Disrupting and Re-imagining the Role of Prosecutors: A New Focus on Re-entry and Rehabilitation

San Quentin State Prison is not the first place you’d expect to see San Francisco District Attorney George Gascon or any of the prosecutors who work in his office. But this is where they have quietly spent time over the last several years. In an effort to change the narrative about when a prosecutor’s case “ends,” Gascon and his line prosecutors hold regular forums at San Quentin, where they discuss with incarcerated individuals steps they are taking to rehabilitate themselves. Gascon believes that prosecutors, who exercise a great deal of discretion about charging and sentencing, should hear directly from those serving time. As he explained to NBC Bay Area, “maybe we participated in locking you up, but when you come out, we want to facilitate you coming out and not going back again.” Already, these visits have resulted in the creation of an advisory board within the District Attorney’s Office, comprised of the formerly incarcerated and prosecutors, focusing on rehabilitation and re-entry.

What George Gascon is acknowledging is not new. Criminal justice reform advocates have long recognized the need to improve the re-entry process for people leaving prisons and jails. But, traditionally, prosecutors have not viewed their roles as extending to the rehabilitation of those they helped to put away. That traditional view is rapidly changing, at least in some District Attorney offices, with the growing national consensus that locking more people up does not necessarily keep the public safer. As Preet Bharara, former United States Attorney for the Southern District of New York, noted, it is time for prosecutors to move beyond the mentality of “catching bad guys and locking them up,” and instead think in terms of effectiveness; that is, how their actions can be effective at keeping the public safer.

When using the “effectiveness” metric to hold prosecutors accountable, it becomes obvious why they should care about recidivism and about the challenges that formerly incarcerated individuals face upon release. Annually, nearly 650,000 people are released from prison, while over 11 million are released from jails. If prosecutors’ foremost responsibility is public safety, then they should be accountable for how their actions and decisions affect the ability of recently released individuals to successfully re-integrate into their communities. As Kim Ogg, District Attorney of Harris County, Texas, stated, prosecutors “hold the key to the front door of the courthouse and the back door of the jail.”

Prosecutors are beginning to come together to hammer out specific ways they should reconceive their role beyond just locking people up. In December 2016 and April 2017, the Center on the Administration of Criminal Law at NYU Law School organized a series of meetings with criminal justice leaders, including a closed-door roundtable with prosecutors and a public symposium that brought prosecutors together with re-entry experts and the formerly incarcerated. The result was a blueprint for how prosecutors can address re-entry head-on, detailed in a new report, entitled Disrupting the Cycle: Reimagining the Prosecutor’s Role in Reentry.

As detailed in Disrupting the Cycle, prosecutors can make big changes through some reforms that — though far from common in district attorneys’ offices of the past — are just plain common sense. For example, district attorney offices can encourage line prosecutors to consider creative sentencing options, such as non-custodial and/or suspended, delayed, or split sentences — rather than merely pursuing the harshest sentence available. Offices should also provide all line prosecutors with clear guidelines for responsibly exercising their discretion, and make those guidelines transparent to the public so prosecutors remain accountable.

Prosecutors should also stop unfairly punishing people who are poor — by supporting individualized bail determinations over bond schedules, and by advocating for abolition of cash bail for low- to-moderate risk defendants. This is exactly what prosecutors are doing in Harris County, Texas, for example, where District Attorney Kim Ogg has gone on record as supporting efforts to reform the County’s bail system. Ogg even filed an amicus brief in support of litigation challenging the pretrial bail policies practiced by Harris County’s misdemeanor judges.

For cases already underway, line prosecutors should be encouraged to listen to and, wherever possible, support a defendant’s preference for which prison he will be incarcerated in. These requests matter, because where an individual is incarcerated can affect his or her ability to access family support systems, as well as educational and vocational opportunities.

For cases that used to be considered “closed” — i.e. after an individual has been sentenced — prosecutors should take an expansive view of their roles to reduce re-entry barriers. They should advocate for and work to formalize procedures that ease relief from criminal records, such as expungement and sealing of records.

Finally, prosecutors must use their bully pulpit to raise awareness about the difficulties that formerly incarcerated individuals face. Just speaking out can make a big difference. In 2014, former U.S. Attorney Kenneth Polite initiated a “30–2+2” program in the Eastern District of Louisiana. The office recruited 30 local businesses to hire two formerly incarcerated people for two years. To date, 25 businesses have stepped up, including Hyatt, Shell, Harrah’s, and the U.S. Attorney’s Office itself. As the NYU report explains, efforts such as these will help remove barriers to re-entry, reduce the likelihood of recidivism, and, in the process, help to make “America’s cities and towns safer, more vibrant places to live.”

Courtney Oliva is Executive Director of the Center on the Administration of Criminal Law @nyucrimlaw. Before joining the Center, she served for several years as an Assistant United States Attorney in the District of New Jersey and as a Special Assistant Attorney General with the New York State Office of the Attorney General. In these capacities, she investigated and prosecuted a variety of federal and state crimes, including violent crime, drug offenses, and white collar theft. She graduated from Brown University and the University of Chicago Law School.