Boston’s New D.A. Pushes Back Against Prosecutors’ ‘Punishment-centric’ Point of View

Rachael Rollins’s Nov. 6 win in the race for Suffolk County, Massachusetts, district attorney is remarkable not just because she is now the first Black woman to be the elected prosecutor for Boston, but even more so because after she won the September primary, she staked out a bold position.

While many progressive prosecutors talk about ending the prosecution of one or two low-level crimes, such as marijuana possession, Rollins pledged to drastically scale back the prosecution of 15 such offenses.

Rollins said she would decline to prosecute not just marijuana possession, but drug possession and possession with intent to distribute, as well as trespassing, theft under $250, disorderly conduct and disturbing the peace, breaking and entering into a vacant property with the intent to avoid cold, destruction of property, threats, and some resisting-arrest charges.

The proposal prompted an immediate backlash from media and legal commentators, one predictable and the other perhaps less so.

The first objection is that such a blanket policy would lead to increases in those crimes because people will think they can commit them with impunity. The second, less obvious concern, one raised more by legal academics than the public, is that such blanket refusals to prosecute violate the separation of powers. The executive branch, the argument goes, is usurping the legislature’s right to define crimes.

Both reactions are incorrect and reflect abiding misperceptions of how criminal justice operates. The first overstates the need to rely on the criminal justice system to reduce crime—an attitude that has led us to underfund and underutilize more effective noncriminal justice responses to violent and antisocial behavior while continuing to pump resources into law enforcement.

The second puts too much emphasis on the separation of powers and too little on how our history of racial segregation complicates the question of who should define our criminal laws. Many of the problems with our criminal justice system are tied to the peculiar geography of punishment—the haphazard way that enforcement is scattered across city, county, state, and federal authorities—which is an issue reformers continue to ignore.

The reaction to Rollins, then, provides a useful way to try to reframe two major issues in crime control: How do we divide responsibility between criminal and civil/public-health authorities, and what communities should have the loudest voice in setting crime control priorities?

Public safety does not always require public prosecution

A clear theme runs through the offenses that Rollins’s office would presumptively decline to prosecute, absent case-by-case sign-off from supervisor. They are crimes that are frequently motivated by poverty, homelessness, mental illness, substance abuse disorder, or some toxic interaction of these problems.

Rollins herself drew attention to this point when she said that the proper response to these issues was “appropriate community-based, no-cost programming, job training or schooling … .”

These are crimes that arise primarily from public health failures, and perhaps should be treated as such. Doing so, however, runs contrary to the still-dominant attitude that the only real way to prevent problematic behavior—at least in poorer, more heavily policed communities—is to threaten people with ever-more-severe criminal punishment and incapacitate them in prisons when those threats fail.

Yet ever-growing piles of data push back against such a prison and punishment-centric view.

To start, we overstate the effectiveness of law enforcement responses. Evidence clearly demonstrates that long and ever-longer prison sentences are generally ineffective at deterring offending, and that much of prison’s incapacitation effect is offset by the higher rates of recidivism it causes following the inevitable release.

And while it is true that policing appears to have a significant impact on crime, studies show apprehension, not punishment, is the deterrent. It’s the hassle of immediate arrest, not punishment later imposed by the prosecutor, that really matters. And because those studies—like studies of prisons—focus just on the fiscal costs of policing and overlook its social costs (the fear of a violent or lethal encounter, the emotional and psychological toll of repeated harassing interactions), they also are likely overstate policing’s net benefits.

Moreover, a similarly-growing pile of data points to interventions and policies that do not rely on the police and prisons to reduce crime, often while providing a broader array of benefits.

One study, for example, estimated that Medicaid Expansion may have reduced crime by as much as $14 billion in the states that accepted it because of  increased access to drug treatment. Another study reported that civil-side drug treatment facilities reduce crime by about $4 for every $1 spent on them—and help people manage their use of addictive drugs.

Mental health treatment likewise appears to be an effective response to criminal behavior, one that unsurprisingly works better than prison. Access to stable and affordable housing appears to reduce the risk of offending and reoffending, and it would certainly reduce the incidence of several of the crimes on Rollins’s list. Recent work by New York University sociologist Patrick Sharkey suggests that supporting local groups that focus on community development can help reduce crime rates.

So we overstate the need to rely on criminal justice approaches to reduce crime while underselling the effectiveness of social and medical interventions—many of which (unlike prison and policing) reduce crime and provide other social benefits.

While it may not have been Rollins’s intent, her proposal opens up a new front for reforms. Moving the focus from how we punish certain categories of misbehavior to changing which sorts of misbehaviors should end up in the criminal justice system in the first place.

This is fundamentally different than the debate over punishing marijuana use, which is rooted in a growing consensus that use of the drug is, for all intents and purposes, OK.

By cutting off access to Suffolk County’s jail for (most) of these offenses, Rollins would, in effect, demand that other agencies to step up. Frustrated by homeless people breaking into construction sites to stay warm? Then provide more housing, not more jail beds. Low-level thefts? Address the underlying economic insecurity that surely motivates much of it. Rollins is in effect would require the public health agencies to confront these issues instead of relying on expensive, ineffective, and often violent jails instead.

It may not have been a conscious choice by public health, welfare, and other civil-side agencies to effectively free-ride off the criminal justice system, but in effect that is what they’ve done: our police, courts, jails and prisons take on too much responsibility for addressing issues of drug addiction, mental health problems, and homelessness. The criminal justice system was never the right place to address these issues, but it was politically easy to let them do so, and continues to be done, even as the police themselves have started to complain that too much responsibility is being placed on them. Rollins’s list poses a direct, and necessary, challenge to this practice.

Separation of people, not separation of powers

Rollins is not the first prosecutor to propose declining entire categories of cases. Prosecutors from New York to Texas have promised to stop enforcing some marijuana laws. In 2017, Orlando, Florida, prosecutor Aramis Ayala attempted to halt all death penalty cases but faced opposition from then-Governor Rick Scott who reassigned 30 of Ayala’s cases to a pro-death penalty prosecutor along with more than a million dollars from her budget.

Beyond the overstated policy concerns, law professors have also raised constitutional concerns with such proposals, arguing that they violate the separation of powers. The executive branch is supposed to enforce the laws that the legislature enacts, and blanket refusals are effectively a form of executive-branch law-writing.

I’m unpersuaded by such claims, and Carissa Byrne Hessick, a law professor at the University of North Carolina, has done a great job pointing out the limits of these claims. (In short, the legislatures have written such vast criminal codes that they have, in effect, delegated this responsibility to the prosecutors.)

Indeed, there may be a reason to affirmatively support such executive-branch “legislation” in the criminal law context. While the doctrinal arguments are concerned about the separation of powers, I think it is equally important to focus on the separation of people, and what that means for criminal policy.

A major and under-appreciated feature of our criminal justice system is the way power and responsibility is scattered almost haphazardly across various city, county, and state actors and in ways that do not reflect any rational relation to the way crime is distributed across those regions.

City police make arrests, county prosecutors charge cases, county or state judges impose sentences, parole boards appointed by governors determine releases, all in response to laws passed by state legislators whose members are nominally state officials but are elected by, and thus responsive to, far more localized constituencies.

Crime, on the other hand, is disproportionately concentrated not just in urban areas, but even within urban areas with histories of entrenched poverty and underfunded schools and other public resources, areas that have been subjected to redlining as well as segregating housing policies that worked aggressively to concentrate the disadvantaged—disadvantaged Black Americans in particular—in these poor, isolated neighborhoods.

This raises an important question: Why should legislatures, often housed away from major urban areas and whose rural members wield outsized power despite ever-shrinking numbers, get to determine what conduct demands criminal enforcement in cities?

This argument becomes even stronger once we take into account race. Rural voters are overwhelming white while the urban areas that face the most aggressive law enforcement are disproportionately populated by minorities, Blacks in particular. Why should rural and suburban voters, who have often supported the very policies that have concentrated disadvantage in the cities, also get a say in how those communities are policed?

There are, of course, profound problems with electing prosecutors, especially (as we do today) at the county level, which gives whiter, wealthier, more conservative suburban voters an outsized voice in shaping criminal law in the city.

Nonetheless, prosecutors from Rollins in Boston to Larry Krasner in Philadelphia to the growing number of other progressive-leaning prosecutors in cities across the country indicate that the urban voters who most acutely feel both the costs and the benefits of enforcement decisions prefer smarter, less aggressive enforcement and are capable of electing prosecutors who share those beliefs.

Prosecutorial “vetoes” of crimes essentially grant these communities, historically underrepresented and disenfranchised, more power to choose how to police themselves.

Put differently, a separation of powers argument that ignores the separation from power that defines so much of our criminal justice system is flawed from the start. The “prosecutorial veto” is at least one way to confront this separation from power, by giving those closest to law enforcement’s impact a greater voice in how that enforcement is deployed. It is not a perfect solution, but it definitely is one that demands more attention and support in the short run, if not longer.