SB 1018: Connecticut’s effort to increase prosecutorial accountability and why it will not work
Prosecutors hold people’s lives in their hands. Their decisions shape not only the futures of defendants, prisoners, and formerly incarcerated people, but also the overall extent of mass incarceration. Currently, the United States is the international leader for incarceration with almost 2.3 million people behind bars. Connecticut’s incarceration rates are no exception: before the COVID19 pandemic, about 60,000 Connecticut residents were locked up, under probation, or on parole. Roughly 16,000 of those people were incarcerated.
But the solution to mass incarceration is not simple; structural barriers exist which prevent the current legal procedures from holding prosecutors accountable. Connecticut’s Senate Bill 1018 is intended to address prosecutorial power and break down barriers to ending mass incarceration—but does it?
Defendants’ sentences and their futures are primarily controlled by prosecutors and state’s attorneys. So, Senate Bill 1018 was introduced to increase prosecutorial accountability and reduce sentencing disparities between judicial districts. The bill’s provisions, however, will not solve these problems despite the good intentions of its proponents.
Not all of the bill’s solutions are unfounded. For example, one of its provisions requires state’s attorneys to check in with the Criminal Justice Commission every two years to increase prosecutorial accountability. The agency is responsible for appointing state’s attorneys. Those meetings would also be open to community members. As it stands now, state’s attorneys rarely answer to a broader oversight organization, keeping much of their work away from the public eye.
Community input and the Criminal Justice Commission’s recommendations will tear down systemic barriers caused by local prosecution by building community trust which is so often lacking —particularly in disadvantaged communities.
But, Senate Bill 1018 does not solve Connecticut’s much larger problem: outcomes for crime victims and defendants vary based on zip codes because judicial districts operate independently of one another. This practice means two people who commit the same crime can receive entirely different sentences. Justice, however, should not depend on where one lives or who prosecutes a case. Senate Bill 1018 proposes a solution to this disparity by implementing uniform policies during decision and litigation phases where prosecutors usually exercise a large amount of discretion.
At first glance, uniform policies seem like a logical solution. But there is an alarming amount of opposition to Senate Bill 1018 —including from reputable defense attorneys. Why?
While not favored, the core of the criminal justice system is driven by plea bargains. Nationwide, 95 percent of criminal cases end in plea bargains. Without this process the entire criminal justice system would screech to a halt and flood the court dockets, harming the lives of defendants. The most crucial part of plea bargaining is flexibility.
Although the idea of greater prosecutorial accountability is important, it is also imperative to maintain some flexibility. Too much flexibility while charging defendants can lead to unfair sentences; too much inflexibility results in more punitive sentences than intended. Rigid constraints are what led to mandatory minimums —sentencing laws which force judges to hand down a minimum prison sentence based on the charges brought forth by prosecutors against defendants. These minimums incarcerate people for unnecessary lengths of time, increase incarceration rates, and continue to plague the criminal justice system today.
Therefore, the uniform policies imposed by Senate Bill 1018 increase prosecutorial accountability at the expense of defendants’ futures.
One of Connecticut’s most experienced criminal defense attorneys and former President of the Connecticut Criminal Defense Lawyers Association, William F. Dow, III, wrote in opposition to Senate Bill 1018 saying:
The bill “deprives prosecutors of the flexibility they need to have to adequately and appropriately represent the public interest in securing a proper and effective application of criminal law to all involved. Not every crime charged requires a maximum sentence. Not every crime charged requires a mandatory minimum sentence. Not every crime charged requires incarceration.”
Senate Bill 1018’s intentions are good, but its efforts to standardize the administration of justice will not solve the issue of prosecutorial accountability. Attorney Dow says it best: “Uniformity is not fairness. Individual treatment in the application of the law leads to fairness.”
Implementation of the bill’s proposed formal biannual check-ins will shift Connecticut away from a prosecutorial system which lacks transparency between the community, the Criminal Justice Commission, and state’s attorneys. Despite this, Senate Bill 1018 fails to preserve enough prosecutorial independence to promote fairness. The proposed uniform policies are too rigid to be applied to important details which vary case to case. Sentencing should not vary drastically from judicial district to judicial district; simultaneously, however, justice cannot be standardized.
Connecticut leaders need to increase prosecutorial accountability to restore confidence in a system that often applies justice inequitably —but not through Senate Bill 1018.
Olivia Louthen is a student in the public policy and law program at Trinity College.
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