via CommonWealth Magazine
by Jack Corrigan

IN RECENT YEARS, Massachusetts has made significant progress in the direction of criminal justice reform. The credit goes to progressive thinkers in the Legislature, the attorney general and several district attorney offices, ballot initiatives legalizing marijuana, and an engaged and conscientious Supreme Judicial Court. The time is ripe to change the way we charge people with crimes in the first place.

One sign of progress is that culture itself has changed in much of the system.

Prosecutorial discretion, and evolving thinking by probation officers and judges about treating substance abuse as primarily medical rather than criminal, has played an important part in moving the system towards rehabilitation instead of punishment.  Drug possession charges are often dropped if the defendant passes a drug test, and can demonstrate a commitment to treatment efforts.

Yet the human inflow into the criminal justice system – and the unfortunate result of a paper trail that will follow an individual around – continues at a brisk pace.  In 2020, Trial Court records show 141,327 new cases in the district courts. Despite the pandemic, this was not much of a falloff from the 170,781 new cases in 2019.The sheer volume of cases raises the question: Why not lessen the inflow of cases into the court system in the first place?

Roughly 44 percent of district court cases are motor vehicle-related, which includes operating under the influence but also less serious matters like driving with an expired registration. Less than 20 percent are offenses against the person, and barely 1 percent are weapons charges.

Several reform efforts were directed at minimizing the collateral consequences of criminal prosecution, especially the legislation allowing the sealing of criminal records.  Sealing, by definition, comes after the fact.

The current charging system looks like this:  After an arrest, criminal complaints are issued by clerk-magistrates after a police officer presents evidence of probable cause, most often a written police report.  Since the arrest already required a determination by the police officer of probable cause, the complaint usually issues routinely.  The district attorney’s office ordinarily doesn’t get involved until the arraignment stage, when the defendant is required to appear in court.

Many cases are dismissed at arraignment, sometimes on payment of court costs.  Many more are dismissed, or resolved with minor sanctions like a continuation without a finding (followed by a dismissal), after multiple court appearances.

A lot of attention has been paid to Suffolk District Attorney Rachael Rollins’ written policy of presumptive declination of prosecution for 15 specific offenses. While Rollins’ policy rankled some, it was defended in part because such an approach was already in effect.  Massachusetts already ranked at the bottom among the states in per capital incarcerations, as a few of the other district attorneys pointed out, and the exercise of discretion and compassion for minor charges is the prevailing ethic.

My suggestion is this: Massachusetts should adopt the practice, prevalent in many other states, of having the district attorney’s office screen the applications for criminal complaints in the district courts.  (The grand jury process, run by the district attorney, already insures this screening function in the superior court.)

Why would this be better? Well, for one, the DA’s office could choose not to prosecute at the application stage, which would keep the arrestee out of the court system, and eliminate the subsequent paper trail.  It would also eliminate the necessity for appointed counsel in many of these cases, and what amounts to make-work for clerks, prosecutors, and defense counsel for cases that are going to be dismissed.Second, the assistant district attorney, as a lawyer, is bound by Rule 3.8 of the Massachusetts Rules of Professional Responsibility – “Special Responsibilities of a Prosecutor” – which prohibits bringing a charge unless it is supported by probable cause.

As most police officers and many clerk-magistrates are not attorneys, they do not come with the same critical lens, and often over-charge. It takes time, energy, and often a complicated negotiation with police and defense counsel to rectify an overcharged case.  The optics of “reducing a charge” can also inhibit less experienced prosecutors worried about public opinion.  This creates incentives to kick the can, and the case, down the road.

For many of the misdemeanors now clogging the courts, an arrest and detention for a few hours is sufficient punishment.  Unless the crime is serious enough that we want to incarcerate, or impose supervised probation conditions, continued prosecution doesn’t accomplish very much.

Streamlining the complaint pipeline with scrutiny by an assistant DA would also free prosecutors to focus on crimes that warrant significant attention. For example, domestic violence cases often present witness cooperation challenges that require careful and personal attention, evidentiary challenges that require legal research, and background investigative work  that could inform thoughtful approaches to sanctions. Society would benefit from attorney supervision of the charging process.

Jack Corrigan teaches a seminar on criminal prosecution at Harvard Law School.

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