Posted: December 1st, 2021 | By: Amelia Nitz Kennedy
Since 1989, the National Registry of Exonerations has tracked more than 2,800 exonerations in the United States — 129 of them recorded just last year. Together, these cases have resulted in individuals collectively losing more than 25,000 years of their lives to wrongful imprisonment.
In a legal system designed, when functioning as it should, to bring justice to victims and hold those who commit crimes accountable for their actions, how do these kinds of mistakes occur, and what might be done to prevent them?
This is at the heart of the Accountable Prosecutor Project at Wake Forest Law. The newly established research and public information project is aimed at better understanding how prosecutors do their jobs, what factors influence prosecutorial conduct, and the systems that can help promote prosecutorial accountability.
“There’s a need in research, in policy, and in practice for more information about how prosecutors are and can be accountable for what they do,” said Project Director Eileen Prescott. “This project is oriented toward looking at multiple aspects of what it means for prosecutors to be accountable — not only for misconduct, but to themselves and their communities, too.”
Before joining Wake Forest Law to manage the new research effort, Prescott worked as a law clerk in Chicago’s Cook County State’s Attorney Office and as an Assistant District Attorney in Philadelphia, both among the largest prosecutor’s offices in the U.S. Now, she coordinates the efforts of the law school’s deep bench of faculty with expertise in criminal law who are contributing to the project’s efforts.
The group includes University Vice Provost and Wake Forest Law Professor Kami Chavis, who is also the founding director of the law school’s Criminal Justice Program and a former federal prosecutor; Professor Ron Wright, a leading criminal justice scholar who, before entering academia, was a trial attorney with the U.S. Department of Justice; Clinical Professor Mark Rabil, who launched and has directed the law school’s Innocence and Justice Clinic since 2009 and was formerly an assistant capital defender in North Carolina; Assistant Professor Alyse Bertenthal, who previously worked as an attorney for the ACLU Criminal Law Reform Project and whose interdisciplinary research looks at the relationship of law, culture, and the environment; and Assistant Professor Esther Hong, whose scholarship focuses on the intersection of criminal and juvenile law, and who formerly represented indigent youth and adults in juvenile delinquency and criminal appeals.
Together, their aim is to conduct new research that will provide greater insight into the prosecutorial role — research that the group hopes individual prosecutors, their offices, and others working in the criminal legal system will find useful.
“The need for greater research in this area is clear, and we want the project to result in helpful information that prosecutors can use to inform policies that deepen community trust,” said Prescott.
Understanding the role of prosecutors
The role of a prosecutor is essential to the legal system. Their jobs are complex, encompassing a wide range of duties and decision-making in pursuing the fair administration of justice.
Among other things, they have the authority to decide whether to bring charges in a case and what those should be, assess evidence and determine if any of it could clear a defendant, negotiate plea deals, help select members of a jury, and try cases.
“Prosecutors have an incredibly important role in our society, and we know that this role carries with it vast discretion,” said Professor Kami Chavis, who was involved in a wide range of criminal prosecutions as a former Assistant U.S. Attorney for the District of Columbia. “While there is often this focus on policing because it is the entry point into the criminal justice system, a prosecutor’s office and their policies can be really good barometers of what’s happening in the criminal justice system, too.”
Chavis says she sees the project as an opportunity to continue to build upon the work of Wake Forest Law’s Criminal Justice Program, which for the past seven years has sponsored symposia and speakers on issues related to criminal justice.
As part of the Criminal Justice Program, Chavis and Wright, along with Wake Forest Law Professor Gregory Parks, developed the Jury Sunshine Project, which examined felony jury trial selection across North Carolina. Chavis says she is interested in exploring as a part of the new project how prosecutors across a broader swath of states use peremptory challenges to strike potential jurors.
By studying behavior like peremptory strikes or charging decisions, the project could build on these previous efforts and provide further information that helps prosecutors be more accountable to their communities, as well as suggest approaches for prosecutors to maintain community trust.
The project is also an avenue to examine how prosecutors view their own roles within the criminal legal system, and how that can be impacted by the secondary trauma many experience throughout their careers, according to Professor Mark Rabil. Such trauma, if ignored, can lead to unintended burnout, stress, and poor decision-making, he says.
“Many young attorneys who come out of law school have this deep drive to be compassionate and to help people,” said Rabil. “We need to better understand and foster ways to support prosecutors in being able to maintain the compassion that was their basis for entering the job. If we can figure out ways to recognize that there is trauma, then I think we can help improve decision-making.”
Through his work with the project, he hopes to increase understanding of how systems and situations impact prosecutorial functions, and the factors that might influence misconduct.
“One of the goals is to create awareness in future lawyers that the system, although it largely works accurately, has a lot of room for improvement,” said Rabil.
Exploring community accountability
When it comes to defining accountability, Professor Ron Wright sees it as two-fold: an accountable prosecutor is one who both stays within the bounds of the law and is responsive to the priorities of their communities.
“We want to look at all the various ways that prosecutors do this, most of the time successfully,” said Wright, whose research under
the project will explore the ways in which prosecutor offices share data and information with their communities, as well as how they manage and communicate priorities within their own offices.
Though prosecutors are public officials, often their decisions are made out of public view, making proactive transparency essential. To that end, Wright is working with student research assistants to begin examining how some of the country’s largest prosecutor’s offices publicly disclose information and data about their activities.
“Our students expand the reach of this work,” said Wright. “It means we can offer more than just a case study. We can survey the
landscape and provide information about how common or uncommon a practice is.”
Teala Volkamer (JD ’23) has worked with Wright on the project, as well as on another survey of absolute immunity laws across various
jurisdictions.
“It helps bring that real-world component in,” said Volkamer, of the experience conducting research outside of the classroom. “Being
able to work on something relevant and tangible, and where you can see the impact it can have on people’s lives, is a good reminder of why I’m studying law and what I want to do as a lawyer.”
Informing the profession
During what he describes as a “change moment for criminal law,” Wright believes the project can offer grounded insight into the prosecutorial function.
“Success looks like building a body of original research that tells us things about prosecutors that we never knew before — and confirmation from people in the field that they find it relevant in some way,” he says.
It’s a sentiment echoed by Professor Alyse Bertenthal, whose research with the project will examine how state and local level actors prosecute environmental crimes. With support from student research assistants, she will collect interview and numerical data that will help inform discussions about the criminal enforcement of environmental laws, as well as the potential impacts of that enforcement on environmental justice.
“We don’t want to propose solutions without having a better understanding of what’s going on,” said Bertenthal. “We need to start by collecting data, so that if and when solutions are offered, they are based on something that has been deeply researched and analyzed.”
As Professor Esther Hong puts it: “We want to get it right.” At a time when discussions about prosecutorial power are prevalent, one of
the project’s priorities is to ensure that the empirical data and sources it is reviewing are robust.
“Ultimately, we want to understand the ways that various actors can have a role in creating a more just criminal legal system,” said Hong.
Continuing the efforts begun over the last year, student research assistants are hard at work this semester collaborating with faculty on the project, with the goal of publishing initial findings beginning in the spring.
This story originally appeared in the 2021 issue of the Wake Forest Jurist.
