful criminal justice reform is

under way” while simultaneously observing that institutional processes

make reform substantially more difficult.

Many of these institutional processes occur externally to individual crim-

inal justice agencies. For example, punitive policies skew political power

toward interest groups that promote those policies’ continuation (e.g.,

Gottschalk 2015; Page 2011; Thorpe 2015). The entrenchment of

Richardson and Kutateladze 3

coordination efforts among law enforcement and correctional agencies pro-

tects the system from single-agency changes to punishment and surveil-

lance strategies (Weaver 2012). Penal ideologies and rationalizations adapt

to reflect contemporary discourses without sacrificing traditional punitive-

ness as a core objective (Beckett et al. 2016). These external forces amplify

organizational inertia and hurdles to policy change within individual crim-

inal justice institutions.

Barriers to the Implementation of Criminal Justice Reform

Literature from the management and implementation sciences highlights

characteristics of organizational environments that promote path depen-

dence and make effective policy change more challenging. Within the

organizational context of criminal justice, factors such as chains of com-

munication, mechanisms for coordination, centralization, executives’ orien-

tation toward change, and use of technology contribute to how easily new

innovations are implemented (Allen 2002; Brennan 1999; Darroch and

Mazerolle 2013). Prior work likewise demonstrates the potential for the

content, clarity, and delivery of policy reforms themselves to impact imple-

mentation success. For example, initiatives with too broad or imprecise a

scope are susceptible to misapplication, as justice actors interpret them in

widely varying ways or fail to understand how they can be incorporated into

existing protocols (Cissner and Farole 2009; Taxman and Belenko 2012).

Policies that increase practitioners’ workloads lose support or become

infeasible in practice (Feeley 1973; Taxman and Gordon 2009).

Equally pertinent to the efficacy of top-down reform is the critical role

that individual actors play in implementing organizational policy changes.

More than simple “translators” of new policy initiatives, line agents in the

justice system maintain a central role in interpreting directives and adapting

them to fit the micro-level contexts in which decisions are made (Lynch

1998; Rengifo, Stemen, and Amidon 2017; Rudes 2012). Scholars have

taken care to understand the dynamics of these performative environments,

noting the profoundly endogenous process in which justice policies are

shaped by the very individuals they are intended to govern (Edelman,

Uggen, and Erlanger 1999; Verma 2015). The molding of policy directives

by supervisors and line agents can be advantageous in bureaucratic systems

where executives are far removed from the realities of day-to-day opera-

tions, but it can also prove detrimental to the success of reform initiatives.

4 Journal of Research in Crime and Delinquency XX(X)

Challenges to the implementation of top-down criminal justice reforms can

dramatically weaken their impact (Berman and Fox 2010).

Sitting at the nexus of policy-making and operational activities in their

organizations, mid-level supervisors are particularly well-positioned to

influence policy through their interpretation of directives, communication

with subordinates, and monitoring of implementation (Livian and Burgoyne

1997; Lynch 1998). Expressions of resistance from this management group

heavily contour the legitimacy, execution, and underlying logics of new

policies. To illustrate, Lynch (1998) found that field parole supervisors

subverted new demands by adjusting standard informal policies to meet

the technical requirements but not the broader goals of new risk classifica-

tion policies. Other ethnographic work on the California parole system

similarly identified differences among middle managers’ interpretative

frames as an important cause of the failure of statewide parole reform

efforts (Rudes 2012). The line agents responsible for directly implementing

new reforms likewise have ample opportunity to weaken their efficacy. For

example, Viglione, Rudes, and Taxman (2015) observed probation officers

responding to the introduction of a risk-needs assessment tool by ‘going

through the motions’ without altering underlying decision-making, reduc-

ing the utility of the tool. Other researchers have documented judges resist-

ing reforms by shifting responsibility to other actors (Clair and Winter

2016), exploiting loopholes and safety valves to move cases outside their

purview (Lynch and Omori 2014; Schulhofer and Nagel 1989, 1996), and

simply ignoring them (Feeley and Kamin 1996).

We contribute to prior work on path dependence and barriers to criminal

justice reform implementation by further considering how the cultural and

procedural dynamics of criminal justice organizations each challenge pol-

icy change in the prosecutor’s office, a bureaucratic institution with long-

standing opacity and organizational inertia. As we explore how prosecutors

understand and implement reforms initiated by their newly elected leaders,

we highlight the role that line prosecutors play in determining the impact of

path dependence and the success of the reform-minded prosecution

movement.

Prosecution, Old and New

Prosecutorial policy has remained unified and stable for decades. Tasked

with serving as public advocates in an adversarial justice system, prosecu-

torial offices have traditionally represented society’s worries about public

safety and embodied its tough-on-crime sentiments (Barkow 2009). Many

Richardson and Kutateladze 5

prosecutors have maintained a working personality characterized by a

conviction psychology: a set of attitudes toward defendants, the judicial

system, and the role of the prosecutor that elevate conviction and punish-

ment as the most important goals of prosecution (Felkenes 1975; Fisher

1988). Historically, this conviction psychology has been the institutional

trademark of prosecution. To illustrate, Alschuler (1968) identified high

consistency in prosecutors’ role perceptions, with many perceiving them-

selves as administrators tasked with efficient case disposition and advocates

aiming to maximize convictions and sentence severity. Jacoby (1980) simi-

larly identified paradigms of prosecutorial charging, all of which center on

the sufficiency of evidence for achieving conviction. For decades, prose-

cutorial candidates have tended to construct very law-and-order platforms

to appeal to voters, advertising high-profile trials and hard-nosed

approaches to prosecution (Gordon and Huber 2002; Wright 2009).

Now, the United States has seemingly arrived at the precipice of a new

era for prosecutors. Calls for smart-on-crime policies have gained bipartisan

traction, putting pressure on the criminal justice system to explore alterna-

tives to incarceration and increase both precision and consistency in the

administration of justice (e.g., Holder 2014). Campaign promises among

many newly elected prosecutors reflect these goals (Fairfax 2012; Harris

2009; Simon 2017). Several tough-on-crime incumbents have been ousted

by newcomers touting data-informed smart-on-crime reforms (Bazelon and

Krinsky 2018; Jackson 2019; Sklansky 2017). We note that these newly

elected reform-minded prosecutors often emphasize one or more of four

goals: reducing incarceration, fairness in prosecution, focusing on the com-

munity, and accountability. While many of these ideas have floated around

the criminal justice literature for decades, practitioners in general, and

prosecutors in particular, have only recently begun embracing them.

First, prosecutorial rhetoric has increasingly reflected the need to reduce

incarceration. Faced with overcrowded correctional systems and the other

financial, social, and moral costs of mass incarceration (Clear and Frost

2015; Travis, Western, and Redburn 2014), many reform-minded prosecu-

tors advocate for less incarceration and more diversion programs and treat-

ment options. For example, Harris County (TX) District Attorney Kim Ogg

instituted a marijuana diversion program, and Philadelphia (PA) District

Attorney Larry Krasner issued a directive to stop requesting cash bail for

many low-level offenses (Brownstein 2018; Sasko 2018). A second hall-

mark of the new prosecution strategy is fairness in case processing. An

abundance of research suggests that criminal justice processing can affect

disproportionately harsh outcomes for certain sociodemographic groups

6 Journal of Research in Crime and Delinquency XX(X)

(Mitchell 2005; Spohn 2000; Ulmer 2012). The topic of unwarranted dis-

parities has also moved toward the forefront of public discourse about the

criminal justice system (Roberts and Stalans 2000), leading prosecutors like

Denver (CO) District Attorney Beth McCann and Brooklyn (NY) District

Attorney Eric Gonzalez to stress the importance of fair prosecution and

addressing inequality (Chammah 2016; Feuer 2016).

Third, prosecutorial reforms have emphasized focusing on the commu-

nity and adopting problem-solving approaches to prosecution. Rather than

simply processing and ensuring punishment for each case independently,

prosecutors seek to reduce and prevent crime through building connections

with the communities they serve (Levine 2005). Baltimore City (MD)

State’s Attorney Marilyn Mosby’s and Henry County (GA) District Attor-

ney Darius Pattillo’s campaigns provide clear examples of this theme,

frequently emphasizing community outreach, community-based program-

ming, and proactive crime prevention efforts (see Fenton 2017; Prince

2017). Finally, prosecutors are placing a renewed emphasis on accountabil-

ity. With few checks on their discretion, prosecutors’ offices have long been

plagued by issues of both prosecutorial and police misconduct (Sklansky

2018). In response, many reform-minded prosecutors pledge to maintain

more transparent administrations by more readily sharing data with the

public as well as by examining data themselves and embracing its role as

a means of intra- and inter-office oversight. For instance, Nueces County

(TX) District Attorney Mark Gonzalez’s campaign focused heavily on

increasing transparency and reducing prosecutorial misconduct (Barajas

2017), and Cook County (IL) State’s Attorney Kim Foxx promised both

police accountability and greater data openness in order to regain public

trust in her office (Schmadeke 2016).

These four themes—reducing incarceration, promoting fair prosecu-

tion, focusing on the community, and increasing accountability—emerge

in many modern reform-minded elected prosecutors’ platforms and can be

used as a framework for organizing the new brand of prosecution. The

increasing frequency with which reform-minded prosecutors are voted into

office suggests that such platforms enjoy substantial public support (Simon

2017). However, as Sklansky (2018) notes, it is unclear whether this fledg-

ling wave of reform will permanently change the fabric of prosecution and

meaningfully improve the criminal justice system. Recent news articles and

legal scholarship have clearly demonstrated that changes in prosecution are

happening. Yet, measuring reform implementation is an empirical under-

taking that requires social science intervention to document reform pro-

cesses, identify challenges to reform, and provide recommendations to

Richardson and Kutateladze 7

improve reform implementation and maximize impact. Social scientists,

however, have been slow to examine prosecutorial reform, leaving scholar-

ship largely theoretical. This article aims to begin bringing data into pro-

secutorial policy discourse.

The Current Study

Shifts in elected prosecutors’ priorities toward ideas such as alternatives to

incarceration, fairness, community engagement, and accountability have

the potential to meaningfully transform the criminal justice system. Yet,

the fulfillment of these reform ideas may depend on understanding and

support from line prosecutors, who turn their electeds’ policies into prac-

tices. It is line prosecutors and their supervisors who use discretion to make

a multitude of decisions across the lifespan of each individual case, from

case screening to sentencing recommendation, that have profound influ-

ences on the administration of justice (Davis 2007).

In this study, we identify (1) the nature and scope of new prosecutorial

priorities and (2) potential barriers to reform-minded prosecution in the

offices of two newly elected prosecutors. The benefits of this exploration

are twofold. First, it contributes empirical insights about modern reform

movements to the criminological literature from within an understudied,

well-insulated criminal justice organization: the prosecutors’ office. Sec-

ond, characterizing barriers to prosecutorial reform provides potentially

valuable information to policy makers and practitioners seeking to promote

and implement meaningful change in the field of prosecution.

Data and Method

Data Collection

This investigation is part of a larger research and technical assistance proj-

ect on efficiency, effectiveness, and fairness in prosecution. 1

The data come

from in-person interviews conducted in May–June 2018 with 47 line pro-

secutors from the Offices of the State Attorney for the Fourth Judicial

Circuit of Florida (Jacksonville) and the Thirteenth Judicial Circuit of Flor-

ida (Tampa). Both of these offices have elected prosecutors, a Republican

and a Democrat, respectively, who assumed office in January 2017 after

running on platforms touting reforms to increase fairness, public safety,

transparency, and the use of data (e.g., Chammah 2016; Sklansky 2017).

Serving midsize urban jurisdictions, the two offices have comparable num-

bers of line staff: the Fourth Circuit’s office has 116 line prosecutors, while

8 Journal of Research in Crime and Delinquency XX(X)

the Thirteenth Circuit has 130. For both prosecutorial offices, doing this

research was a new exercise, as neither office previously had any experi-

ence partnering with researchers or discussing these subjects.

The two offices in this study also share greater structural similarity than

most. Each office has approximately 10 trial divisions, each managed by a

division chief. Each division is assigned to a particular judge and court-

room. Misdemeanor and felony offenses are handled by separate groups of

prosecutors and judges. Virtually all cases reach the offices through a

referral from law enforcement, and both offices report positive working

relationships with local law enforcement, the defense bar, and the judiciary.

The biggest difference between the two offices is their early case assess-

ment procedure. The Tampa office has a dedicated unit that screens cases

and makes filing decisions before handing off the cases to trial attorneys,

while Jacksonville trial prosecutors largely screen their own cases.

Respondents in both offices were selected using a stratified random

sampling technique. First, we received a complete list of prosecutors

employed in each office as of May 2018, organized from most to least

senior. Next, we stratified these lists into quartiles to ensure that prosecutors

at all levels of the office (particularly at managerial levels) would be rep-

resented in the sample. Finally, we randomly selected 25 prosecutors and 15

alternates from across those strata in each office. The 25 selected prosecu-

tors were sent an individualized e-mail inviting them to participate in a

formal in-person interview and offering them various time slots over a

three-day period for the interview. One follow-up e-mail was sent, and

prosecutors who declined to participate or did not respond were not con-

tacted again. Instead, alternates were e-mailed using the same initial and

follow-up e-mail protocol. In Jacksonville, 38 prosecutors were ultimately

invited to participate and 25 interviews were completed (response rate ¼ 66 percent). In Tampa, 38 prosecutors were invited to participate and 22 inter-

views were completed (response rate ¼ 58 percent). Interviews were conducted face-to-face in private meeting spaces at the

offices and lasted between 40 and 75 minutes. Each interview involved two

researchers. Interviews were led by a senior researcher experienced in

prosecutorial data and engagement with line prosecutors, while a research

assistant typed detailed notes distinguishing direct quotes from summary

descriptions. Having two researchers at each interview was deemed neces-

sary to avoid overwhelming a single interviewer with engaging in a mean-

ingful discussion while taking meticulous notes. A semistructured interview

format allowed the tone of the interviews to be conversational, so that

respondents could respond directly to our questions but also introduce new

Richardson and Kutateladze 9

topics into the interview. To encourage candid responses on controversial

topics, the interviews were not audio-recorded. 2

At the beginning of each

interview, respondents were asked to read a consent statement detailing the

purpose of the interview and assuring confidentiality. 3

Interview questions

were designed to guide discussions in several areas: priorities of the prose-

cutors’ office, prosecutorial success, incarceration, racial and ethnic dispa-

rities, community engagement, and areas for reform. 4

Analytic Strategy

Data were analyzed using NVivo (2015) Version 11. We began the analysis

with the intention of identifying office priorities and barriers to the imple-

mentation/fulfillment of those priorities. Given that public discourse has

already highlighted various tenets of reform-minded prosecution, we used a

directed qualitative content analysis (QCA) approach to examine office

priorities (Hsieh and Shannon 2005). Directed QCA allowed us to use

existing theoretical concepts, in this case, the four tenets of reform-

minded prosecution, as the starting framework for identifying office

priorities and barriers to their implementation. Four coders first read all

interview notes in their entirety and independently conducted line-by-line

coding of all data to establish lists of concepts and themes related to our two

main areas: new priorities in the offices and challenges associated with the

implementation of those new priorities. Interview notes were then reviewed

again, and all relevant themes were compiled into a single exhaustive list. In

instances where there was initial disagreement about whether a particular

theme was present, interview notes were revisited until the group arrived at

a consensus. This secondary coding procedure resulted in the refinement of

many themes. For example, the initial theme of “prosecutorial discretion as

a new priority” was refined to specifically address how discretion is

expected to be used (i.e., to achieve case-appropriate outcomes and better

reach existing office goals). Basic frequency data were used to clarify the

strength of the themes identified.

Because the interviews were part of a larger investigation into prosecu-

tion, not all themes identified were relevant for this study (e.g., how to

assess efficiency in prosecution). Those themes were removed from the

analysis. Themes related to the nature and scope of new priorities were

identified, and themes related to policy implementation barriers were orga-

nized into broad categories that the research team jointly believed best

reflected the types of barriers identified. For instance, we organized (1)

missing criteria for what constitutes fair decision-making, (2) line

10 Journal of Research in Crime and Delinquency XX(X)

prosecutors’ beliefs that community engagement has no purpose, and (3) a

lack of clarity about when community engagement should occur into a

single category, “policy ambiguity,” that represents the incomplete articu-

lation of aims and implementation strategies for reform-minded priorities.

As the final step in the analysis, quotes that best represented the results

were selected to illustrate how prosecutors speak about these themes in their

own words. These procedures yielded a rich set of themes that sheds light on

how prosecutors understand their offices’ goals and priorities and how both

the structure and culture of prosecutor’s offices may hinder the advance-

ment of reform-minded prosecutorial priorities.

Participant Characteristics

Study participants were diverse. Respondents were 55 percent (n ¼ 26) non- Hispanic White, 15 percent (n ¼ 7) Black, 19 percent (n ¼ 9) Hispanic, 4 percent (n ¼ 2) Asian, and 6 percent (n ¼ 3) mixed race or other. Compared to the 246 full line staff in the two study offices, White prosecutors were

underrepresented, while Black and Hispanic prosecutors were overrepre-

sented in the sample. 5

Seventy percent (n ¼ 33) were female, also making female prosecutors overrepresented in the sample compared to the two

offices’ full line staff. Participants’ ages ranged from 26 to 56, with a mean

age of 38.8 years, and they had between 1 and 34 years of prosecution

experience, with a mean experience length of 10.2 years. Seventeen percent

(n ¼ 8) had previous experience as a defense attorney. Twenty-three per- centage of the sample (n ¼ 11) were serving in managerial positions at the time of the interviews.

6

Findings

Priorities in Two Prosecutors’ Offices

We first identify the nature and scope of new prosecutorial priorities in the

two offices. As the first substantive question of each interview, respondents

were asked, “In your own words, what do you see as the current priorities in

your office?” Table 1 provides a list of the most common responses to this

question, along with response frequencies. 7

Consistent with existing liter-

ature on reform-minded prosecution (Bazelon and Krinsky 2018; Jackson

2019), reducing incarceration, fairness, focusing on the community, and

increasing accountability all emerged as priorities.

The most common priority described by prosecutors was fairness. It is

essential to their elected, they explained, that prosecutors do the right thing

Richardson and Kutateladze 11

and achieve a fair, appropriate outcome in each case. For many prosecutors,

fairness manifests as consistency, where similar cases result in similar dis-

positions. Office-wide consistency is considered very important, but prose-

cutors also use their own past charging and plea offer decisions as a guide

for identifying fair outcomes in current cases, as this manager explains:

I try to teach young lawyers not to open a set of facts and give one offer, then

open another file that is remarkably similar and give a bigger offer. Con-

sistency is the most important thing. Don’t let a defense attorney call you

and remind you of a similar case from five years ago when you gave a much

better offer.

Keeping people “out of the system” was a second notable priority in the

offices. Prosecutors detailed a pressure to divert defendants away from

conviction and into rehabilitative programming, send defendants to speci-

alty courts, and otherwise keep them out of jail or prison. One prosecutor

stated that their elected is expanding the scope of diversion use, to try to

divert more offenders, and keep them from coming back. We detected two

distinct rationales for why alternatives to conviction and incarceration are

important. First, directing low-level defendants away from prosecution and

incarceration frees up offices’ resources to prosecute more serious cases.

Alternatives to incarceration are a mechanism for reallocating prosecutorial

and correctional resources to improve community safety. In contrast, other

prosecutors highlighted the benefits of treatment programming as an alter-

native, because it provides defendants with an opportunity to rehabilitate

and stop recidivating.

Third, prosecutors acknowledge that community engagement is a prior-

ity for their reform-minded electeds. Prosecutors are encouraged to

Table 1. Current Office Priorities as Described by Line Prosecutors.

Priorities Frequency

Fairness 24 Keeping people out of the system 22 Community engagement 18 Greater prosecutorial discretion 14 Public safety 9 Transparent, data-driven decision-making 8

Note: Forty-seven prosecutors were interviewed. Prosecutors could provide more than one priority in response to the question.

12 Journal of Research in Crime and Delinquency XX(X)

participate in activities such as attending community social events, speak-

ing in front of community groups, and visiting schools to teach children

about the criminal justice system. This is because communities generally

distrust law enforcement actors and think of prosecutors as the bad guys.

One respondent commented that sometimes they’re more uncomfortable or

afraid with us than the police even. Consequently, prosecutors have a tense

relationship with many of the communities they serve, and community

members are reluctant to report crimes and serve as witnesses for them.

In these offices, there is hope that community outreach efforts will build

community trust and make residents feel more comfortable talking to and

assisting prosecutors. One prosecutor posited:

[Community engagement] would improve effectiveness to make sure the

community does not view us as an enemy because they don’t understand the

process. This would help in the long run, especially for witness and victim

cooperation.

Far fewer prosecutors noted elements of the fourth goal in reform-

minded prosecution, accountability, as a priority. Those who did specif-

ically referenced prosecutorial transparency, emphasizing the importance

of showing people what we do and letting them see inside the office. In

describing what transparency looks like, prosecutors mentioned activities

such as engaging in social media, releasing periodic bulletins and reports

to the public, and communicating with the media in high-profile cases.

Interestingly, transparency was perceived as important for the same rea-

son that community engagement is encouraged: It builds trust. One pro-

secutor opined, Unless you open your doors and let people in and be

vulnerable, people will not trust you.

Although the priorities noted in this study generally align with the four

reform-minded prosecution goals we have identified, two additional

priorities discussed frequently by prosecutors provide nuance to the

reform-minded framework in the two offices. First, a nontrivial group of

prosecutors felt that rather than introducing new priorities, their electeds

were focused on giving line prosecutors more discretion to achieve the same

goals. One prosecutor recalled a member of the executive team telling line

prosecutors, you have the freedom, make the decision you feel is right.

Another described the aim as feeling empowered to use discretion without

fear of being fired on the spot. In the context of reform-minded prosecution,

this focus on discretion grants line prosecutors more flexibility and thus

Richardson and Kutateladze 13

may be the key to achieving other goals such as fairness and reduced

incarceration in the two offices.

At the same time, some prosecutors also acknowledged the continued

importance of one traditional goal, public safety. This priority was often

expressed as a function of violent crime in particular. One attorney said,

prosecuting dangerous criminals has always been the focus. Likewise,

another stated that the main priority is to incarcerate violent offenders.

That’s the first thing that comes to mind, that’s what (Elected) made clear.

(Elected) wants us to be focusing on violent offenses, weapons offenses.

Overall, while public safety remains a prosecutorial priority, our respon-

dents appeared to emphasize changes in office-wide priorities, which

placed greater focus on the ideals of fairness and community engagement,

among others.

Barriers to Reform-minded Prosecution

Prosecutors in our study thus acknowledged the introduction of new reform-

oriented priorities into their offices. However, in describing the priorities

established by their newly elected leaders, the prosecutors also highlighted

various ways that these priorities were not being fully realized. We observe

several distinct dynamics that help to explain how and why reform-minded

priorities are hindered in our two study offices. Specifically, new priorities

are inconsistent with existing prosecutorial norms, and prosecutors focus

exclusively on case-level decisions without considering the overall effects

of their decision-making. These misalignments are especially impactful

because breakdowns in intra-office communication channels prevent new

priorities from reaching line prosecutors, and prosecutors subsequently do

not fully understand new priorities or how to achieve them.

Existing prosecutorial role orientations. Reform-minded electeds must first contend with cultural resistance to their new priorities. Traditional norms

have shaped and subsequently reinforced activities in the prosecutor’s

office for decades, and in many instances, reform priorities stand in direct

opposition to how prosecutors have historically thought about their role in

the criminal justice system. For example, reform-minded prosecution fre-

quently focuses on reducing defendants’ criminal justice involvement

through the use of alternatives to prosecution and incarceration (Bazelon

and Krinsky 2018; Jackson 2019). However, this pursuit clearly runs coun-

ter to the traditional conviction-oriented mindset that prosecutors have long

espoused. Line prosecutors in the study did not demonstrate a discernible

14 Journal of Research in Crime and Delinquency XX(X)

desire to reduce their office’s incarceration rate; none indicated unequivo-

cally that incarceration is sought too often, and many referred to their use of

incarceration as appropriate and just about right. While arguing that their

office has done a good job identifying defendants who deserve or need

incarceration, one prosecutor noted that they are not social workers and

that being tough is sometimes required to protect the community.

Further complicating reform-minded prosecutor’ pursuit of reduced

incarceration, punishment scholars have commented that reform discourse

and practice tend to concentrate on decarceration efforts only for low-level

defendants, leaving serious defendants to face traditional harsh and even

increasingly harsher criminal justice treatment (Beckett et al. 2016; Seeds

2017). This bifurcation of justice responses to nonserious versus serious

crime was easily observed in our study. Indeed, prosecutors interpreted their

electeds’ desire to move more defendants out of the system as a push for

stricter implementation of existing policies rather than as a push to expand

the pool of eligibility for alternative programming. One prosecutor

described the new focus as weeding out minor felonies and not imprisoning

people for first-time offenses. Few interpreted the directive as an invitation

to consider alternatives to prosecution and incarceration for more violent

and felony offenses. Instead, for these more serious offenses, they relied on

more traditional approaches, seeking convictions and incarceration sen-

tences. As discussed earlier, they identified public safety as a continuing

important priority in their offices and indicated a resolve to fully prosecute

and incarcerate serious crimes. The bifurcation of reform policies—

leniency for low-level defendants and punitiveness for serious offenses—

diminishes the potential effects of policy change on incarceration rates, as it

shrinks the pool of defendants for whom involvement in the system can be

reduced and may offset low-level decarceration with longer sentences for

serious offenses.

Fairness is another reform-minded priority that may be similarly ham-

pered by existing prosecutorial role orientations. In contrast to typical

accounts of the prosecutor as a powerful justice actor with unfettered dis-

cretion (Davis 2007; Johnson, King, and Spohn 2016), prosecutors in this

study often presented themselves as reactive technicians with limited

agency. They tended to interpret their roles within the system in relation

to other criminal justice entities and share responsibility for case processing

outcomes with them. For example, prosecutors often argued that their duty

to follow the law forces them to rely on the legislature to determine appro-

priate outcomes in each case. They noted that they are frequently forced to

contend with sentencing guidelines, mandatory minimum sentences, and

Richardson and Kutateladze 15

habitual offender laws that prescribe inflexible, often punitive sentences.

One prosecutor felt frustrated by the supremacy of these laws, declaring that

the legislature is a mess. Sometimes they tie our hands with mandatory

minimums, and sometimes it would help to have options.

Prosecutors noted that deference to judges is a second factor that limits

their own impact on both fairness and incarceration rates. Specifically,

some respondents suggested that they themselves retain control over

screening and charging practices, but punishment outcomes are influenced

heavily by judges. Judges have the power to reject plea deals and assign

sentences, which makes them the ultimate authority on final dispositions.

Tailoring decisions to judges’ individual preferences saves prosecutors the

headache of arguing with judges over plea deals and having sentencing

recommendations rejected. One prosecutor used this reason to fully dismiss

the possibility that their office could ever achieve fairness:

The justice system itself is never going to be fair. I would love a perfect world

where you walk in a courtroom and it’d be the same as in another courtroom.

But judges are different . . . . You really do walk into a courtroom and adapt to

your judge. But in an ideal world the prosecutor would own the courtroom.

It’s our decision, we charge the case. The courtroom should be ours. Instead,

judges turn us down all the time. So we just go with it. And we adjust our plea

offers. Ultimately, we make plea offers so that the system runs, so that we’re

not taking a million cases to trial. But the judge does sentencing. It’s hand and

hand in the kingdom that way, but the sentencing part is probably why judges

wear the crown.

Having rotated through multiple misdemeanor courtrooms, another pro-

secutor relayed a story to similarly illustrate judges’ influence on plea offers

and sentencing recommendations:

My first judge would never ask for jail time. The only time I could get jail

time was if I also asked for participation in Yoga for Time, a yoga program,

because the judge is a yogi. And then another judge asks before I’ve said

anything, “How much time does the State want?” and then I know the judge

wants jail time and I might as well not ask for anything else . . . . A lot depends

on the judge.

Criminal justice scholarship has demonstrated the importance of consid-

ering interagent dynamics; court community members—most notably

judges, prosecutors, and defense attorneys—develop norms that assist them

16 Journal of Research in Crime and Delinquency XX(X)

in jointly resolving cases (Eisenstein and Jacob 1977; Ulmer 1997). Such

norms determine the efficiency and effectiveness of courtrooms and shape

individual court actors’ individual case decisions. With their commentary,

prosecutors in the study provide additional ammunition for the idea that

prosecutors make decisions “in the shadow of the judge” (Lynch 2019:88),

situating their case processing decisions within the larger context of the

courtroom communities in which they operate and suggesting that they

modify their approaches to conform to judicial preferences.

Case-level decision-making. Prosecutors’ singular focus on individual case outcomes constitutes another major cultural barrier to reform-minded pro-

secution. As previously noted, prosecutors in the study concentrate on “the

right thing” in each case, basing their decisions on the offense and the

circumstances unique to each situation. There was a strong normative

understanding that the intent should always be to achieve justice for each

victim and each defendant in each case. One prosecutor who felt particu-

larly passionate about learning the nuances in each case told us, each case is

a person’s life, and it affects a bunch of people’s lives . . . I have to know my cases inside and out, get to know the victims and witnesses on a personal

level, to do my job.

Considering the overall impact of their decision-making was perceived

by prosecutors as a threat to this case-level focus. Many of the prosecutors

in our study viewed their offices’ work as an either-or situation, where they

could either make decisions best suited for individual cases or work to

achieve desirable outcomes in the aggregate. As one prosecutor explained,

I think it’s better to assess cases individually. If I had too much data on

trends, that might take away from me looking at cases individually, which is

what we’re supposed to do. There was widespread reluctance even to know

basic office-wide statistics such as filing rates, incarceration rates, and

defendants’ racial demographics. A second prosecutor declared, we need

to focus more on individual cases, not on the grand scheme. This approach

highlights line prosecutors’ assumption that doing the right thing in each

case ultimately results in better outcomes on the whole.

Prosecutors’ exclusive case-level focus may prevent them from seeing

value in reform-minded priorities, several of which require consideration of

broader trends in decision-making. To illustrate, it was difficult for prose-

cutors in the study to reconcile their electeds’ focus on reducing incarcera-

tion with their own practice of assessing the suitability of incarceration

separately in each case. When asked whether incarceration is used too often

or too seldom in their offices, some indicated that they do not think about

Richardson and Kutateladze 17

incarceration from that perspective. One prosecutor suggested that it is hard

to say whether incarceration rates are appropriate, because each case is

unique and incarceration should go case by case. Another echoed this

sentiment, saying that nothing comes to mind where we use it too much

or too little. Once you do the job, you realize how each case has its own

nuances.

Community engagement is a second priority that can be hindered by line

prosecutors’ narrow focus on individual cases. Moving beyond the tradi-

tional use of outreach as a tool for increasing victim and witness coopera-

tion, reform-minded electeds advocate for a problem-solving approach to

prosecution in which individual prosecutors engage with their communities

to reduce and prevent crime. However, prosecutors in the study generally

did not mention using engagement as a means of learning about and addres-

sing crime problems in their local communities, instead focusing only on its

utility as a tool for improving victim and witness cooperation. Correspond-

ing with this observation, one prosecutor described their colleagues in the

field of prosecution as deluding themselves and a little bit too absorbed in

their casework to see the value of community involvement. How will you

know how to assist the community you are serving if you are not engaged?

this prosecutor asked. Another similarly commented that because prosecu-

tors sit in the ivory tower, they often can’t see what the people are doing.

Finally, some aspects of prosecutorial accountability are incompatible

with line prosecutors’ case-level emphasis. Although prosecutors in the

study recognized the electeds’ desire to increase transparency, for instance,

they believed this transparency should focus on positive outcomes in indi-

vidual cases rather than serve as a mechanism for accountability. One

prosecutor gave the example of highlighting on social media a female

defendant who graduated from a drug court program and maintained cus-

tody of her child. The prosecutor then said, we have to be transparent but

show a distinctly positive face . . . . We have to be able to say “here are specific good things we do.” A majority of prosecutors opposed releasing

administrative records or summary statistics that could undermine the nuan-

ces of each case and expose the offices to criticism. One questioned whether

summary statistics could contribute anything meaningful to decision-

making in individual cases: Every case is factually driven. How does a

trend affect my job? There was also general skepticism about the objectivity

of “data,” with prosecutors rebuffing the idea that summary trends could

help keep their offices accountable or contribute meaningfully to decision-

making in individual cases. They said that data could be worked and

manipulated and made to look like whatever you want them to look like.

18 Journal of Research in Crime and Delinquency XX(X)

In fact, our respondents could not recall any positive experiences where

research helped them improve their work.

Breakdown in Communication Channels

Existing prosecutorial orientations and a case-level focus generate robust

internal defenses against office-wide prosecutorial reform, but the strength

of these cultural barriers is bolstered by inconsistencies in the top-to-bottom

transmission of new priorities. Reform-minded priorities are not always

communicated clearly and concretely to line prosecutors. Electeds share

their priorities with office staff through channels such as annual town hall

meetings, individual meetings with office supervisors, and e-mail notifica-

tions, but these communications mechanisms do not always ensure that line

prosecutors receive the proper message. Several prosecutors noted incon-

sistency between what electeds say and what line prosecutors hear. One

prosecutor referred to the problem as a clog in the drain, where messages

filtered down from the elected either become trapped or altered prior to

reaching line prosecutors.

In both offices, mid-level managers (division chiefs, unit heads, or the

like) are the group that often determines how new priorities are expressed to

line prosecutors. They are the lynchpin to the communication chain, man-

aging line prosecutors day-to-day, and serving as the main liaison between

the electeds’ executive team and line prosecutors. However, respondents

noted that mid-level managers are also the group most likely to reject the

electeds’ new priorities. Armed with years of prosecutorial experience,

many mid-level managers have earned a reputation for safeguarding tradi-

tional values and being resistant to change. One prosecutor labeled them old

school. Another said, (Elected) is at the top, but the people in the middle are

taught to prosecute a certain way.

Mid-level managers are widely understood as having a large impact on

the success or failure of large-scale organizational changes and policy

implementation (Floyd and Wooldridge 1994; Livian and Burgoyne

1997), and tension between the ideals of the executive team and mid-

level management can be highly detrimental to the success of reform prio-

rities. Speaking from the perspective of the elected, one prosecutor told us,

If you have a division chief that is not in line with the mission, then you will

lose. Indeed, prosecutors in the study speculated that differences in philo-

sophy are the primary reason for the offices’ communication breakdown: I

don’t think the chiefs are always communicating what (Elected) wants. I

think sometimes they do things based on their own beliefs. In this portrayal,

Richardson and Kutateladze 19

mid-level managers are not merely translating policies into operational

tasks. They are intentionally subverting new directives in a way made

possible by their position of power within the prosecutorial organization

(Rengifo et al. 2017). The depiction is also consistent with other scholars’

observations about organizational resistance: Middle managers facilitate

organizational inertia more often through passive refusal to engage in

pro-change activities rather than active, overt objection (Balogun 2003;

Fenton-O’Creevy 2001). This quiet method of resistance allows them to

continue on their current course and prevent change more subtly, with less

chance of being detected or rebuked. Indeed, mid-level managers’ decision

to stop the transmission of new priorities or reinterpret them is viewed as a

form of covert resistance to the new administrations, but prosecutors in the

study did not provide any indication that such obstruction is typically

reported to the executive team or that it leads to meaningful penalties. 8

In

this way, managers are able to shape top-down policy directives to accom-

modate their own preferences and preexisting practices, largely without

censure, effectively promoting path dependence in the office.

Policy Ambiguity

Lastly, many line prosecutors are unable to articulate clear purposes and

implementation strategies for reform-minded office priorities. Although a

majority of respondents acknowledged a renewed emphasis on fairness in

their offices, for example, they also had great difficulty describing what fair

decision-making looks like in practice or providing specific criteria for

assessing whether individual case decisions are fair. One prosecutor stated

that fairness is a nebulous concept. Like what is fair? I know when some

things aren’t fair. I feel it. And that’s a dangerous thing, to go by feelings.

But sometimes, a lot of the time, I just feel it. This prosecutor’s discussion of

feelings as a guiding factor for determining what outcomes are fair under-

scores the subjectivity of fairness within the prosecutors’ office. The line

prosecutors in our study sought a balance between assuring fair, consistent

outcomes and allowing individual prosecutors to exercise their personal

judgment, but they did not demonstrate a clear understanding of where the

proper balance lay. This prosecutor reflected:

You try and let prosecutors be their own person, and make harsh or lenient

sentences that will let them feel comfortable making their own decisions, but

at the same time you want consistency across defendants so that one person

isn’t given a harsher sentence because of the prosecutor particularly.

20 Journal of Research in Crime and Delinquency XX(X)

Community engagement initiatives in the offices also suffered from

vague rationales and implementation strategies. First, some prosecutors saw

little reason to engage with their communities, suggesting that it was

unclear what the office’s push for community outreach was supposed to

achieve. Line prosecutors did not see how speaking at a school or partici-

pating in a local charity event could translate into more crime reporting and

witness cooperation, and they suggested that only people who need to be

concerned about how the public views prosecutors’ offices are elected

prosecutors who intend to run for reelection. When specifically asked about

the ways that working with community groups could improve prosecutors’

work, one prosecutor responded, I don’t know that it changes our work one

way or another. Another prosecutor said, that sounds political. It’s only

about elections. That is the for the benefit of the State Attorney. I may work

with someone at a church, but that doesn’t address kids on the street.

Among those who did embrace community engagement as a priority,

many did not understand how community engagement was to be incorpo-

rated into their work. The resource constraints endemic to criminal justice

agencies shaped what prosecutors believed they were able to achieve

(Taxman and Gordon 2009). Time limitations were the clearest problem;

heavy caseloads limited the amount of time prosecutors felt they could

devote to community engagement. One prosecutor said, I don’t do much

community engagement, but I think it’s important. I would love to do more

of it if I didn’t have so many other things to do. When asked whether they

interacted with their communities in a prosecutorial capacity, another

prosecutor simply shared their daily work schedule: I work 50 hours, go

home, go running, eat dinner, go to sleep. As a result, prosecutors in the

study reported few engagement efforts in their offices, and they spoke

about the benefits of engagement speculatively (e.g., community engage-

ment would improve effectiveness [underlining added for emphasis])

rather than as realized gains.

This lack of clarity may be due in part to the disruption of communica-

tion channels addressed above: When mid-level managers do not agree with

a new policy directive, they may send vague, inconsistent, or even no

messaging to line prosecutors about how it should be implemented. How-

ever, the disorder may also be a symptom of broader difficulties among

office policy makers defining the goals, scope, and implementation strate-

gies for new reforms. As on-the-ground interpreters of law and policy, mid-

level managers and line prosecutors can apply new directives in divergent

ways in the absence of clear and concrete guidance (Cissner and Farole

2009; Taxman and Belenko 2012). Reminiscent of the implementation

Richardson and Kutateladze 21

processes noted by Rengifo et al. (2017), in this study, there is little evi-

dence that the offices undertook extensive policy formalization during the

rollout of the new priorities. Prosecutors spoke more about a push to

develop and build support for a unified vision in the offices, far less about

the establishment of logistical guidelines for carrying out intended reforms.

Without a clear understanding of the desired implementation strategies,

prosecutors can comfortably fall back on established routines and avoid

substantially altering their behavior. Prosecutors in the study offices

attached their own meanings and logics to the new policies (e.g., prosecu-

tors simply “feel” when outcomes are fair, and community outreach is

“political” and “only about elections”) in ways that minimized changes and

justified the continuation of existing practices.

Discussion and Conclusion

Recently elected prosecutors are bringing new ways of thinking about what

constitutes success and how best to serve their communities (Bazelon and

Krinsky 2018; Jackson 2019). Their reform-minded philosophy is grounded

in the ideals of reducing incarceration, ensuring fair prosecution, focusing

on the community, and increasing accountability. In this study, we inves-

tigated how these big-picture priorities are understood and implemented in

prosecutor’s offices. We find that line prosecutors do acknowledge many of

their electeds’ reform-minded priorities. However, consistent with prior

scholarship on path dependence and organizational inertia in the justice

system (Beckett et al. 2016; Berman and Fox 2010; Taxman and Belenko

2012), we also find that reform is hampered by various forces within indi-

vidual offices.

First, prosecutors find themselves forced to navigate a disconnect

between traditional institutional norms and the new roles that reform-

minded prosecution requires line agents to adopt. As a result of this uncer-

tainty, difficulties accepting responsibility for reforms emerge. For

instance, though many newly elected prosecutors push to reduce reliance

on jails and prisons (Bazelon and Krinsky 2018), prosecutors in the study

maintained that their offices seek jail and prison sentences appropriately.

Pragmatically, many saw themselves as having limited agency in ensuring

fair dispositions, which are often determined by laws and judicial prefer-

ences. While the prosecutorial field may be ripe for substantial reform, a

culture change is unlikely to happen overnight. Prior research on organiza-

tional inertia has identified numerous forms of resistance that line agents

may use to negate the effects of new policies on their day-to-day operations

22 Journal of Research in Crime and Delinquency XX(X)

(Clair and Winter 2016; Feeley and Kamin 1996). Elected leaders may be

better served by anticipating resistance and promoting ownership among

line agents for reforms. Identifying manageable milestones internally can

foster accountability, more reasonable expectations, and ultimately more

effective criminal justice practice.

Another dynamic that limits the efficacy of prosecutorial reform is

offices’ exclusive focus on case-level decision-making. Line prosecutors

choose outcomes for each case independently and may discount the cumu-

lative effects of their decision-making. The focus on “doing the right thing”

in individual cases came across strongly in our interviews. This myopic

approach is difficult to reconcile with reform-minded prosecution, which

requires the consideration of large-scale trends such as incarceration rates,

the distribution of outcomes across defendants and victims, and community

crime problems (Bazelon and Krinsky 2018; Sklansky 2017). Prosecutors

understood their electeds’ desire to reduce incarceration but maintained that

case nuances make incarceration a case-level consideration only. They saw

little reason to adopt a problem-solving approach to community engage-

ment, and many saw no value in using aggregate data and statistics to

inform their work. The success of prosecutorial reform may be dependent

on line prosecutors’ ability to adopt multiple perspectives as they process

cases. In essence, they must attend to dual-level outcomes: individual case

dispositions but also patterns of decision-making, incarceration, disparity,

and community impact.

Findings also suggest that communication challenges have prevented

many line prosecutors from being able to articulate a clear purpose and

implementation strategy for reforms. Overcoming existing norms and orga-

nizational inertia in criminal justice agencies is even more difficult without

a unified vision and well-defined, concrete goals for new policies under-

stood similarly by all line agents (Cissner and Farole 2009; Taxman and

Belenko 2012). In this study, prosecutors suggested that messaging from the

elected to line staff is inconsistent; mid-level management subvert top-

down directives by altering or refusing to communicate new priorities to

their subordinates. This form of resistance, while passive, has likely con-

tributed to the observed fragmentation among line prosecutors in how pol-

icy reforms are understood. Despite widespread agreement that fairness in

prosecution is particularly important, prosecutors struggled to provide cri-

teria for determining whether case outcomes are fair. Some were unsure

why their offices were pushing for more community outreach, while others

were unclear about how engagement activities could be incorporated into

their regular schedules.

Richardson and Kutateladze 23

We suggest that this lack of clarity will constitute a significant challenge

to the successful implementation of reform-minded prosecution for two

reasons. First, reform-minded prosecution requires the displacement of

deeply entrenched prosecutorial norms. The role orientations and

decision-making patterns revealed in this study are consistent with tradi-

tional conviction-oriented discourses that have dominated the prosecutorial

field for decades, and prosecutors are unlikely to replace them without a

clear, coherent, and executable vision to fill the void. Second, even among

prosecutors who understand and embrace reform-minded priorities, ambi-

guity is likely to lead to differences in how policies are translated into

actions, leading to numerous renditions of each policy and undermining its

effectiveness (Rengifo et al. 2017).

For reform-oriented criminal justice practitioners, this underscores the

importance of clearly defining office priorities, identifying specific, con-

crete objectives, and then ensuring their transmission down all chains of

intra-office communication (Brennan 1999; Darroch and Mazerolle 2013).

Offices can dedicate internal resources to educating line agents about the

benefits of these priorities, which allows leaders to build support for key

reform policies. In making their case for change, reform-minded practi-

tioners must remain attentive to the obstacles presented by an institution-

wide status quo. Efforts that rely on internal buy-in but do not address

existing cultural and pragmatic barriers to change are likely to fail (Berman

and Fox 2010).

For scholars seeking to understand criminal justice reform movements,

these findings provide additional evidence that intra-office dynamics are an

important moderator of change. Although media and legal scholarship cite

the election of reform-minded prosecutors as confirmation of a new era in

prosecution (Bazelon and Krinsky 2018; Jackson 2019), the impact of the

prosecutorial reform movement will ultimately be determined by how well

electeds lead their offices in the implementation of reform-minded ideals.

Path dependence is multidimensional and likely pervasive in the prosecu-

tor’s office. Institutional features ranging from cultural norms and decision-

making practices to chains of communication and policy formalization

procedures impede reform-minded electeds’ ability to effect internal policy

change. The question, then, is whether and how the current momentum for

prosecutorial reform in public discourse can produce on-the-ground shifts in

attitudes and behavior. Scholars identify progressive district and state attor-

neys as powerful agents of criminal justice change (Beckett 2018;

Gottschalk 2015; Pfaff 2017), but this study highlights the need for observ-

ers to temper their expectations about the success of reforms and more

24 Journal of Research in Crime and Delinquency XX(X)

closely consider the influence of organizational culture, structure, and pro-

cedure on change in prosecution. Empirical examinations of the prosecu-

tor’s office are timely and can aid electeds in their pursuit of successful

policy implementation.

The identification of barriers to prosecutorial reform also has meaningful

implications for reform success in the broader criminal justice system. Path

dependence is not unique to the prosecutors’ office; prior literature has

identified similar resistance dynamics in other criminal justice agencies

(Clair and Winter 2016; Rengifo et al. 2017). If barriers to reform are

consistent across multiple agencies, it may benefit reform-oriented practi-

tioners and policy makers to coordinate their efforts and launch initiatives

that target these barriers simultaneously across agencies. Moreover, as a key

player within the courtroom landscape, prosecutors wield substantial power

across various stages of case processing (Davis 2007). Reforms geared

toward other parts of the criminal justice system may be ineffective, or at

least severely hindered, if prosecutors are unable or unwilling to support

them. Overcoming barriers to prosecutorial reform may be essential for

effecting meaningful system-wide change.

Of course, we must acknowledge this study’s limitations. First, it was

unable to create a fully representative sample of prosecutors. It is possible

that prosecutors who declined to participate in the study were hesitant to be

even anonymously critical about their administrations, were less receptive

to prosecutorial research, or otherwise represented a unique faction of pro-

secutors. We also focus on two Florida offices with newly elected, reform-

minded leaders, so we recommend caution generalizing the dynamics

discussed by our respondents to a more diverse group of offices. Third,

we were unable to interview our participants prior to the new administra-

tions’ takeover, so we cannot assess how their attitudes have shifted over

time. Finally, we cannot link respondents’ perceptions of new priorities

with their actual decision-making or with the concrete implementation of

those priorities. Although research examining other criminal justice actors

finds that attitudes can shape decision-making (Engel and Worden 2003;

Steiner, Travis, and Makarios 2011; Vidal and Skeem 2007; Worden 1995),

less is known about the impact of prosecutorial attitudes and perceptions on

behavior (e.g., Utz 1978).

This study contributes to the field of prosecution and our understanding

of the criminal justice system by identifying important internal sources of

path dependence that may hinder prosecutorial reform. Findings indicate

that institutional forces can muddle and even fully neutralize new reform-

minded priorities, and elected prosecutors must remain optimistic while

Richardson and Kutateladze 25

thoughtfully devising strategies to counteract these forces if they are to

bring about effective change within their offices. We hope this study also

highlights the value of forming strategic researcher–prosecutor partner-

ships. Limited access to prosecutors has routinely stymied efforts to

develop a detailed understanding of how they make decisions in their com-

plex roles as both advocates and arbiters of justice (Davis 2007; Frederick

and Stemen 2012; Johnson et al. 2016). Although researcher–prosecutor

partnerships are rare, opportunities are emerging as more prosecutors

embrace reform-minded ideals. Such partnerships hold the key to trans-

forming the prosecutorial field by demonstrating the value of research and

collaboration. They also advance the prosecutorial literature by yielding

more nuanced insights into how prosecutors think about their work and

contribute to (or hinder) institutional change.

Authors’ Note

The views expressed in this article are the authors’ alone and do not necessarily

represent the position of the MacArthur Foundation.

Acknowledgments

This work would not have been possible without our coinvestigators Ryan Meldrum,

Don Stemen, and Elizabeth Webster. We thank Maria Arndt, Dylan Matthews, and

Sadhika Soor for their research assistance. We are very grateful to the Offices of the

State Attorney for the Fourth and Thirteenth Judicial Circuits of Florida for their

partnership and candid commentary on prosecutors’ work.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research,

authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research,

authorship, and/or publication of this article: This work was supported by the John

D. and Catherine T. MacArthur Foundation under grant G-1706-152065.

ORCID iD

Rebecca Richardson https://orcid.org/0000-0002-8626-8600

Supplemental Material

Supplemental material for this article is available online.

26 Journal of Research in Crime and Delinquency XX(X)

Notes

1. The larger project entails helping prosecutors improve their data collection and

analytical capacities and training mid-level management in using data to identify

problems, form solutions, and measure change. Our partnerships came about after

nearly three years of developing relationships with stakeholders, including funders,

policy experts, and legal scholars, who were instrumental in securing buy-in among

the electeds. The interviews were conducted with the goal of identifying problems

and then working with our partners to improve policy and practice in their offices.

2. The decision not to audio-record interviews was made following consultation with

several prosecution scholars and prosecutors. Prosecutors in both offices had

expressed concerns over the recording of interviews during initial (preinterview)

site visits. Although the presence of a second interviewer may have in some cases

discouraged participants’ candor as well, the researchers determined that the sec-

ond interviewer was necessary to ensure that high-quality data could be collected.

Debriefings after the interviews further ensured the accuracy of researchers’ notes.

3. The consent statement made clear that participation was voluntary, respondents

could decline to answer any question or stop the interview at any time, respon-

dents’ identities would be kept confidential, and no quotes would be associated

with any individual. Respondents were asked to provide their signature acknowl-

edging their consent to participate.

4. The interview instrument is available online as a supporting document.

5. In the two study prosecutors’ offices, 77 percent of line staff are non-Hispanic

White, 7 percent are Black, 15 percent are Hispanic, and 1 percent are Asian.

Fifty-nine percent are female. In Jacksonville, 86 percent of line staff are non-

Hispanic White, 9 percent are Black, 4 percent are Hispanic, and 2 percent are

Asian. Fifty percent are female. In Tampa, 69 percent are non-Hispanic White,

6 percent are Black, 25 percent are Hispanic, and there are no Asians. Sixty-six

percent are female.

6. Given the stratified sampling technique used to ensure representation from all

nonelected levels of the office, age, prosecution experience, and managerial

status are likely to be slightly overestimated and overrepresented in the sample,

though we are unable to provide exact statistics on age, experience, and manage-

rial status for the offices’ full line staff.

7. These frequencies are conservative, as they do not count references to new or

current priorities discussed at other points in the semistructured interviews. Given

that specific priorities of interest to the researchers and elected were brought up

throughout the interviews, we determined that the frequency of responses to the

first question in the interview provided the clearest indication of what line prose-

cutors considered their electeds’ most important priorities to be.

Richardson and Kutateladze 27

8. During informal conversations with the research team during site visits, execu-

tive team members shared that they were unsure whether or not new priorities

were being communicated to line prosecutors. This provides further indication

that the executive team is generally not made aware of specific efforts to subvert

top-down communications.

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Author Biographies

Rebecca Richardson is an assistant professor in the Department of Criminology

and Criminal Justice at Florida International University. Her research interests

include courtroom decision-making, social inequality, sociolegal theory, and crim-

inal justice policy.

Besiki Luka Kutateladze is an associate professor in the Department of Crimin-

ology and Criminal Justice at Florida International University. His research interests

include social inequality, racial disparity in the justice system, prosecutorial discre-

tion, and performance indicators.

Richardson and Kutateladze 33