Untying the Hands of Prosecutors: The Role of Moral Imagination in Equitable Decision-Making

Background & Purpose: The crucial role of prosecutors, both in contributing to mass incarceration and the movement to decarcerate, has perhaps never been as highlighted as it has been within the last several years. This heightened recognition has led to increased momentum behind the “progressive prosecutor” movement, but little is known about the decision-making processes of this new wave of prosecutors, and if/how they differ from traditional prosecutorial practices. This study uncovers the thinking that undergirds the responsive discretionary decisions (i.e., decisions that aim to benefit the defendant) made by “progressive prosecutors” in prosecution-led diversion programs called deferred prosecution programs, and how this nontraditional prosecutorial logic can be leveraged to advance efforts to decarcerate and excarcerate.

Methods: Two Midwestern deferred prosecution programs (Program A and Program B) located in two different states, both run by “progressive” district attorneys, were used as the field sites. The researcher employed a 12-month, multi-method, grounded theory approach for this study, observing a total of 385 individual cases and interviewing all prosecutors associated with each site’s deferred prosecution program (Program A n=4 and Program B n=5). Responsive discretionary decisions made by prosecutors across both sites were tracked to uncover patterns, and field notes and interviews were inductively and iteratively coded.

Results: The findings show that (a) prosecutors in Program A extended responsive discretionary decisions to defendants deemed compliant who posed no foreseeable liability; (b) prosecutors in Program B made responsive discretionary decisions for defendants who would traditionally be viewed as “undeserving” and/or “risky”; and (c) Program B’s prosecutors made these variant decisions due to a more developed moral imagination. I argue that the moral imagination of Program B’s prosecutors is anchored by three components: (1) recognizing the importance of understanding the context of a criminal charge, (2) questioning the legitimacy and/or efficacy of the criminal legal system, and (3) considering the long-term impacts of their decisions.

Discussion: The presence of a developed moral imagination among “progressive prosecutors” is an immense opportunity that can be seized upon to greatly impact mass criminalization and incarceration. What is needed is a guided cultivation and execution of prosecutorial moral imagination. This guidance must focus on the ways that prosecutors can use their decision-making power to shrink the overall size of the system and redirect funds to community-based social service providers.