The Call for the Rise of the Modern Prosecutor

I had two children after graduating from law school and decided to go into private practice as it would afford greatly flexibility for raising a young family. A short time into my transition into criminal defense, a 19-year-old girl I will call Sara and her mother scheduled a consultation. Sara grew up in a small rural town and was homeschooled. After she graduated from high school, she moved to attend community college and got a part-time job at a hardware store as a cashier to assist with her living expenses. Sara had been sheltered in her small community and had little life experience. Sara met a young man who became her first boyfriend. He worked in construction and convinced Sara to scan an inexpensive tool when he came through her checkout stand but not scan an $800 tool set.

Sara made a very poor decision and was immediately caught by loss prevention, who recorded the transaction on video. Sara made a full and tearful confession and provided her boyfriend’s contact information. He was eventually tracked down, but the tool kit was never recovered. He hired private counsel, paid the hardware store full restitution, and had his charges amended to a misdemeanor.

Sara was charged with felony theft. She could not afford a private attorney and was appointed a public defender. Her attorney met with her for the first time in court at her pre-trial hearing and explained that the prosecutor’s office had a policy that if an employee was involved in a theft, they would not offer a reduction. Given her confession and overwhelming evidence, she would be found guilty and the prosecutor would ask for jail time. Sara pled guilty to felony theft and her sentencing hearing was scheduled in three weeks.

Sara called her mom and told her she pled guilty. Sara’s long-term goal was to complete her associate of arts degree and transfer to a four-year university. Her mother quickly realized a felony conviction would derail her daughter’s educational and career aspirations and her future. Sara was finishing her first year of community college and had earned excellent grades.

I was retained to file a motion to vacate the guilty plea. The prosecutor assigned to the case would not stipulate to a withdrawal of the plea. Having been a prosecutor, I understood that to them, the facts were clear and met each and every element of the statute, and the guilty plea on the record was knowingly, willingly, and intelligently made. The law does not account for the fact it was made by a 19 year old who had no prior involvement in the criminal justice system.

Having been a prosecutor, I understood clearly that for most prosecutors, the resolution of every case must ensure that a victim is made whole whenever possible, that the defendant is held accountable for their actions, and that the impact of the consequences motivate a defendant not to re-offend. What I came to learn both as a prosecuting attorney and then as defense counsel was that there exists a wide range of philosophical beliefs by prosecuting attorneys of how much weight, consideration, and deference, if any, the resolution of a case should take into account justice as to the defendant and the trajectory of their life.

After losing the motion, I approached the chief criminal deputy and explained that the ex-boyfriend had pled to a misdemeanor. We legally understood the court’s reasoning. We also understood the spirit of the policy of addressing an employee’s breach of trust and fiduciary duty to their employer. I explained Sara took full responsibility for her actions and understood she needed to be held accountable. However, being held accountable should not result in completely derailing her future. The chief deputy listened and agreed to vacate the guilty plea and amended the charge, and Sara pled guilty to misdemeanor theft. Sara would not face entering adulthood as a convicted felon.

This article is solely focused on nonviolent crime, first-time offenders, and nonviolent crime connected to substance abuse and mental health disorders where an individual is amenable to treatment and services. Most advocates of criminal justice reform, myself included, acknowledge that there are certain individuals who are a danger to the safety of the community or are chronic offenders with criminological traits for whom incarceration is often the only viable option.

Elected and appointed prosecuting attorneys have the authority and the discretion to either enact strictly punitive charging policies or be forward thinking and thoughtfully and strategically enact policies, practices, and initiatives that focus on aggressively targeting violent crime and chronic offenders that is balanced with connecting with their communities and establishing alternative options that focus on accountability and rehabilitation, and taking a leadership role in building thriving and safe communities.

Nancy Parr, the elected Commonwealth’s Attorney for the City of Chesapeake, and current president of the National District Attorneys Association, is one of those prosecutors.

Nancy graduated from the University of Richmond, T.C. Williams School of Law, in 1983 and immediately went to work for a law firm representing condominium associations. She quickly realized this was not fulfilling work and wanted to pursue trial practice.

She was hired by the City of Suffolk Commonwealth’s Attorney’s Office. She worked in the City of Suffolk for 10 years, where she worked mostly on domestic violence, child abuse, and sexual assault cases and was promoted to Chief Deputy Commonwealth’s Attorney.

After her children grew up and graduated high school, and after working as Chief Deputy Commonwealth’s Attorney for the City of Chesapeake, she moved to the City of Chesapeake and ran for elected office with the support of the prior elected prosecutor, who left office to assume the bench, and her colleagues. She is the first woman elected in her city and has been serving the City of Chesapeake since 2005.

Nancy started community outreach efforts in 2005 because she didn’t want community members, whether they be victims of crime, defendants, or the defendant’s family, to meet her in the courtroom for the first time. She wanted to know what the community wanted her to know about them and their neighborhoods.

Nancy began concentrated community outreach initiatives and programs that include a basketball tournament with a focus on “playing on the right team” that involves participation from her office, the police department, sheriff’s office, and firefighters. The Boys Leadership Conference and the Girl’s Empowerment Conference include both young teens and their parents to learn about topics such as financial literacy, Internet safety, and other related topics aimed at empowering families and youth as well as connecting families to community resources.

Nancy wholly funds these programs and others, including Traveling the Road to Success, Graffiti Be Gone, and Every 15 Minutes programs, with financial support from businesses and community leaders in the community. The focus of all these programs is to go upstream and prevent people from becoming involved in the criminal justice system. Nancy expressed that when people are exposed to opportunities, resources, and alternatives, they have more options and can make better decisions that keep them out of the criminal justice system.

Kristine Hamann, Executive Director of the Prosecutor’s Center for Excellence (PCE), and a career prosecutor, says the innovative initiatives and programs Nancy is organizing in the City of Chesapeake are not an isolated incident and prosecutors across the country are enacting a variety of programs and initiatives in communities that represent a wide range of sizes, geographic locations, and demographics. Kristine spent three decades serving as a prosecutor in the Manhattan District Attorney’s Office in New York City before taking on the role of Executive Director of the PCE. Her career has been focused on prosecution, and she has firsthand experience and knowledge of the impact the role of the prosecutor can have in the criminal justice system.

The PCE provides technical assistance, training, and resources to prosecuting attorneys who are interested in transcending beyond the traditional role of having a limited and relatively passive role of processing police reports and evaluating arrests made by the police and screening them for prosecution. Prosecutors are getting involved and recognizing there is a need for “more complex solutions that not only seek positive outcomes for victims, but also strategies that strive for long-term solutions for defendants, potential defendants, and the community at large. Over the last forty years, there has been a dramatic transformation and expansion of the prosecutors’ mission, to not only vigorously prosecute criminal cases, but also to engage in crime prevention, problem solving and engage in community partnerships.”

Kristine and her team at the PCE are currently working with prosecuting attorney’s offices across the country providing assessments, technical assistance, and training focused on shifting from the traditional role of the prosecutor to a more proactive and engaged role in building safer communities through better outcomes for those involved in criminal justice. See www.pceinc.org.

The following are two of the many programs and initiatives for which the PCE provides technical assistance, consultation, and support to prosecuting attorney’s offices:

Crime Strategies Units Intelligence (CSUs) across the country have significantly broadened the prosecutor’s traditional focus to include analyzing community concerns about crime, identifying crime trends and the people who are the crime-drivers, and coordinating with other prosecutors, the community, and law enforcement partners. This broader knowledge is used to prioritize prosecution efforts and to develop targeted solutions, addressing the underlying problems that lead to criminality.

Statewide prosecutor-led Best Practices Committees have formed in 20 states over the past few years, with more under consideration. They are made up of head prosecutors, senior prosecutors, and prosecution coordinators, from all regions of the state, and provide a process for collaborative policy work. See https://pceinc.org/services/#map.

The PCE summarizes best the emerging role of the modern prosecutor. “Although the prosecutor’s core mission will always be case-focused due to the nature of the work and the profession, the responsibilities of the modern prosecutor will require the expansion of initiatives and programs that are focused on crime prevention strategies, rehabilitation of offenders, and community engagement. Prosecutors from around the country who are embracing this broader vision are enhancing public safety and significantly benefiting the men, women and children in the communities that they serve.”

About a year later, I received a thank you card from Sara that read, in part, “I just wanted to say thank you one last time. Thanks to you I am moving forward in life. I just got a job offer in Florida and I graduate in August. I appreciate what you did for me.”

Although I appreciate the card from Sara and other clients I have received throughout the years I have practiced criminal defense, the expressions of appreciation should rightfully go to all of the prosecuting attorneys in each and every one of those cases that exercised their prosecutorial discretion to ensure that the pursuit of justice included the defendant in cases where it was merited. The time has come for prosecuting attorneys to look beyond conviction rates being the traditional measure of success and examine the impact they are having in the communities they serve. There is a call for the rise of the modern prosecutor.