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Non-Felony Prosecution - A Best Practices Review

Summary

This is a review of non-felony offense prosecution in Minnesota. Non-felony offenses -- gross misdemeanors, misdemeanors, petty misdemeanors, and ordinance or rule violations -- constituted nearly 99 percent of all Minnesota offenses in 1995. County and city attorneys have responsibility for prosecuting these offenses and seeing that justice is served.

This review focuses on the characteristics of effective and efficient prosecution offices. We did not study the many actions taken by individual prosecutors involved in a case, nor did we analyze different approaches for dealing with criminal behavior in other ways, such as through "restorative justice" programs.

Non-Felony Prosecution Authority in Minnesota

Each of Minnesota's 87 counties has an elected county attorney who prosecutes felony offenses. Most of these county attorneys also have responsibility for at least some non-felony prosecution. County attorneys located outside the seven-county metropolitan area generally have jurisdiction over more gross misdemeanors than those in the metropolitan area where city prosecutors have that duty. Although the types of offenses for which city prosecutors have authority vary somewhat around the state, the city prosecutors' authority is always independent of the county attorney. That is, county attorneys have no oversight role over city prosecutors located in their county.

The extent of authority for non-felony prosecution varies from county to county. About 14 percent of county attorneys' offices prosecuted all non-felony offenses in their counties in 1995. <FN - Data on prosecution arrangements come from a survey we conducted of county attorneys and city prosecutors. We received responses from 77 percent of the 87 county attorney offices and 68 percent of the 533 cities we surveyed.> In these counties, no municipality had its own city prosecutor. In about 59 percent of Minnesota counties, the county attorney prosecuted non-felony offenses on behalf of some but not all communities. In another 27 percent of counties, the county attorney prosecuted non-felonies on behalf of no community in the county. All cities in these counties employed their own city prosecutors. (See the following figure.)

When looking at Minnesota cities, we found that about half of those we surveyed relied on the county attorney for non-felony prosecution in 1995 and most of the rest retained private law firms for prosecution duties. About a dozen cities, most with populations of at least 50,000, had their own full-time attorneys on staff. A handful of cities created joint powers arrangements to jointly provide prosecution services through a common provider.

Goals, Actions, and Best Practices

Based on established standards and laws, we identified four primary goals for effective and efficient prosecution offices. These goals come from statutes, rules of criminal procedure and professional conduct, and national standards for criminal justice, with which prosecutors are already familiar. Prosecution offices should:

  • Fulfill their statutory obligations and adhere to relevant ethical standards.

  • Encourage just and fair criminal proceedings and resolutions of infractions that are unhampered by unjustifiable expense and delay.

  • Communicate clearly with local law enforcement personnel, and encourage effective communication from law enforcement, in a shared effort to combat crime and promote law-abiding activity.

  • See that justice is served by maintaining a judicious balance between protecting the rights of society and those of individuals involved in cases.

We identified nine actions (described below) that we believe will help prosecution offices reach these goals. They are not the only actions that affect the performance of prosecution offices, but they are important for successful prosecution. We used the goals and actions as a framework for identifying best practices in prosecuting non-felony offenses. Along with a brief description of the nine recommended actions, we describe examples of how some Minnesota counties and cities have implemented them in actual practice.

1. Provide Efficient and Effective Service Delivery

The responsibility for prosecuting misdemeanors varies from county to county in Minnesota, as described earlier. Authority for non-felony prosecution ranges from counties where county attorneys handle all non-felony offenses to those where each municipality has its own prosecutor. We grouped counties by the extent to which they provide prosecution services on behalf of cities within their borders. We compared the groups by certain indicators of effectiveness or efficiency including provision of misdemeanor-related training to law enforcement, use of a diversion program for diverting certain cases from prosecution, and number of non-felony cases per attorney. With one exception, we found that county attorney offices generally performed equally well in misdemeanor prosecution in 1995 regardless of the extent of responsibility for non-felony prosecution lodged with the county attorney.

The exception was that counties where the county attorney had responsibility for prosecuting non-felony offenses on behalf of all or most cities tended to be more efficient than others in terms of number of cases per full-time equivalent (FTE) staff. This was true when looking at cases per both FTE attorneys and other FTE personnel, such as legal assistants and support staff.

Besides efficiencies in personnel, county attorneys with countywide non-felony responsibility enjoy other advantages because of their arrangement, although some may not be easily quantifiable. Countywide prosecution of non-felonies offers: consistency in charging crimes throughout the county; reduced duplication of effort because one prosecutor appears in court for several jurisdictions; ease in determining defendants' involvement in multiple offenses; and continuity with crimes that can be charged differently depending on criminal history, degree of injury, and the defendant's relationship to victims. It also eliminates questions about referring cases to another office.

At the same time, counties moving toward countywide prosecution of non-felonies would likely have to add staff to handle the influx of misdemeanor cases. Otherwise, questions may arise over the amount of attention the county attorney can provide to misdemeanors, petty misdemeanors, and ordinance violations when the office has to also prosecute the more serious crimes and felonies.

When analyzing Minnesota cities, we found that only the very largest cities had their own full-time, in-house attorneys. These cities' prosecution offices performed very well when compared to other cities as measured by our indicators of effectiveness and efficiency, such as availability of victim/witness assistance programs and costs per case.

When comparing cities that relied on either county attorneys or private law firms for prosecution services in 1995, we found that in general they received comparable levels of service but there were several exceptions. Cities relying on the county attorneys' offices for prosecution were more likely than cities using private law firms to have (1) victim/witness assistance programs available, (2) misdemeanor-related training for law enforcement, (3) a higher percentage of cases disposed at arraignment, and (4) prosecutor communication with local elected officials, professional organizations, and citizens.

On the other hand, private law firms were more likely to have broad training opportunities specifically tailored to employees' needs. Among cities using private law firms, those with larger populations were more likely than smaller cities to have victim/witness programs available, provide misdemeanor-related training to peace officers, communicate with elected officials and the public, and provide broad, targeted training to employees.

A small number of cities that joined together to contract for prosecution services have found efficiencies while receiving effective service. Several groups of cities that pursued joint contracts with either a private law firm or a city with its own staff attorney have received quality prosecution services, and even improved services, at reduced or equal costs.

The shared arrangements brought consistency in prosecution, improved relations with law-enforcement officers, better working relationships with judges, efficiency in the dispositions of cases and in court appearances, and often lower net prosecution expenditures for the cities. Similar advantages are possible in areas where one prosecutor represents multiple nearby jurisdictions, something that is common among Minnesota cities regardless of size or geographic location.

2. Maintain Good Relations with Local Law Enforcement

Prosecutors and law enforcement must work together for a criminal justice system that operates smoothly and functions well. Because successful prosecution is closely tied to effective police work, prosecutors should take steps to maintain good relations with law enforcement agencies. The steps include (1) maintaining ongoing, reliable contacts between the offices to provide information on cases as they proceed through the system and (2) offering training to peace officers to educate them on law changes and court decisions that affect their jobs and on practices related to searches, property seizures, and other potential evidentiary problems.

According to our survey, in 1995 nearly 48 percent of county attorney's offices and 44 percent of city prosecutor's offices had established a liaison with their local law enforcement agencies for communicating information such as the status of cases. Proactive communication by prosecutors with peace officers can result in less prosecutor time in court, more effective prosecutions, and, in turn, less time spent by officers in court awaiting appearances for hearings that are frequently postponed. In addition, particularly among county attorney offices, misdemeanor-related training for peace officers was common. About 85 percent of county attorney's offices and 47 percent of city attorney's offices offered misdemeanor-related training to peace officers in 1995.

3. Encourage Administrative Processes and Pretrial Diversion for Suitable Cases

For some cases, avoiding court proceedings may be a better and less costly alternative than prosecution. This can be done in essentially two ways: (1) through administrative processes designed to resolve violations of ordinances before they reach the criminal justice system and (2) through the criminal process by diverting cases from prosecution when the prosecutor deems them appropriate. We include a discussion of administrative processes in this review even though they occur outside of the prosecutor's office because they currently serve as alternatives to prosecution in some communities and can help focus the prosecutor's workload on other offenses better suited to traditional prosecution.

First, local governments have used administrative processes to handle certain violations in lieu of using the criminal justice system. These administrative processes are intended to provide an effective, efficient, and less formal alternative to court proceedings. Cities with processes for resolving building code violations prior to or in lieu of prosecuting such violations are one example. These processes avoid using the criminal justice system unless the defendant appeals the decisions rendered administratively.

However, although state statutes authorize jurisdictions to adopt ordinances, they do not provide express authority for imposing administrative penalties. Jurisdictions using administrative processes have justified the processes as means for enforcing ordinances they adopt. Recognizing these issues, the Non-Felony Enforcement Advisory Committee (NEAC), set up in part to examine issues of proportionality among state statutes and local ordinances regarding criminal offenses, recommended in its 1997 report that the Legislature authorize local governments to enact ordinances providing for administrative civil penalties.

Second, after a case enters the criminal justice system, pretrial diversion programs offer an alternative for resolving certain cases outside of the courts. Diversion allows the prosecutor to decide against prosecution when more can be gained by offenders attending treatment or providing community service than by having their cases adjudicated. Through diversion, defendants are required to meet certain conditions and remain crime-free in exchange for having charges dismissed or not filed.

As part of prosecutorial discretion, the decision to divert suitable cases from prosecution can help prosecutors preserve the public interest and benefit society at large. The diversion of appropriate cases can benefit the crime victim, reduce the number of less serious offenses on the court docket, encourage the collection of restitution, place the defendant in appropriate rehabilitation programs, and contribute to minimizing recidivism for particular offenders. Pretrial diversion of appropriate cases can be useful when limited resources force prosecutors to use their discretion in setting priorities among cases and spend higher proportions of resources on cases where more are warranted.

According to our survey, in 1995 about 70 percent of county attorney's offices diverted certain cases from prosecution and 40 percent had specific diversion programs designed for certain offenses. Among city prosecutor's offices, 80 percent diverted cases and 40 percent had specific diversion programs. Most of the diverted cases in 1995 resulted in later dismissals of charges or not charging the case. A majority of county attorneys reporting on diverted cases indicated that at least 95 percent of diverted cases resulted in charges dismissed or not filed. City prosecutors reported similar rates.

Prosecutors have to establish standards for the program and ensure they are uniformly enforced. For example, eligibility standards are needed to determine the types of offenders and offenses suitable for diversion. In addition, prosecutors typically have to work with probation officers or others from court services to administer the program and monitor defendants.

4. Use a Victim and Witness Assistance Program

Prosecutors should, either through their own office or by using community organizations and other resources, avail themselves of victim and witness assistance programs. Prosecution efforts to develop effective relationships with victims and witnesses encourage these individuals and others to report crimes and follow through with identifications and testimony, thus aiding prosecutors' cases.

According to our survey, victim/witness assistance programs were available in the jurisdictions of about 75 percent of county attorneys and slightly more than 55 percent of city prosecutors in 1995. Victim/witness assistance tended to be available in jurisdictions with larger populations and heavier caseloads. Services to victims and witnesses ranged from notification about case developments to advice on issues of personal safety, and many involved individuals outside the prosecutor's office.

Not all services provided through a victim/witness program are necessarily appropriate for prosecutors to provide directly. For instance, prosecutors may have an obligation to pursue a case even when the victim is reluctant to cooperate; in these cases, victims may be more willing to discuss issues with an intermediary, such as a victims' advocacy organization. Advocates are usually trained to provide services such as information on emergency shelter and transportation to court, freeing up attorneys to perform their legal duties. County attorneys indicated most frequently that county funding financed their victim/witness programs. City prosecutors indicated most frequently that either private, non-profit organizations or the county provided primary financing for the victim/witness program in use.

5. Establish Guidelines to Set Priorities among Cases

Written guidelines establish parameters and provide uniformity for prosecutors' decisions about charging and prosecuting cases. Guidelines should reflect the prosecutor's discretion in determining which cases will be accepted for prosecution, which cases can acceptably be disposed of by a plea to a reduced charge, and which cases are most appropriate for disposition by pretrial diversion, plea agreement, or trial. Using guidelines helps ensure that similar cases are treated similarly, protects against unfairness and the use of inappropriate criteria (such as religious affiliation), and provides a basis for justifying prosecutors' discretionary decisions.

Each prosecutor's office must write its own guidelines for setting priorities among cases because no single set could reasonably apply statewide. According to our survey, about 52 percent of county attorneys and 25 percent of city prosecutors had or were developing written guidelines in 1995. Smaller jurisdictions were less likely to have written guidelines than more populous ones.

6. Maintain Access to Adequate Equipment and Facilities

Prosecution effectiveness and employee productivity depend on the availability of equipment needed to perform the job. We studied two components: computerization and access to research equipment and facilities.

From a statewide perspective, the computerization of information systems associated with non-felonies is lacking. The state's criminal history data do not include misdemeanor or petty misdemeanor offenses and the state maintains a database only of misdemeanor traffic offenses. Although information systems exist at both the state and local government levels, they are not integrated. We know of no examples where all of a jurisdiction's criminal justice participants -- prosecutors, police, probation officers, the courts -- share access to common information systems.

Aside from this statewide issue, many prosecutors' offices can improve their efficiency and accuracy by computerizing case management. We found that about 37 percent of county attorney offices and 26 percent of city prosecution offices had or were developing computerized case-management systems in 1995.

Effective record keeping, typically through computerization, allows the prosecutor's office to manage the current caseload as it flows through various stages in the judicial process and as it affects different personnel in the office. It is also a useful management tool for planning and administering the office's budget and staffing and measuring internal performance. According to our survey, prosecution offices that used computerized systems generally also had the capability to: automatically produce letters, disposition reports, and other documents without re-entering pertinent data; monitor information on victims and witnesses; and communicate electronically with other agencies.

In the legal profession, information and knowledge are fundamental to effectiveness -- making library facilities and research databases especially important. For efficiency, lawyers need easy access to information to prepare their cases. We found that in 1995 almost three-quarters of county and city prosecutors' offices had access to adequate law libraries and about 43 percent of each said they had access to legal research databases.

7. Assure Prosecutorial Competence, Productivity, and Independence

Because an office's greatest asset is its employees, prosecution offices need to foster a high caliber work force and help employees work most productively. In addition, because prosecutors must avoid potential conflicts that impair their independence or impede their ability to ensure just and fair criminal proceedings, they have to be prepared to identify such conflicts and call on help from outside their own employees when circumstances warrant.

Many things contribute to a productive, independent work force. For instance, prosecution offices should encourage appropriate training for attorneys and other office employees. Training should be specific to the job at hand and tailored to employees' own skill levels and identified needs. According to our survey, about 37 percent of county attorney's offices and 15 percent of city prosecutor's offices required specific courses to meet identified training needs. About 82 percent of county attorney's offices and 38 percent of city prosecutor's offices reimbursed their prosecutorial staff for continuing legal education in 1995.

Second, prosecution offices should adopt hiring practices that assure high professional skills. Regardless of whether the chief prosecutor is an elected or appointed official, prosecutors should select their assistants and staff based on merit rather than on political connections.

Third, prosecution offices need standards for dealing with conflicts of interest. Prosecutors must prepare in advance a consistent, fair process to identify cases that present conflicts of interest and take appropriate courses of action, such as appointing special prosecutors.

Fourth, prosecution offices can use paralegal staff or legal assistants to increase productivity and efficiency by assigning certain duties to these staff and reserving for attorneys other functions requiring a law degree and legal experience. Although paralegal staff cannot substitute for attorneys-at-law, they can be used for other duties, such as records checks. We found that in 1995, paralegals and legal assistants were most often used in Minnesota counties and cities with high non-felony caseloads and commonly worked only part time on non-felony offenses.

8. Set Goals and Objectives for the Prosecutor's Office

A prosecutor's office should set goals and objectives for its work and periodically measure how well the office meets those objectives. Formally setting goals and objectives makes office priorities clear and explicit to employees, generates information for internal monitoring of the office's success, and creates incentives for employees to work productively toward common goals. Formal goals and objectives also communicate the prosecutor's priorities clearly to law enforcement, others who interact with the office, and the general public.

Establishing performance measures is not easy, particularly for public institutions and for services, like prosecution, in which results are not always tangible or quantifiable. In addition, the use of certain measures in isolation could actually lead to unintended consequences. Nonetheless, prosecution offices that set goals for themselves, and design measurable objectives to assess how well those goals are met, are positioning themselves to improve their own performance.

The same performance measures may not work for all prosecution offices, although most prosecutors may share certain goals, such as maintaining open and clear communication with local law enforcement personnel. How this goal is put into practice will differ among jurisdictions. One might improve misdemeanor-related training for officers, others might work on reducing the number of unnecessary court appearances for peace officers, while still others might seek improved law enforcement involvement with case disposition.

While many prosecutors in Minnesota appear interested in measuring office performance, few follow a formal process of setting goals for prosecution and measuring progress towards them. We found that about 55 percent of county attorneys and 50 percent of city prosecutors had or were developing informal methods for measuring office performance in 1995. Only 3 percent of county attorneys and no city prosecutors indicated they followed a formal process of setting goals and objectives for misdemeanor prosecution.

9. Communicate with Others Involved in the Criminal Justice System and Participate in Efforts to Improve the System

Prosecutors should participate in efforts to improve communication with others in the criminal justice system as well as with members of the public. As stakeholders and visible participants in the judicial process, prosecutors should be involved in legal reforms and efforts to improve the effectiveness and fairness of the system.

Such efforts extend to interacting and improving relations with state legislators. Prosecutors' participation is needed to make the Legislature aware of the financial implications of laws it debates and adopts.

Of particular interest to non-felony prosecutors is the large proportion of cases in which defendants represent themselves, known as pro se litigation. Many pro se litigants lack a general familiarity with the courts or understanding of the criminal justice system. Prosecutors have a responsibility to deal fairly with pro se litigants and take steps that reduce complications associated with them.

Outreach efforts also extend to communicating with the public regarding criminal activity and crime prevention. Positive interaction between the prosecutor's office and the public fosters citizen support of efforts to reduce opportunities for crime. Prosecutors' involvement in these outreach efforts can benefit public relations and contribute to overall crime prevention efforts.

Conclusion

Although authority for prosecuting non-felony offenses in Minnesota varies from county to county, we found examples of successful prosecution around the state in counties of all sizes and locations. Whether the county attorney's office had non-felony prosecution responsibility on behalf of all, some, or no cities in the county did not appear to affect the effectiveness of prosecution. On the other hand, we noted a difference among counties in cases per FTE personnel. Counties where county attorneys were responsible for most cities' non-felony prosecution were more likely than others to have efficient ratios of cases to attorneys and other office personnel.

Most cities in Minnesota received prosecution services through either the county attorney or a private law firm in 1995, according to our survey. Only about a dozen of the largest cities had their own full-time prosecutors on staff and they rated high on our measures of effectiveness and efficiency. Cities that joined with others for shared prosecution services enjoyed certain advantages over others.

When comparing cities using private law firms and those using county attorneys' offices, our indicators of effective and efficient prosecution showed only small differences for the most part. However, the notable exceptions were measures regarding victim/witness assistance programs, training for law enforcement officers, arraignment dispositions, and communicating with local elected officials and citizens. Cities that relied on the county attorney's office were more likely than others to have these services available. On the other hand, private law firms were more likely to concurrently offer employee training, reimburse for training expenses, and require training that was targeted to specific employee-training needs.

We recommend that local jurisdictions and prosecution offices consider nine actions characteristic of effective and efficient prosecution. Although other actions may also contribute to successful prosecution, we believe these nine are fundamental. The nine actions can be implemented in a variety of ways and several county and city prosecution offices around the state provide good examples of how these actions have worked for them.

More Information

The Program Evaluation Division was directed to conduct this study by the Legislative Audit Commission on May, 1996. For a copy of the full report, entitled "Non-Felony Prosecution - A Best Practices Review", (97-07), 93 pp., published on April 17, 1997, please call 651/296-4708, e-mail our office at Legislative.Auditor@state.mn.us, or write to Office of the Legislative Auditor, 658 Cedar St., St. Paul, MN 55155.

Staff who worked on this project were Jody Hauer (project manager), Jennifer Moenck Feige, and Mary Jackson.

Office of the Legislative Auditor ♦ Room 140, 658 Cedar St., St. Paul, MN 55155