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An Alabama Prosecutor Locked Up 4 Black Teens For A Murder They Didn’t Commit. Now He’s Trying 2 More.

Two teenagers are facing life without parole sentences for capital murder, though it’s not clear they pulled the trigger.

Lakeith Smith, shortly after he was arrested at age 15. He was sentenced to 65 years for the murder of his friend, who was shot by police.
Elmore County Sheriff

An Alabama Prosecutor Locked Up 4 Black Teens For A Murder They Didn’t Commit. Now He’s Trying 2 More.

Two teenagers are facing life without parole sentences for capital murder, though it’s not clear they pulled the trigger.

On the morning of May 21, 2016, 56-year-old John Michael Taylor was found lying on the side of a road next to a convenience store. When police came, he allegedly told them that three men had forced him into their car, robbed him, and shot him behind the store. He died as a result of a single gunshot wound.

Two of the three involved, however, were not actually men. One, Lil’Roderick Williams, was 14, and another, Devonte Raymon Hill, was 15. And authorities have not yet disclosed which of the three actually fired the fatal shot.

Although only one of the three appears to have directly killed Taylor, the two teenagers are being charged as adults for capital murder alongside their alleged co-conspirator, Santwone Cornelius Jones, now 27. If convicted, the two could face life in prison without the possibility of parole. The pair are among the youngest ever to be charged with capital murder in Alabama state history as adults, C.J. Robinson, the lead prosecutor on the case, told the Montgomery Advertiser.

Locking up Black youth

This is not the first time Robinson, a white assistant district attorney for Alabama’s 19th Judicial Circuit, has fought to charge a Black teenager for a murder he didn’t directly cause, thanks to the state’s accomplice law. The law allows for defendants to be charged with murder, even if they didn’t intend to kill anybody, if they were involved in the commission of a felony that resulted in a killing. The doctrine is known as felony murder.

Earlier this year, Robinson secured 65 years, including a 30-year felony murder sentence, for Lakeith Smith, a Black teenager who took part in a robbery when he was 15, though he did not kill anyone. A police officer fatally shot Smith’s associate, A’Donte Washington. But Smith and three others were convicted for Washington’s murder. Robinson told the press that he was “very pleased” with the outcome, noting that Smith would not be eligible for parole for at least two decades.

In this most recent case, Robinson has publicly argued that the two teenagers “needed to face the same charges” as their older co-defendant, despite acknowledging that the two are exceptionally young. Under Alabama state law, 14 is the minimum age one can be charged as an adult.

In a phone interview, Robinson declined to discuss who he believes actually killed Taylor, or any specifics about the case, but he noted that Alabama state law allows all three to get capital murder charges because of their alleged participation in a felony that resulted in a homicide. “I have no hang-ups or reservations, asking for any sentence allowed by law, whether it be for the most culpable actor or one of the accomplices,” said Robinson.

Robinson did not respond to an email inquiry from The Appeal asking about whether race plays a role in charging decisions.

The neuroscience of teenage crime

If convicted in this case, Jones, the adult co-defendant, will be eligible for the death penalty. As of 2017, just over half of the state’s 188 death row inmates are Black, though Black residents only make up about a quarter of the state’s population.

The U.S. Supreme Court has outlawed the death penalty and limited life without parole sentences for juveniles on the basis that young brains are still developing and have immense capacity for change. In the 2012 case Miller v. Alabama, the Court ruled that sentences committing children to die in prison should be reserved for “the rare juvenile offender whose  crime reflects irreparable corruption.” Petitioner Evan Miller, like Williams, was a 14-year-old boy tried as an adult for a murder.  

On the phone, Robinson acknowledged the restriction on his ability to seek life without parole for the two teenagers, noting that there has to be “a procedural hearing for life without parole, it’s not automatic,” when it comes to juveniles convicted of capital murder.

Modern understanding of adolescents’ psychological development should have informed Robinson’s charging decisions, Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, told The Appeal.

“While academics and advocates decry the continuing reliance on the felony murder doctrine for all affected populations—juvenile and adult defendants/offenders alike—it is particularly inapt for juvenile offenders, whose anticipation and foreseeability of consequences is more limited,” Levick said in an email. “This population is more impulsive and impetuous in their involvement in crime and unlikely to make the type of cost-benefit analysis or assessment of risks that we might reasonably ascribe to adults.”

Robinson said his office does take “all factors into consideration,” including youth brain development, when making charging decisions. He added that he has no problem seeking life without parole for juveniles who were accomplices in a felony that resulted in a murder, depending on the facts of the case. “If somebody was in the back seat listening to their iPod and the only evidence was them listening to their music, that would not be the kind of situation where they would warrant capital murder,” he said. “But if the evidence was there to convict them of capital murder, then the proper punishment would be life without parole.”

Such charges are not out of the ordinary for Robinson, who has brought several capital murder charges in the last four years. In 2015, he was named Assistant District Attorney of the Year, having assisted in two high-profile capital murder trials the previous year, which resulted in one death sentence and two life without parole sentences.

He has also spoken out publicly in support of “truth in sentencing” legislation, arguing that parole is weakening the “deterrent” prosecutors can instill in would-be criminals.

In recent years, advocates have challenged the harsh prosecutions of accomplices for murders they did not commit during participation in felony acts, such as a robbery. This week, California limited this long-held practice and created a pathway for hundreds of prisoners to request resentencings. The Colorado state Supreme Court also recently upheld a state law reducing sentences for juveniles sentenced to life without parole for felony murder.

The Appeal Podcast: The Cruelty of Felony Murder Laws

With Appeal contributor Katie Rose Quandt.

Illustration by Simone Noronha

The Appeal Podcast: The Cruelty of Felony Murder Laws

With Appeal contributor Katie Rose Quandt.

The United States is alone in the world in pursuing two modes of prosecution: giving life sentences to children under 18, and giving life sentences for murder to people who haven’t murdered anyone. Even if you didn’t pull the trigger, or even have prior knowledge of a crime, you can be treated as if you are a murderer if someone is killed in the course of committing a felony like robbery or carjacking to which you are an accomplice. Appeal contributor Katie Rose Quandt joins us to discusses why felony murder laws are unjust and how activists are pushing back against this uniquely American brand of cruel and unusual punishment.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal podcast. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, Facebook at The Appeal magazine’s main Facebook page and please subscribe to us on iTunes. And if you haven’t and you’d like to, please feel free to review us and rate us. We always appreciate that. The United States is alone in the world in pursuing two modes of prosecution. Sentencing children under the age of 18 to life sentences and giving licenses for murder to people who never murdered anyone. Even if one doesn’t pull the trigger or pull any trigger or have any prior knowledge of an intent to pull a trigger, they can be treated as if they did in most states in the US. Appeal contributor Katie Rose Quandt will join us today to discuss the problems with felony murder laws and how activists are pushing back against this uniquely American mode of cruel and unusual punishment.

[Begin Clip]

Katie Rose Quandt: There’s a lot of different ways someone can be charged with felony murder. For example, someone who was carrying out an armed robbery and the cashier had a heart attack and died. That robber could be charged with felony murder based on the underlying felony of armed robbery. So it’s basically just this one time when what you’re doing at the time when someone dies can just escalate everything up to first degree murder and so a lot of legal scholars are concerned because you don’t need to have intended it.

[End Clip]

Adam: Hi Katie, thank you so much for coming on.

Katie Rose Quandt: Hi. Thanks for having me.

Adam: So let’s start by setting the table here for our listeners about your work in this space. Now there’s two kinds of different threads which are uniquely American and I think to some extent uniquely punitive that you cover, which is something we’ve covered once in the show, which is the idea of life sentences for juveniles. Life sentences for people who are as young as 14, 15 who commit crimes, which is unique to the United States and it was until some court rulings over the last couple of years that have pushed back on that, which we can get into later. And the second mode is something we haven’t discussed at all that I actually found your reporting quite fascinating. The amount of cases this happens where someone is convicted of felony murder and sentenced to life in prison without the possibility of parole for being an accessory to a crime that later involves a murder. Can you talk about these two features of American justice system and how common they are in sort of general law or how uncommon they are?

Katie Rose Quandt: Yeah, sure. I think you’re totally right that this story that I wrote for The Appeal kind of centers on the perfect storm of like these two features of our criminal justice system, which as you said, are life sentences for children and also felony murder doctrines. And um, so for some time the United States, as you said, has been the only country that sentences children to life without parole and life without parole is like as extreme as it sounds. If you are sentenced to life without parole, you will die in prison. You’ll never have a chance at freedom. And so it was pretty common in the United States. A few years ago there were about 2,300 people serving life without parole for crimes that they were convicted of before the age of 18. And so as you were saying, the US Supreme Court has pushed back on this a bit with pretty major groundbreaking rulings in 2012 and 2016, which basically said (a) you can’t sentence children to life without parole as a mandatory sentence, you have to at least look at the individual case before giving such an extreme sentence to a child and (b) those 2,300 people who are already serving that sentence deserve a chance at a second look and a possibility at freedom. And so, um, there’s definitely some movement in that area, but the story kind of focuses on someone who fits into that group and his sentence is no longer constitutional, but he certainly is still incarcerated and they are still a lot of people waiting for their chance at a resentencing throughout the country.

Adam: So you do something in your article, which is always good, which is you put a human face to a broader problem. In this case, that face is that of then 15 year old Curtis Brooks, who is of course now much older, the case is about 22, 23 years old. Can you talk about his case and specifically what the jury was permitted to know and not allowed to know and how these sort of automatic sentencings really strip it of any kind of human touch at all? It’s sort of, the system is rigged to give hyper punitive sentences.

Katie Rose Quandt: Yeah, so my story is centered on Curtis Brooks, who was 15. He was abandoned. He was homeless and he was living in Colorado and he ran into some kids he sort of knew what the arcade one day and these kids were planning to do an armed robbery and steal a car and he agreed to go along with them. He took one of their guns, but their plan was never to kill anyone. But one of the teenagers, they were all teenagers, one of the boys shot the guy whose car they were stealing and killed him, and as a result, Curtis was charged with first degree murder. And the way that this works is through this rule called felony murder, which states that if you are committing a felony and someone dies, you can be charged with first degree murder regardless of whether you intended it or even were the one to carry out the murder.

Adam: Just to clarify, this is not common in other countries.

Katie Rose Quandt: No, it’s definitely not common in other countries and it’s the only time in the US criminal justice system where intent doesn’t matter. Like normally if you cause a death and the jury doesn’t believe that you intended to kill, then you’re not going to be charged with first degree murder. You’re going to be charged with manslaughter or some lesser charge, but felony murder is just sort of the exception and it allows people like Curtis Brooks to be treated as if they committed murder when really he was committing armed robbery in a group.

Adam: You quote one criminal justice scholar from University of Buffalo who says, quote, “The felony murder doctrine ‘is one of the most widely criticized features of American criminal law. Some have concluded that felony murder rules impose unconstitutionally cruel and unusual punishment by ascribing guilt without fault, or that they violate constitutional due process by presuming malice without proof.’” Can you expand on that a little bit for some of them are more laylisteners like myself?

Katie Rose Quandt: Um, yeah, well just basically, it’s the only time that someone can be charged with murder without intending to commit murder. So it’s not always an accomplice liability situation. There’s a lot of different ways someone can be charged with felony murder. For example, someone who was carrying out an armed robbery and the cashier had a heart attack and died. That robber could be charged with felony murder based on the underlying felony of armed robbery.

Adam: Jesus.

Katie Rose Quandt: So it’s basically just this one time, yeah, when what you’re doing at the time when someone dies can just escalate everything up to first degree murder. And so a lot of legal scholars are concerned because you don’t need to have intended it. And also it really affects a lot of teenagers because they’re more likely to commit crimes in groups. They’re more likely to be impulsive and maybe one of the group, will pull the trigger and it just kind of traps a lot of teenagers who were committing a crime, but certainly not a first degree murder, into getting these long life sentences.

Adam: So let’s go back to Curtis Brooks. He obviously, you tell a really interesting story about him, I won’t go into total detail, but he basically, while in prison was the model prisoner. Got his GED, he educated himself, coached basketball. One of the jurors on the trial, which you write, they didn’t realize lots of mitigating factors, including the fact that he had no prior criminal record, that he was, the whole thing was not even his idea. These were things that the defense wasn’t even allowed to present, which is extremely odd. And so one of the jurors took up his case and they, they sort of got close. Um, and there has been an effort to sort of overrule this, especially after the Supreme Court rulings of 2012 and 2016 on the matter respectively. Can we talk about what the efforts were to get him out and is there any appeal left or is he just on the mercy of the Governor of Colorado?

Katie Rose Quandt: Yeah, there’s a lot going on legally in his case. Um, but yeah, he totally was just, he kind of like buckled down in prison and got degrees and took classes and learned languages. And as you said, this juror who kind of could never get him out of his mind, went and visited him and was just blown away by the person that Curtis Brooks has become. And I talked to that juror and he, like you said, was horrified at the time when he and the other jurors found out that their guilty verdict meant life without parole for Curtis. They had no idea that that was the only mandatory sentence for him. But Curtis Brooks will probably not die in prison because of the Supreme Court rulings that said that life without parole sentence is unconstitutional. So over the last several years, his case has kind of changed repeatedly. So in 2016, he found out that he would potentially have a chance at resentencing as does everyone in his position across the country, but then in his particular case, Colorado decided to give all of these people serving life without parole for crimes they committed as juveniles shorter sentences, and they decided to give those who had committed felony murder, like extra shorter sentences. And when he tried to apply for that sentence, the DA argued against it and it ended up going to the State Supreme Court. So just recently, the State Supreme Court, I don’t know if this is, it’s pretty complicated, but the State Supreme Court decided that his case can move forward so he potentially could be released according to that shorter sentence. And then at the same time he has applied for clemency from the Governor and so he kind of has these two potential avenues that could lead to his release. But in the meantime it’s just still a waiting game for him as it has been for quite some time.

Adam: I rarely get shocked in this business, but I was shocked to read one paragraph in particular, and I’m going to read it word for word and I want to make sure that I’m not reading this wrong, and you told me if I am. “And this April in Alabama, Lakeith Smith was sentenced to 65 years in prison, including 30 for felony murder. In 2015, the then-15-year-old burglarized two homes with several friends. When the police approached, one of the teenagers fired, and was shot and killed by an officer. Smith was convicted of the felony murder of his friend, based on the felony burglary he was committing when his friend was shot.” Did I read that right? Did the cops shoot the kid after he was fired upon and then he was therefore?

Katie Rose Quandt:  Yes, yes.

Adam: Wow. That is mind boggling. I mean, that’s next level. So there doesn’t even have to be an antecedent felony murder. Obviously the cop wasn’t prosecuted for felony murder.

Katie Rose Quandt: Right. Well, so, Smith, the person who got convicted of felony murder, had the underlying felony of the burglaries he was committing with his friends. And that drew the attention of police and they got into a shootout and when the police officer shot his friend that escalated Smith’s burglary charge up to felony murder, even though he didn’t even have a gun.

Adam: Wow.

Katie Rose Quandt: Yeah.

Adam: That is. Wow. That is. That is. I think that may be the most American paragraph I ever read.

Katie Rose Quandt: There’s something else that’s going on there too, which is that he was originally offered, Smith was offered at 25 year plea deal, but he decided to exercise his right to trial and when he went to trial, suddenly all these charges escalated to a total of 65 years. So he was basically punished for going to trial.

Adam: Oh yeah. Getting punished for going to trial is its own episode and one I look forward to doing at some point, because we have covered the juvenile life sentences on the show before. The fact that juvenile sentences, life sentences are uniquely or there’s a, I think the numbers you had were roughly 40 percent of them tethered to this concept of felony murder by proxy because juveniles are more likely to commit crimes in groups and act impulsively is something that is a confounding factor here. I want to talk about the prosecutor who sort of had to have to justify this statute or justify the, the sort of principle behind the statute. And so their argument is that it, it disincentivizes felony crimes. Now you note that one study in 2002 found, they did an analysis of state level crime rates from 1970 to 1998 and concluded that the felony murder rule does not substantively improve crime rates. “If the main reason a state retains the rule is to reduce crime, it should consider the rule.” Unquote. So the study shows that this doesn’t even do that.

Katie Rose Quandt: Right. Yeah. It’s kind of like very hard to find good data on felony murder, including how frequently it’s charged because it’s just recorded as murder. Um, but also the effect that it has. And so this one study had attempted to do that and it compared states with felony murder rules and without felony murder rules because there are a handful of states that have gotten rid of these rules and it basically all the differences in crime were insignificant. It was like slightly more burglary, slightly less robberies, you know, it didn’t really, they concluded that it didn’t deter crime.

Adam: So let’s put this in moral context because I think one of the questions that comes up with a lot of listeners when they hear things that seem on their face egregious is that, what is the sort of logic that prosecutors have in pursuing these? Is there just a sort of institutional ethos to throw the book at everyone with maximum charges? Is it an issue of having the sort of cliches about having more arrows in your quiver to kind of pressure them to lean on other things? You know, if you’ve gotten a 15 year old with seven years in prison and perhaps you have, you can scare them into, you know, flipping on someone or something. Is it, is it about having a sort of excess or gratuitous amount of prosecutorial weapons?

Katie Rose Quandt: I mean, that’s, that’s how it seems to me when I was reporting this story that, you know, Curtis Brooks could have been charged as a juvenile for armed robbery or he could have been charged as an adult for murder and you can see which one he got and it just seems like there’s way too much discretion there in what the prosecutors could bring and the results that that will have on someone’s life.

Adam: Um, so what are the efforts now? So obviously there are people trying to highlight the felony murder. This has been something that activists have been working on for years. What groups and what organizations, you note Amnesty International, Human Rights Watch, what, what groups are working to draw attention to this and how much traction if they had on a state level? I mean obviously there isn’t, you know, state level is really where the, where the rubber hits the road in terms of criminal justice, right? Is there any kind of organized campaign to push back against this that you can speak to?

Katie Rose Quandt: Yes, there’s different state level movements to try to reform felony murder rules and the one that’s getting the most attention now because it’s really been making some exciting progress is this group called Restore Justice, in California. And they’re an advocacy group that’s pushed really hard to try to get a bill passed this session that would end the accomplice liability aspect of felony murder in the State of California. And if that bill passes, it will stop future instances of accomplice liability, felony murder, and it will also give the people who are currently in prison for it, a chance at resentencing. Um, so that’s like a pretty major group that’s pushing for it. And I think there’s also a bill in Pennsylvania, but it’s, as you said, it’s very state by state.

Adam: I’m always sort of curious what the mechanisms are to push back against these forces because there does seem to be a kind of mindless punitive attitude, especially in states like where I’m from in Texas, where it’s sort of, you know, throw them all in a cage and forget about them later.

Katie Rose Quandt: Yeah, I mean, I don’t want to overlook a group that’s been doing work on this. I know that there are certainly have been ACLU reports that sort of thing about felony murder, but it seems to mostly be a local fight.

Adam: Well, great. This was extremely informative. Katie, thank you so much for coming on. I really appreciate it.

Katie Rose Quandt: Yeah, thanks so much.

Adam: Thank you to our guest, Katie Rose Quandt, a contributor to The Appeal and writer. This has been The Appeal podcast. Remember, you can check us out on Twitter @TheAppealPod, you can check out The Appeal magazine’s main Facebook page, which you really should do because they have a ton of great content on there. The show was produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I am your host Adam Johnson. Thank you so much. We’ll see you next week.

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After Pittsburgh Decriminalizes Pot, Black People Are Still Disproportionately Charged With Possession

About 51 percent of the people charged with possession of a small amount of marijuana in Allegheny County are Black.

Photo Illustration by Anagraph / Photo by Andrey Pavlov/Stocksy

After Pittsburgh Decriminalizes Pot, Black People Are Still Disproportionately Charged With Possession

About 51 percent of the people charged with possession of a small amount of marijuana in Allegheny County are Black.

Around 10:15 p.m. on Jan. 11, 2016, David (not his real name) was in the back seat of a car on the streets of Pittsburgh when the driver failed to use her turn signal when exiting a parking lot.

Pittsburgh police pulled up behind the vehicle and began a traffic stop that would end with the 24-year-old Black man and one of his friends facing criminal charges.

David was searched, and police discovered he had a clear plastic bag with what they believed was marijuana in his shoe. He and a friend were taken into custody and charged with misdemeanor possession of a small amount of marijuana. Because he had an outstanding warrant, David’s bail was set at $10,000 cash. His charges were ultimately reduced to summary disorderly conduct and he was ordered to pay a little more than $150 in fines and fees.

Though Pittsburgh decriminalized marijuana in late 2015, David is among hundreds of people who have been criminally charged with only possession of a small amount of marijuana in the past two years. Black residents make up most of Allegheny County’s prosecutions for misdemeanor marijuana possession, according to The Appeal’s analysis of these charges. Even after the decriminalization ordinance gave officers the option to treat possession of a small amount of marijuana as a summary offense similar to a traffic citation rather than a misdemeanor, Pittsburgh leads the county in these criminal charges.

The Appeal reviewed all criminal charging dockets filed in magisterial district judge offices in Allegheny County in 2016 and 2017 and found roughly 2,102 cases where defendants were charged with misdemeanor possession of a small amount of marijuana—defined as 30 grams or less—with a possible additional charge of possession of drug paraphernalia.

Any case where the defendant was initially charged with another criminal offense, vehicle code violation or any drug crime other than possession of marijuana or drug paraphernalia was excluded from the review of records.

About 51 percent of the people charged in these cases were Black, according to The Appeal’s review. According to the U.S. Census Bureau, just 13 percent of the county’s population is Black.

More than 600 cases were filed by Pittsburgh Police Department, and more than 400 of those cases were filed against Black defendants. That is twice as many cases as were filed against white defendants.

While the misdemeanor charge generally does not carry a jail sentence, a conviction for possession of a small amount of marijuana can have lasting consequences, like barring someone from receiving college financial aid or triggering a driver’s license suspension.

Many of these cases were ultimately reduced to summary disorderly conduct or public drunkenness. But even when these charges are ultimately reduced or dismissed, defendants are fingerprinted, entered into the system, and later must explain or expunge their arrest record.

Though it’s only the second most populous county in Pennsylvania, Allegheny leads the state in the number of arrests for possession of marijuana. In 2016, police in Allegheny County made more than 2,100 arrests for possession of a small amount of marijuana, according to the Pennsylvania State Police Uniform Crime Report.

Arrests for marijuana have actually risen since decriminalization went into effect, and police departments can still choose not to abide by the ordinance. In most counties in Pennsylvania, including Allegheny, police are able to file criminal charges and even resolve low-level offenses without consulting the district attorney first.

Police handled more than 90 percent of the cases identified by The Appeal, which were disposed of early in the process by either reducing the charges to a summary citation or dropping the charges altogether.

Only about 2 percent reached Allegheny County District Attorney Stephen Zappala’s office.

In those cases, both Black and white defendants faced roughly the same likelihood of being sentenced to either probation or jail, but Black defendants on average were ordered to pay about $50 more than white defendants.

David Harris, a law professor at the University of Pittsburgh, told The Appeal that the disparity is most likely a result of unequal enforcement. Black and white people use marijuana at roughly the same rate, but Harris said there is most likely heavier police presence in communities of color, which leads to police detecting and arresting for these low-level offenses more there than in predominantly white communities.

“It’s not about who offends, but it’s about where the enforcement is placed,” Harris said.

The disparate racial impact has prompted other district attorneys in Pennsylvania and beyond to decline prosecution of these kinds of cases. In February, Philadelphia District Attorney Larry Krasner announced that his office would no longer prosecute marijuana possession cases. Manhattan District Attorney Cyrus Vance dismissed more than 3,000 open marijuana possession cases in September. He told reporters this was an effort to “even out racial disparities” and “right-size” the criminal justice system.

Zappala, a Democrat, supported Pittsburgh’s decriminalization ordinance in 2015, praising Philadelphia’s version at the time: “Addressing ‘small amounts’ as a civil matter with fines in Philadelphia has reduced the 4,000 arrests annually for this offense by 73 percent, thus diverting limited assets to addressing other types of crimes.”

He even wrote a letter to then-Pittsburgh Police Chief Cameron McLay pledging to “work with you to try to accomplish what the Mayor and City Council would like to see done.” But his office has done little to ensure the ordinance is actually enforced. Michael Manko, a spokesperson for Zappala, placed the responsibility squarely on the shoulders of police agencies.

Manko rejected the idea that the district attorney’s office sets policy for law enforcement in the county, and referred questions about the cause of the racial disparity to the police departments.

“Are you suggesting that the DA should tell municipalities that if simple possession of marijuana and paraphernalia are the only charges they have during an arrest that they should decline filing, particularly if the individual is African American?” he said.

The Pittsburgh Police Department did not respond to request for comment.

Though most of these cases don’t make it to the DA’s office, making a public decision to not prosecute these cases, as Krasner did, would send a signal to law enforcement how to prioritize these cases and eliminate incentives for defendants to accept any plea offer before the case reaches the DA.

If the person knows his or her case will be dismissed later, there is little reason to plead guilty even if the penalty is as minor as paying a fine.

Furthermore, the delay between law enforcement agencies could be motivation enough for the police to continue making arrests, said Fordham University law professor John Pfaff. As William and Mary Law School professor Jeffrey Bellin points out in his recent paper “The Power of Prosecutors,” even if a prosecutor decides to dismiss all marijuana cases, that does not stop police from continuing to make arrests. These arrests can lead to the defendant sitting in jail until the prosecutor dismisses the case.

“It’s certainly possible that if DAs are slow to dismiss the charges, and the police view whatever time is spent in jail pending dismissal as an ‘appropriate’ punishment, then the police may still keep making arrests–a classic example of the ‘the process is the punishment,’” Pfaff said.

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