Sheriff Darryl Daniels of Clay County, Florida, is positioning himself as a social media celebrity in the ongoing war on opioids. In January, Daniels’s office filmed the aftermath of a SWAT raid that he and masked officers carried out on a so-called narcotics house on a tree-lined suburban street in Orange Park, Florida. The video documenting the raid—in what the sheriff dubbed “Operation: You Were Warned”—went viral, garnering 30,000 shares and 3.4 million views on Facebook.
The raid video opens by panning over a line of young people handcuffed on the curb. The camera then moves to a group of officers, wearing helmets and backed up by two armored cars. The video finds Sheriff Daniels, who announces to the viewer that criminals must leave his county or face the consequences. The camera follows him to the house, briefly focusing on a broken window before Daniels opens the door. Standing in the raided home, Daniels takes a large swig of his morning cup of coffee and declares, “Fifteen going to jail, three big gulps.”
Despite the sheriff’s announcement, the “raid” resulted in only five adult arrests and one juvenile arrest, according to Elaine Brown, a lead records specialist at the sheriff’s office. According to police records reviewed by The Appeal, the drug seizures from this “narcotics house” were fairly small scale and did not include opioids. In an email to The Appeal, Sgt. Keith Smith, an office spokesman, clarified that during the the raid, narcotics deputies found what they believed to be 1.2 grams of heroin and fentanyl after an initial field test, but subsequent tests revealed the seizure was not a controlled substance.
Police actually nabbed most of the suspects for marijuana, of which they found less than two ounces during the raid. Of the five adult arrest reports, four indicated marijuana possession, with three charged for drug equipment. Two of the individuals charged for marijuana had less than 20 grams, according to the documents. The fifth suspect was nabbed for positive field tests of MDMA and a few grams of cocaine. It is not known what substances, if any, were mentioned in the sixth arrest report, which was not released because the subject was a juvenile.
The Clay County Sheriff’s Office did not respond to The Appeal‘s inquiries about whether the department considered issuing public corrections about the initial arrest figures and drug seizures posted on Facebook. The department also did not respond to questions about the decision to film the aftermath of the operation and about their use of armored vehicles.
One former Clay County sheriff’s deputy, who requested anonymity citing concerns over police harassment, told The Appeal in a phone call that he wasn’t surprised that the operation didn’t turn up opioids. “Of course they didn’t, there never was any,” he said. Asked about the errant initial field test, the former deputy pointed out that “false drug findings on site happen all the time.”
“The really good ones cost money, but those take away your probable cause,” he said, referring to arrests and police searches for which error-prone drug test field kits can provide legal pretext. “It’s probably the cheapest ones they could get to do the minimum standards for an investigation.” Clay County Sheriff’s Office spokersperson Keith Smith said that the department recently acquired field kits from a Florida company called MEDTECH Forensics, but did not confirm whether these devices specifically were used during the January 5th drug bust.
The former deputy also argued that the marijuana charges were overkill. According to sheriff’s office documents reviewed by The Appeal, 34.8 grams of marijuana were found in the house, yet two individuals arrested in the house were charged with possession of more than 20 grams of marijuana.
The drug quantities found suggest the raid targeted a house of small-time users, not major traffickers, Joe Frank Martinez, a border sheriff in Val Verde County, Texas, said in a phone interview with The Appeal. “This would probably would be personal use,” said Martinez. “If you’re talking about ounces, that’d be users.”
Martinez added that in his jurisdiction, SWAT teams and armored vehicles would not be used for low-level users, unless police had clear reason to believe there was a threat at hand. The Clay County Sheriff’s Office Facebook post about the raid justified the need for the “safety equipment” citing past reports of shots being fired and fights taking place at the house. In addition to the use of armored vehicles and SWAT team personnel, four flashbang grenades were used during the raid, despite the fact no guns or other weapons were found during the operation, according to police records reviewed by The Appeal.
Individuals swept up in the raid argued that Daniels’s public presentation of their home as a drug house was overblown and complained about what they perceived as intrusions on their privacy. “I don’t understand why they have to take camera footage of my house,” said one young man, who told News4Jax that he was facing charges.
This raid is not Daniels’s first success, at least in terms of social media publicity. Last summer, Daniels shared another video of himself describing the aftermath of what he called another narcotics operation in which he issued his trademark warning to criminals and gulped down a thermos of coffee.
Through such highly publicized operations, Daniels has jumped into the national spotlight as a drug warrior. At a press conference last year, he announced homicide charges were being brought against a drug dealer whose client had overdosed after taking fentanyl, according to the Florida Times Union. Daniels appeared on HLN, a CNN-affiliated national news network, to discuss the case and his department announced that its detectives would investigate all 49 overdose deaths from 2016 as homicides. Since his election in 2016, the office’s drug-related arrests have increased.
These public appearances have attracted significant publicity from local press and media. But some locals express skepticism about the sheriff’s frequent attempts to stay in the spotlight. The former Clay County deputy called the raids “a damn joke.”
“He’s creating a self-aggrandizing mythology,” said the former deputy. “It’s all choreographed—such a chicken shit bust, instead of the MRAPs [military vehicles] and a SWAT team, they could have used two deputies for that.”
On Nov. 10, 2015, Joseph Ponte, then New York City’s Department of Correction (DOC) commissioner, addressed a packed hearing of the Board of Correction to discuss violence on Rikers Island. Soon after Ponte began speaking, three people walked toward the front of the room, unfurled a banner for the Campaign to Shut Down Rikers, and chanted “Hell no to the status quo! These prison walls have got to go!” They kept chanting, even getting louder, as they were kicked out of the meeting. Before they were escorted out, though, two more people in the crowd stood up, and raised a sign bearing the face of Kalief Browder, a Bronx teen who spent three years on Rikers, much of it in solitary confinement, for allegedly stealing a backpack. Browder took his own life soon after his release, a tragedy that helped catalyze the movement to close the jail. The protesters began shouting reasons Rikers Island needed to be shut down: “Rikers is racist!” “Rikers is a torture chamber!”
The activists were part of a group called the Campaign to Shut Down Rikers, a coalition including Akeem Browder, Kalief’s brother; advocates from Millions March NYC, a grassroots collective; and members of Jails Action Coalition, an alliance of incarcerated and formerly incarcerated people and their supporters. The campaign’s mission was to get the notorious Rikers Island jail complex shut down for good. But in addition to closing Rikers, the coalition also had a more radical demand: that the city divest entirely from police and prisons and invest in communities. The campaign demanded that the money being put into incarcerating and policing people be used for education, healthcare, housing, and other basic needs.
Organizers had long targeted Rikers Island for reform. Groups like Resist Rikers had been holding rallies at the jail complex since 2014, calling attention to its use of solitary confinement and the infamous brutality of its guards. Jails Action Coalition had been organizing against the DOC’s solitary confinement practices for the previous two years, and its members were some of the first people to publicly call for Rikers’ closure. For the next year, the Campaign to Shut Down Rikers would organize vigils, marches and rallies, including one in which they dropped off a coffin at City Hall bearing Browder’s name.
But as the movement gained momentum, it also lost its focus. At the beginning, calls to shut down Rikers Island came from grassroots activists with an abolitionist agenda. Prison abolitionists aim to make police and prisons obsolete by addressing the root causes of social ills. By 2017, when Mayor Bill de Blasio announced the city’s “Roadmap to Closing Rikers Island” within 10 years and open four new neighborhood jails, advocates say, the plan to close Rikers had been defanged and distorted.
“The topic of shutting down Rikers has breached and found some permanence in mainstream conversation,” the #ShutDownRikers group wrote in a public statement in 2016. But that wasn’t necessarily a good thing. “A variety of liberal political figures began weighing in, rapidly co-opting the work of the grassroots movement that valued, above all else, community inclusion,” the statement continued. “The conversation [about] closing Rikers has become increasingly synonymous with building new neighborhood jails, which is entirely incompatible with our campaign’s abolitionist perspectives.”
Same goal, different paths
Calls to shut down Rikers started to grow louder in the fall of 2015. City Council member Daniel Dromm began to speak out in favor of closing Rikers, and it became a frequent recommendation from advocates at Board of Correction meetings.
On Nov. 18, 2015, Glenn Martin, then president of JustLeadershipUSA (JLUSA), a group focused on ending mass incarceration, spoke at a conference about whether to reform or shut down Rikers Island. Participants included City Comptroller Scott Stringer, who agreed that Rikers should be closed. It was a precursor to JLUSA’s not-yet-public campaign, #CLOSErikers, which quickly took off. The nonprofit received grants in late 2015 and 2016 from the Open Philanthropy Project, which also helps fund The Appeal, to support its campaign, as well as multiple grants from the Ford Foundation since at least 2014. With this support, JLUSA led a coalition of 50 other organizations and publicly launched its #CLOSErikers campaign on April 14, 2016, with a rally at City Hall.
But the goals of the earliest advocates fell by the wayside. “Unlike us, [JustLeadership] never took a clear stance from the beginning on building more neighborhood jails,” said Nabil Hassein, an organizer who worked on the Shut Down Rikers campaign. “We were always very clear and explicit about [opposing new jails] from the beginning and we didn’t see that from them. And when you have these well-funded nonprofit groups coming in, in a lot of ways, they had more capacity to do things than we did.”
When then-Council Speaker Melissa Mark-Viverito made her State of the City address on Feb. 11, 2016, Kalief Browder’s mother was in the audience. Mark-Viverito dedicated a section of the speech to Kalief, saying, “Kalief entered [Rikers] as a child, but left as a broken man. A few months later, Kalief died by his own hands. It was not one failure which led to his death; it was generations of failures compounded on one another.”
Mark-Viverito announced that she would be forming a commission led by former New York State Chief Judge Jonathan Lippman (later dubbed the Lippman Commission) to identify ways to reduce the population on Rikers Island so that closing the jail complex could become a reality. It consisted of 27 commissioners, including Martin, along with representatives from nonprofits like the Vera Institute for Justice and the Legal Aid Society. The commission also included multiple judges from New York City courts, a former U.S. attorney, the president of the Ford Foundation, and the president of the Citizens Crime Commission.
Meanwhile, the #CLOSErikers campaign had grown into a coalition with more than 170 partner organizations, including some of the city’s biggest nonprofits. JLUSA’s support from foundations also grew, with grants from the Chan Zuckerberg Initiative and Google’s charitable arm, Google.org. Over the next year and a half, the campaign organized rallies outside de Blasio’s fundraisers when he was up for re-election. Its members confronted the mayor at his Brooklyn gym and attempted to confront him at his polling station to persuade him to shut down the jail complex. They also put up billboards in Harlem and Times Square urging de Blasio to close Rikers.
Martin saw closing Rikers as a moral imperative that would involve multiple reforms to New York City’s criminal justice system, like reducing the use of cash bail. He called for increased social services and public investment in healthcare, education and jobs, but saw at least some of those services being delivered through community-based jails. “There is no question that access to job training, healthcare, drug and alcohol and mental health treatment are among the important services that will be easier to provide in community facilities rather than at Rikers Island,” Martin said in a 2016 interview with Grist.
But organizers with the Campaign to Shut Down Rikers say Martin, who had become the leader of #CLOSErikers, was too quick to agree to replacing Rikers with other jails.
“All the problems with Rikers are symptoms of the larger problem of incarceration,” Hassein told The Appeal. “The only reason to build new jails is because the city is actively planning to incarcerate more people rather than actually addressing the issues that lead to incarceration.”
“I’m not saying that people in jail shouldn’t have access to services, but you’re putting human beings in a cage,” he added. “What kind of mental health effects do you expect? If you want to improve their mental health, why are you keeping them in a cage?”
Five Mualimm-ak, a Jails Action Coalition member, echoed those concerns. He told The Appeal that by investing in new jails, the city will end up simply “shipping old problems and old brutal cultures to a new address.”
For JLUSA, a gradual approach seemed more pragmatic. “Glenn and campaign leaders directly impacted by Rikers felt an urgency to get people off of Rikers as a human rights imperative being that the culture of violence and toxic air conditions they experienced are intolerable,” Brandon Holmes, the #CLOSErikers campaign coordinator at JLUSA, told The Appeal. “On the way to creating the conditions and support for complete decarceration of New York, we must demand the least restrictive conditions, and keeping anyone who is detained close to their homes, their families, and their community-based support services.”
In December 2017, Martin resigned from JLUSA after being accused of sexual misconduct. He declined to comment for this story.
But organizers’ critiques of the #CLOSErikers campaign extend beyond Martin or JLUSA’s decision to support community jails; they question the group’s ability to decouple itself from its funders’ interests. “The police and the prisons, at the end of the day, exist to preserve the existing social order, which is one that benefits rich people and harms the people being incarcerated,” Hassein said. “I think there’s an inherent tension in trying to have an organization be against incarceration while also being accountable to wealthy donors as opposed to being accountable to the communities that they’re working in.”
The 27 Lippman commissioners met for over a year—going on jail visits, analyzing data and hosting town halls. When their report came out in April 2017, their recommendation on what should be done with Rikers was clear.
“We have concluded that simply reducing the inmate population, renovating the existing facilities, or increasing resources will not solve the deep, underlying issues on Rikers Island. We are recommending, without hesitation or equivocation, permanently ending the use of Rikers Island as a jail facility in any form or function,” the report said. “The Island is a powerful symbol of a discredited approach to criminal justice—a penal colony that subjects all within its walls to inhumane conditions.”
The report was split into three categories: reducing the jail population in New York by “creating off-ramps” before arrests occur and shortening pretrial detention; building more humane jails; and reimagining Rikers Island as a place for development.
In order for Rikers Island to close, however, the jail population would have to decrease significantly. The Lippman Commission’s suggestions for reducing the jail population included eliminating bail in favor of pretrial supervision, which can mean house arrest, curfews, electronic monitoring, or required drug treatment. “It should become the default option, replacing money bail, for those who are charged with misdemeanors and nonviolent felonies, as well as for some young people charged with more serious offenses,” the report states. (Most people charged with misdemeanors now get released on their own recognizance, depending on the outcome of their risk assessments.)
But even with fewer people detained pretrial, its authors asserted, the city would still need new and renovated neighborhood jails to close Rikers. “The Commission believes that confinement is necessary when individuals are a threat to others, but that its use should be a last resort,” the report stated.
To reduce the jail population, the commission also recommended that the city use risk-assessment tools to determine a defendant’s risk of re-offending, risk of future violence, and risk of future domestic violence. Currently, the criminal court system uses a tool that assesses whether a defendant will show up to court dates. Other recommendations included elimination of all sentences with a jail time of 30 days or less.
Hassein and other advocates from the Shut Down Rikers campaign saw the recommendations as insufficient. “The movement to abolish bail is important and is a step towards abolition,” Hassein said, “but I feel like the expansion of pretrial supervision is just more surveillance and repression of communities.”
The mayor’s plan
By this point, Mayor de Blasio, who had described closing Rikers as a “noble concept” but virtually impossible to achieve, was having City Hall staff research possible jails to replace the complex. For the past four years, de Blasio has been trying to implement reforms on Rikers to address its “culture of violence.” The reforms, some of which were described by advocates as punitive to the people housed there, were generally considered a failure. Just two days before the Lippman report was released publicly, in what observers considered a capitulation to public pressure and an attempt to save face, he came out in favor of closing Rikers but said the process would take 10 years, a timeline that dismayed many activists.
“Ten more years means at least $10 billion of taxpayers’ money wasted on a failed jail system. Ten more years means over 400,000 New Yorkers going to Rikers. He won’t even be in office in 10 years so the 10-year timeline doesn’t make sense,” Darren Mack, an organizer with JLUSA, told The Appeal.
Three months later, on June 22, 2017, Mayor de Blasio officially released his plan to close Rikers, but it wasn’t until February 2018, that the mayor announced that he had reached an agreement with the City Council to build new “community-based facilities.”
De Blasio’s plan to close Rikers consists of a neighborhood jail in every borough except Staten Island. In Brooklyn and Manhattan, this would mean significant renovations on two currently operating jails. In the Bronx, the city would build a new facility and in Queens, the city would reopen and renovate the Queens Detention Center. The Vernon C. Bain Correctional Center, a jail in the Bronx known as “The Barge” would remain open. The result would be five DOC jails with a total capacity of 5,000 people. Council members responsible for the various jail locations reached an agreement with the mayor to conduct a single public review process for all four sites to expedite building the new jail facilities.
Even if it is sped up slightly, however, many organizers are not impressed with de Blasio’s plan. For the people who first called to shut down the island, the idea of “neighborhood” jails sounds absurd.
“There is no such thing as community jails,” Mualimm-ak of Jails Action Coalition told The Appeal. “We live in a city with well over 60,000 homeless people and thousands more living in someone else’s home. There are more vital needs that aren’t being addressed in New York City than investing in properties that will hold people instead of helping people.”
Mack said Mayor de Blasio did not consult with campaign members or the people most directly impacted before releasing his plan. “The #CLOSErikers campaign [doesn’t] support the mayor’s proposal,” he told The Appeal. “We believe in human rights and dignity and that no one should be on Rikers, which is completely inhumane and irredeemable. It’s the Abu Ghraib of New York City. … We don’t want Rikers or the culture of violence to be moved from that toxic wasteland into our communities. We don’t need 21st-century jails. We need 21st-century communities.”
Patrick Gallahue, a spokesman from the mayor’s office, noted that its Implementation Task Force includes nonprofit advocates—some of whom were formerly incarcerated—service providers, and government officials like the city’s five district attorneys and the New York Police Department commissioner. “Before and after the Roadmap’s publication, the City has met with and worked closely with a broad group of leaders,” Gallahue wrote in an email. “This has been carried out both in private meetings as well as public events. We are by no means finished. … That will continue and expand very soon. While the work is firing on all cylinders, we welcome input and there remain many opportunities to be involved.”
In order for de Blasio’s plan to work, the jail population, currently at about 9,000 would have to shrink by around 44 percent, according to the mayor’s office. (Former Correction Commissioner Martin Horn says the city could squeeze in 3,000 more beds, if necessary, under current zoning laws.) This is where the city’s other planned reforms come in. In the Roadmap to Closing Rikers Island, the mayor’s office outlines a number of changes aimed at achieving a 50 percent reduction in the jail population in ten years. The reforms include: making it easy to pay bail, replacing short jail sentences (30 days or less) with programs that reduce reoffending, improving the city’s assessment tool to determine flight risk, reducing case delay, and speeding up the transfer of people who violate their parole to state prisons (thereby reducing their time spent in New York City jails).
The Roadmap also envisions building more humane jails by expanding mental health units in DOC jails, for instance, allocating $100 million to a new correction officer training academy, and bringing all facilities including the eight jails on Rikers Island to a state of good repair as an interim measure before the complex is closed.
But these reforms mainly focus on speeding up the process of putting someone through the system and then improving their experience—not stopping people from getting in contact with the system in the first place.
That doesn’t sit well with the first generation of activists who tried to close down Rikers, or the second generation. While JLUSA stands by the Lippman Commission’s report calling for neighborhood jails, Mack said the report was a compromise that did not include all of JLUSA’s demands. As for Mayor de Blasio’s plan to close Rikers: “Our campaign is committed to justice and systemic change, not just reform. The mayor’s Roadmap lacks serious investment into communities that have been historically under-resourced,” he told The Appeal. “It falls short on ending the mass criminalization of communities of color and poor people in this city.”
A ‘vicious cycle’
All the activist groups contacted by The Appeal expressed disappointment in de Blasio’s plan. Many noted one glaring omission: There was no mention of ending broken windows policing, or other aggressive NYPD policing practices, in the plan to reduce the number of people incarcerated in New York City.
Critical Resistance New York City, a prison-abolitionist group, has demanded that Rikers be shut down and not replaced with new jails and that the NYPD end policies like broken windows policing and community policing which, the group wrote, “only increase police presence in our neighborhoods and broaden their jurisdiction over virtually every aspect of our lives, especially in communities of color.”
Although de Blasio and the city’s police have said they stopped arresting people for possession of small amounts of marijuana, for example, they continue to do so. The NYPD also continues to arrest a large number of people for “fare-beating,” going so far as to pressure Manhattan District Attorney Cy Vance’s office to continue prosecuting fare-beating arrests after the DA announced reforms.
“When you just look at the scale of resources that the city is investing in incarcerating our communities versus the scale of resources that go to things like education, to jobs, to health care including mental health care—or you know, the damn subway,” Hassein of Shut Down Rikers said. “Instead of locking people up and sending them to Rikers Island over $2.75 subway fare, maybe that money could be going to free subway fare.”
In 2017, JLUSA launched the #FREEnewyork campaign to demand statewide bail reform, speedy trial reform, and discovery law reform. “#CLOSErikers is in the process of gathering community input through forums in majorly impacted neighborhoods and we are prioritizing a mapping of needed community resources. We are pushing for decarceration in all ways,” Holmes said. “We are calling for an end to broken windows policing, ensuring diversion before arrest, etc. Building communities includes repairing the harm caused by Rikers Island.”
Despite all that has occurred in the fight to close Rikers, grassroots activists have held tight to the abolitionist goals of the movement. Community groups have voiced their opposition to new jails being built in their communities while also demanding that Rikers Island be closed.
Although the Campaign to Shut Down Rikers officially disbanded in June 2016 after releasing a statement, members of the coalition have continued to organize with other groups. The group now plans to strategize “effective next steps in confronting agendas that promote re-incarceration, such as smaller community jails and other rebranded extensions of the racist police state,” Shut Down Rikers wrote in its statement. “We continue to demand that the City of New York divest from jails and instead, invest funds into communities that are sorely lacking adequate educational, health and mental health, and employment resources and services—all of which would serve to ultimately decarcerate NYC.”
“The problem is not the facilities; this is a vicious cycle and there’s no way to reform a system that isn’t meant to work,” said Reuben, a Critical Resistance comrade incarcerated in New York, who provided only his first name. “Rikers is only a holding place for victims of an unjust system. Closing down a jail is not really addressing our real problem.”
Our criminal justice system is broken. America has the highest incarceration rate in the world with 2.2 million people in its prisons and jails. The quality of justice that a person receives more often than not depends upon his or her income – whether, for example, he or she can post bail or pay for an attorney. Public defenders carry huge caseloads and often don’t have investigators or other resources to provide a zealous defense. Since 1989, 2,218 innocent people have been exonerated after being wrongfully convicted. And the system is fraught with unwarranted racial disparities at every step of the process from arrest to sentencing.
The causes of the many problems in the criminal justice system are varied and complex, but research shows that discretionary decisions by criminal justice officials play a significant role. Legislators pass harsh sentencing laws (with penalties much lengthier than sentencing laws in other Western countries), police officers engage in racial profiling, and judges often care more about efficiency than justice. But the most powerful official in the criminal justice system who makes the most critical decisions that often lead to unjust results is the prosecutor.
The power and discretion of prosecutors cannot be overstated. They essentially control the criminal justice system through their charging and plea bargaining decisions. These decisions are arguably the most important ones by any criminal justice official, and prosecutors make them behind closed doors with no accountability. A police officer may arrest an individual if the officer has probable cause to believe that person has committed a crime, but only prosecutors decide whether an individual will be charged. Prosecutors may accept or reject the recommendation of the arresting officer. Prosecutors may bring more or less serious charges against the individual. But they are not required to charge an individual even if they have probable cause to believe the person has committed a crime. The decision to charge is totally within their discretion.
The charging decision has tremendous consequences for an individual accused of a crime. Because there is a proliferation of criminal laws in both the federal and state criminal justice systems, prosecutors have a wide range of options when making decisions. For example, if a police officer arrests an individual who is in possession of 10 bags of cocaine, the officer may recommend that the prosecutor charge the individual with possession with intent to distribute cocaine — a felony that carries a mandatory minimum penalty of 10 years in prison in some jurisdictions. The prosecutor may accept the officer’s recommendation or may decide to charge the individual with possession of cocaine — a misdemeanor with a maximum penalty of one year. The prosecutor may also decide not to charge the individual at all. The ramifications of this decision are far-reaching and permanent. If the prosecutor brings the felony charge, the defendant not only faces the possibility of at least 10 years in prison, but may also be saddled with a felony conviction and all of its associated collateral consequences upon release. These consequences may include difficulty securing employment, losing the right to vote, and losing eligibility for public housing and benefits, among others. If the defendant is not a citizen, he or she may face deportation.
Despite the importance of the charging decision and its life-changing consequences, prosecutors are not required to explain or justify their decisions to anyone (other than possibly their supervisors), nor are they required to follow rules or guidelines when making these decisions. The charging decision is not made in open court, nor is there any public record of why or how the decision was made. These decisions are made in the prosecutor’s office, without any transparency.
Prosecutors also control the plea bargaining process. Plea bargaining involves prosecutors making deals with defendants that permit them to plead guilty to a less serious charge in exchange for the prosecutor agreeing to dismiss the more serious charge or charges. In theory, plea bargaining may be beneficial to the defendant, the prosecutor, and the entire court system. The defendant is not facing conviction on all of the charges, the prosecutor is guaranteed a conviction, and the court saves the time and resources required for a jury trial. The reality, however, is that plea bargaining is frequently an unfair and one-sided process. Like the charging decision, it is controlled entirely by the prosecutor. Prosecutors are not required to offer a plea bargain, and they are not required to justify the decision to anyone. Judges may not compel prosecutors to offer a deal, and in most jurisdictions judges are not involved with the plea bargaining process at all.
Prosecutors need only meet the very low standard of probable cause to bring charges against the defendant. However, to convict the defendant of those charges at a trial, prosecutors bear the much heavier burden of proving guilt beyond a reasonable doubt. Because they only have to meet the low probable cause standard, prosecutors frequently bring charges they know they may not be able to prove beyond a reasonable doubt. When facing an overwhelming number of charges, each of which may carry a long prison term and/or mandatory minimum sentence, defendants often feel pressured to plead guilty. Going to trial is risky because the defendant doesn’t know what a judge or jury may decide, regardless of the strength or weakness of the evidence. Imagine a defendant charged with five drug offenses, each carrying a mandatory minimum sentence of 10 years. If that defendant goes to trial and is convicted of all five charges, he will go to prison for 50 years. If the prosecutor offers to dismiss four of the charges in exchange for the defendant’s guilty plea to one, it is easy to see how even an innocent person might plead guilty. And most people do. Ninety-five percent of all criminal cases are resolved with a guilty plea.
In addition, the overwhelming majority of criminal defendants are indigent and represented by overworked court-appointed attorneys with few or no resources to investigate their cases. Defendants sometimes plead guilty in cases where they may very well have prevailed at trial, simply because their lawyers do not have the time or resources to mount an investigation that might reveal weaknesses in the government’s case and/or a defense to the crime. Prosecutors often increase the pressure on defendants by placing arbitrary deadlines on plea bargains, requiring the defendant to accept or reject the plea by a certain time or risk losing the deal. This puts defense attorneys in the unethical position of advising their clients about a plea offer before they have had the opportunity to investigate the case to determine whether there is a defense. Under these difficult circumstances, it is not surprising that so many defendants plead guilty. The alternative is just too risky. This is what passes as justice in America every day.
Prosecutors could make a big difference in improving our broken system if they made fairer charging and plea-bargaining decisions. Prosecutors could choose not to bring charges in cases involving minor offenses, instead permitting the defendant to perform community service, do restitution and/or participate in needed treatment programs. They could stop requesting that poor defendants be held in jail for minor offenses simply because they can’t post bail. They could ask for alternatives to incarceration in appropriate cases. So why don’t they? Because we don’t hold them accountable.
Ninety percent of all criminal cases are prosecuted on the state and local level, and prosecutors are elected officials in all but four jurisdictions (New Jersey, Alaska, Connecticut, and the District of Columbia). And yet, as James Forman Jr. noted in his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, most of our attention is focused on federal legislation and executive orders from the Oval Office instead of the many and much more important decisions that take place at the local level. Unfortunately, most people don’t pay attention to local prosecutor elections. Prosecutors frequently run unopposed and some serve for decades without a challenger. On the rare occasion when they are challenged, they have all of the advantages of incumbency and are difficult to unseat.
We must hold prosecutors accountable by becoming more involved in elections. We must become more informed about the duties and responsibilities of prosecutors so that we are equipped with the necessary information to ask questions and demand responses. Because prosecutors have so much power, if we elect people who are committed to fairness and racial justice, they can make substantial progress toward reforming the criminal justice system.
According to the Supreme Court, the prosecutor’s duty “is not that it shall win a case, but that justice shall be done.” In recent years, a number of progressive prosecutors who understand this duty have been elected in jurisdictions across the country. These individuals are committed to using their power to reduce the incarceration rate and the many unwarranted racial disparities in the criminal justice system. Prosecutors like Kim Foxx in Chicago and Larry Krasner in Philadelphia campaigned on themes of racial justice and reducing incarceration and won their elections. Each of them has made important policy decisions that have already begun to make a significant difference. For example, Krasner instructed his prosecutors to make plea offers to defendants that include proposed sentences below “the bottom end” of the sentencing range for each crime. Foxx stopped prosecuting misdemeanor driver’s license offenses and raised the bar for charging felony retail theft offenses to $1,000 from $300, drastically decreasing the number of retail theft cases. Their successes have inspired others who are committed to racial fairness in the criminal justice system to run for office. Many, such as Genevieve Jones-Wright in San Diego, whose platform includes significant reform of the cash bail system, are running this year. If this trend continues, perhaps the democratic process can work to effect change. If those of us who care about fairness and racial justice work to elect progressive prosecutors and hold them accountable, with time and hard work, we can fix this broken criminal justice system.