Being charged with a felony can be a life-changing event.
A felony means the possibility of prison. There is also damage to one’s reputation, relationships, and future employability, to name a few of the more serious consequences.
I understand the power of the district attorney’s office over the lives of others and I want to be clear: There are no current financial incentives for anyone in our office to try cases or obtain convictions — other than a basic salary. Our prosecutors understand that because of budget cuts, there will be no more raises and no more bonuses, maybe for years.
Contrary to the impression that has been created, I have never created a financial incentive for future performance that is tied to case results. I used the guideline of five trials with a 70 percent conviction rate as a threshold standard for giving bonuses for the first time last December. It was a starting point only and a flexible standard. Many other factors were considered in evaluating the contribution of each attorney over the past year and the bonus that each would receive. Many attorneys who received bonuses did not meet the guideline, but they made significant contributions to the office during 2010. No one knew in advance of December 2010 what criteria would be used to determine bonuses for 2010.
Bonuses are completely discretionary from year to year, both in amount and criteria used to reward performance over the past year. As a result, no attorney in this office has — or ever has had — an expectation that they will receive a bonus or that they will receive any certain amount as a bonus at the end of any fiscal year. In general, bonuses have been used to reward hard work, difficult assignments, tasks requiring long hours, positive attitude, a commitment to excellence, and other extraordinary contributions to justice, public safety and the community.
Nonetheless, this is an important discussion. Given the power invested in each and every prosecutor in this state, there should be defined yet flexible performance measures that help defendants, victims and the community evaluate whether prosecutors are doing their job.
Our standard for filing cases is that the evidence establishes probable cause that the defendant committed a crime, and that there is sufficient evidence for a reasonable likelihood of conviction. In most felony cases, a separate and experienced team of prosecutors makes the initial decision of whether the case should be filed. Once filed, those prosecutors no longer handle the case. This procedure ensures that the trial attorney is not the only prosecutor who has assessed whether the case should be prosecuted.
Standing alone, conviction rates mean nothing. But over time, they can provide insight into whether a prosecutor is doing everything he or she can do to obtain justice, including:
• Case preparation and development;
• Adequate investigation;
• Thorough witness interviews;
• Appropriate case evaluation;
• Continued training to ensure improve trial skills; and
• Recognizing when cases should not be pursued.
No one in this office will ever be paid an incentive to take a specific case to trial. Nor will the attorneys in this office be required to seek to convict a person they ethically do not believe should be prosecuted.
There will be difficult cases that cannot be appropriately plea bargained and have to go to trial. That is why our performance standards must be flexible, so that prosecutors do not avoid going to trial on tough cases. But some objective standards must be used as part of the criteria for evaluating the performance of individual prosecutors.
Carol Chambers is district attorney for Colorado’s 18th Judicial District.
