Reject or Dismiss? A Prosecutor’s Dilemma

District and state attorneys nationwide are facing increasing pressure to prosecute every case the police bring to their desks. When prosecutors look to alternatives, they are quickly labeled “soft on crime.”

Some communities go as far as attempting to recall their elected prosecutor, as seen most recently in San Francisco (where they were successful in removing DA Chesa Boudin), Philadelphia and Los Angeles.

But we must not conflate being unwilling to prosecute cases up front with being an unfit district attorney.

Not every case is appropriate for prosecution, and a large volume of filed cases are ultimately dismissed due to issues such as insufficient evidence, time delays, and interests of justice.

Besiki Kutateladze

Thorough case screening is a tool for conserving resources, promoting good practices, and doing what’s best for the community’s well-being.

We need more prosecutors who prioritize serious and well-evidenced cases from the start, not fewer.

The Prosecutorial Performance Indicators project gathered data from 15 prosecutor’s offices from around the country to look at patterns in case rejections and dismissals.

Attached is a table showing the survey.

We quickly learned that the popular narrative that progressive prosecutors always reject a lot of cases, while conservatives do not, does not hold water.

For example, Philadelphia — a relatively progressive city with a prosecutor who ran as a reformer — rejects only 5 percent of its cases. Conversely, Jacksonville (Duval County, Florida), a relatively conservative jurisdiction, eliminates up to 30 percent after thorough screening.

Once cases are filed, they do not necessarily result in a conviction by trial or plea. Looking more closely at Philadelphia and Jacksonville’s case screening practices: since 2019, Philadelphia has dismissed more than 50 percent of filed cases.

Melba V. Pearson

In contrast, Jacksonville has dismissed under 10 percent.

On average, more than a quarter of filed cases are ultimately dismissed.

The upshot is that many prosecutors are filing a higher volume of cases than their offices can effectively handle. Caseloads have historically been high, and pressure from law enforcement and other local stakeholders has continued to push them to pursue more cases, often without any corresponding increase in resources.

COVID-19 simultaneously aggravated public anxiety about crime and effected court closures that continue to limit prosecutors’ ability to resolve the cases they file.

The consequences of filing too many dismissible cases are tremendous.

Survivors may be retraumatized or given false hope that their perpetrators will be held accountable. Persons charged may be held unnecessarily in pretrial detention, resulting in family disruptions, loss of employment, and other instabilities that increase the chances of future entanglement in the criminal justice system.

Overfiling also increases the burden on the court system and, notably, on already severely underfunded public defender’s offices.

Rebecca Dunlea

Community safety suffers because fewer taxpayer resources are kept available for prosecutors to address cases with serious public safety implications such as gun violence and sexual assault.

Instead of pushing your local prosecutor to pursue more cases, you should insist that they pursue those that have the biggest impact on public safety. This should not be a partisan issue; the goal is to work smarter in the interest of justice.

Demand accountability and external reporting to learn what happens to cases once they are filed – potentially through the use of a public-facing data dashboard.

Don Stemen

Prosecuting everything does not improve community well-being and does not deliver on the promise of justice.

This report is part of the Prosecutorial Performance Indicators (PPIs), which is a research and technical assistance project launched in 2017 by researchers from Florida International University and Loyola University Chicago. It is supported by the Safety + Justice Challenge at the John D. and Catherine MacArthur Foundation.

Additional Reading: Memo to Prosecutors: Visit Your Local Prison.

Besiki Luka Kutateladze, Rebecca Richardson Dunlea, Melba Pearson and Don Stemen are co-managers of the Prosecutorial Performance Indicators survey.

 Besiki Luka Kutateladze, Ph.D.,  is an associate professor in the Department of Criminology and Criminal Justice at Florida International University. Rebecca Richardson Dunlea is an assistant professor in the FIU Department of Criminology and Criminal Justice and the Center for the Administration of Justice.

 Melba V. Pearson is a civil rights and criminal law attorney who works in the Center for the Administration of Justice at FIU.  Don Stemen, Ph.D., is an Associate Professor and Chairperson in the Department of Criminal Justice and Criminology and a member of the Graduate Faculty at Loyola University, Chicago.