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.