Timely justice: How case screening improves efficiency, effectiveness, and fairness — Knowledge Hub — Justice Innovation Lab

Why this matters

The criminal justice system affects thousands of lives daily, yet we know surprisingly little about what works in prosecution. Though there is extensive research on what drives crime, and there are many groups that study the impact of prison and sentencing, there is little analytical research with regard to prosecution. This is a massive gap in social policy—while there is an evidential understanding of what drives crime, there is almost no rigorous analysis of society's primary choice of treatment: prosecution. The dearth of research has driven ideological stances in policy making, which in turn has limited innovation in the justice system.

What we know (and don't know) about prosecution

The prosecution process

After police arrest someone, prosecutors must decide whether and how to pursue charging the case based on two main questions:

• Is there enough evidence to prove guilt beyond a reasonable doubt?
• If the evidence is sufficient, do the facts of the case and the person's criminal history support an alternative to prosecution—diversion, specialty court, or a reduced plea offer?

For complex cases, these questions require careful consideration. For simpler cases like shoplifting or drug possession, the legal and factual questions are more straightforward. Yet in vertical prosecution offices, prosecutors often spend considerable time on both simple and complex cases due to overwhelming caseloads—a problem that has worsened since the COVID-19 pandemic.

Why delays hurt everyone

The need for better evidence

While the COVID-19 pandemic forced courts to innovate with virtual hearings and new scheduling practices, and led law enforcement to approach detention in a different manner, these adjustments were made out of necessity during extreme conditions. The extraordinary circumstances make it difficult to evaluate and generalize the impact of these process changes. In addition, there are very few rigorous studies of how changes to prosecution practices and policies affect outcomes. Rather, changes have typically been made without forethought as to how to measure whether the changes are creating the desired impact. Recently though, there have been a small number of researchers conducting high-quality research on various aspects of prosecution, such as:

Despite this progress, we still lack clear evidence of what works best in prosecution. The findings presented below reveal how utilizing data-informed insights to develop intentional methods for testing the impact of new policies and processes can lead to improved prosecutorial practices and local governance.

Findings

This section presents key results from the case screening RCT, highlighting its impact on efficiency, effectiveness, fairness, and savings within the criminal justice system.

Efficiency

• Local jurisdiction rules require that police submit a police report for an arrest within 30 days. Yet this rule may go unenforced where there is not a screening prosecutor in place to remind officers of the need to submit the report. This attention may explain why screened cases are nearly twice as likely as the control cases to resolve within 3 months (a statistically significant difference of 14.7% compared to 8.8%).
• There is a statistically significant difference in the number of days from arrest to disposition for screened and control cases that are resolved within the first six months. On average, screened cases are resolved within 82 days compared to 106 days for the control cases. With cases resolving nearly a month faster, it is likely that screening saves significant resources for all actors—prosecutors, judges, defense attorneys, arrestees, and victims.

The majority of the time savings in the faster resolution of cases likely comes from a faster time to dismiss or remand cases and, possibly, an overall increase in dismissal and remands for screened cases. Screened cases may be more likely to be dismissed or remanded than control cases for a number of reasons:

• Evidence suggests that pre-trial detention may make arrestees more likely to plead guilty, even when they are innocent. Reviewing cases earlier and removing cases without sufficient evidence alleviates the pressure to plead.
• Screening attorneys may be more detached or objective in reviewing a case and thus more likely to dismiss or remand a case than a prosecutor.
• For the types of cases screened, the screening attorneys have more experience than the line prosecutors receiving the case, and are thus more able to determine when the case is likely to be dismissed later for a variety of reasons.
• In contrast, line prosecutors may develop more information about a case to which the screening attorney would not be privy, and therefore may choose to pursue a case where the screening attorney would not.

Screened cases in the RCT were over 4x as likely to be dismissed or remanded within three months compared to control cases (18.3% compared to 4.2%), as shown in the chart below.

• We find a small, but statistically significant, difference in the average number of hearings for screened cases (2.73) compared to control cases (3.02). Though this difference is small—0.29—over the 1,482 resolved screened cases, this saved 400 hearings in 18 months.

As prosecutor caseloads grow in the jurisdiction, improving efficiency is of great importance. The case screening program helps to quickly remove weak cases from the system, allowing prosecutors and the courts to devote more resources to higher priority cases with greater impact to public safety.

Effectiveness

Screening helps to filter out low-level cases and cases with insufficient evidence from the system more quickly. Yet there is a balance to strike with a possible increase in risk to public safety.

• Overall, 26.4% of screened arrestees were rearrested after their first case in the experiment period compared to 27.2% for the control group. The difference is not statistically significant.
• Given that arrestees have had differing amounts of time to be rearrested, we look specifically at the percent rearrested within six months of the first arrest. We limit to six months since all arrestees have had at least this long to be rearrested after their first arrest in the RCT period. Using this definition, again we find no statistically significant difference in recidivism between screened (15.1%) and control (14.7%).
• To determine the risk from individuals with their case dismissed or remanded by a screener, we also calculate rearrest rates for three distinct groups of arrestees based on their initial case—those dismissed or remanded by the screener, those screened but not dismissed or remanded by the screener, and the control group. Again, we limit the recidivism window to six months after the initial arrest. To account for the fact that people are unlikely to be rearrested if in pre-trial detention, we measure the six-month window from the date of release. We find that there is not a statistically significant difference between the groups, though the lowest rate of rearrest is among those with cases dismissed or remanded by the screener.

In examining what individuals were rearrested for, across both screened and control cases, most rearrests were for theft, drug possession, and drug possession with intent to distribute. There were no rearrests for murder or attempted murder. Arrestees in the screened and control groups were rearrested for nearly identical crimes. The majority of rearrests for both groups were for theft, followed by drug possession or possession with intent to sell. Focusing on any differences with respect to crimes of violence:

• 3.5% of rearrests were for assault among the screened group, compared to 3.3% for the control group.
• 4.3% of rearrests were for domestic violence among the screened group, compared to 3.8% for the control group.
• 1.6% of rearrests were for a sex crime among the screened group, compared to 1.5% for the control group.

Overall, we find that screening does not harm public safety. Arrestees in the screened and control groups are rearrested at comparable rates for comparable crimes. In fact, arrestees with their cases dismissed or remanded by the prosecutor are rearrested at the lowest rate, though the difference is not statistically significant. We will continue to monitor this finding as it has implications for evaluating how prosecution impacts public safety.

Fairness

In South Carolina, after an individual is arrested, they appear before a magistrate judge for a bail hearing. Individuals unable to afford bail and not granted release will continue to be held in the county jail. Given the harmful effects of detention and incarceration, resolving low-level cases earlier in the process limits defendant contact with the justice system, thereby helping arrestees avoid some of the negative collateral consequences associated with detention. In examining differences in jail time, we include all arrestees, even those that do not spend time in jail.

• People who have their cases screened spend an average of 3 fewer days in jail compared to the control group—66 days compared to 69 days—though the difference is not statistically significant. This includes all arrestees who spent time in jail, regardless of the disposition of their case.
• Narrowing the comparison to the time spent in jail for arrestees with their cases dismissed or remanded, the average difference between screened and control cases grows to 10 days—14 days compared to 24 days. This difference is not statistically significant.
• Most importantly, when we compare arrestees with their case dismissed or remanded by the screener the difference is stark. As shown in the figure below, those whose cases are dismissed or remanded by the screener spend 9 days in jail compared to 24 for those in the control group. This difference is statistically significant and represents more than two fewer weeks spent in detention. The significance of this difference to the arrestee cannot be understated, as extended stays in jail increase the likelihood of disrupting an individual's life and might actually drive them to crime.
• Furthermore, arrestees with cases reviewed by the screener, but ultimately dismissed or remanded by the line prosecutor (because the screener did not dismiss or remand) also spend less time in jail than arrestees in the control group. These individuals average 18 days in jail—six days fewer than the control group—though the difference is not statistically significant.

Savings

• Using the midpoint of the estimated jail cost per arrestee, the difference in cost per arrestee between screened individuals with their case dismissed or remanded by a line prosecutor compared to the control group is $612 per arrestee. This means that the state saved an estimated $97,000 on the 159 arrestees dismissed or remanded by these prosecutors.
• The savings are even greater when comparing individuals with their cases dismissed or remanded by the screener to the control group. Again, using the midpoint cost difference, the state saved $1,530 per arrestee. Across the 128 individuals affected, the state then saved an estimated $196,000.

Screening half of eligible cases by two, part-time attorneys over an 18-month period then saved Charleston County an estimated $293,000 in jail costs alone.

• Taxpayers saved $14,000 in avoided hearings. This is based on the 400 fewer hearings for screened cases at an estimated $35 per hearing.
• Screening attorneys dismissed 140 cases. Arrestees are entitled to a defense attorney, with the court providing an attorney if an arrestee cannot afford one. But for these 140 cases, since the case was dismissed without further court filings, a defense attorney was not required (though one may still have been assigned prior to dismissal. Within the experimental period, 60% of all defense counsel for control and screened cases were public defenders. Assuming that 60% of the 140 dismissed cases then would have been assigned a public defender, that is 84 cases that public defenders did not have to staff. Based on the cost per contract defense attorney of $1,045 per case, the county saves $87,780—equivalent to a year's salary for the median public defender.
• To estimate the savings to the Solicitor's office, we compare the number of cases a part-time screening attorney resolved during the RCT to a group of line prosecutors. For the comparison group, SOL9 provided a list of eight line prosecutors who were likely to handle similar cases during the time period. Over the RCT period, a part-time screening attorney resolved 112 low-level cases whereas a full-time line prosecutor resolved 114 low-level cases. While the full-time line prosecutor has additional, more complicated cases to consider, this is evidence that a devoted screening attorney is able to resolve twice as many low-level cases in a year compared to a full-time line prosecutor.

Based on the above estimates, case screening saved nearly $400,000 in costs associated with jail beds, court time, and defense attorneys over an 18-month period. Additionally, we find that a devoted screening attorney is able to resolve twice as many low-level cases per year as a full-time line prosecutor. The actual savings are likely even greater, since our estimates do not include further savings from bonds, arrestees' ability to retain employment, forensic lab testing, and police officer time attending hearings.

Potential drawbacks

As with all policy changes, there are potential drawbacks that may not have been realized over the time period of the experiment, or that we are unable to measure. We provide those drawbacks below and, to the extent possible, intend to monitor for these moving forward.

• The Ninth Circuit employed two, experienced prosecutors as screening attorneys. One of the attorneys has over 30 years of experience while the other has over 4 years of experience. To our surprise, the more experienced prosecutor dismissed cases more frequently than the less experienced prosecutor. Further research is merited to evaluate the importance of prosecutorial experience in screening to remove the "right" cases.
• If experience does impact the ability of a screening attorney to quickly and properly screen cases, then as screening removes weak cases, non-screening attorneys have fewer and fewer weak cases. As such, newer prosecutors get less experience reviewing weak cases and may be less able to be effective screeners in the future.
• Line prosecutors may become reliant upon screening, or incorrectly believe that screening removes all cases that should not be prosecuted. This may lead line prosecutors to spending valuable time trying to prosecute every case the screener does not dismiss or remand. The screening attorneys are not able to remove all cases that should not be prosecuted since they may not have all information necessary to make a decision at the time of screening.
• There is a disconnect between agencies that save the most from screening and the Solicitor's office, which may cause sustainability challenges. The majority of taxpayer savings are realized by the Sheriff's Office maintaining the jail, the Court in a reduced hearing schedule, and the public defenders office. Yet the Solicitor's Office bears the entire cost of employing the screening attorney, and given the long-term underfunding of prosecutor offices, this may create budgetary challenges moving forward.