Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

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

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


George Gascon
Shawn Calhoun [CC BY-SA 3.0]

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, statedprosecutors “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.

I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.

I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.


On the morning of June 12, 2016, a small plane circled over Stanford University’s commencement ceremony trailing a banner reading, “Protect Survivors. Not Rapists. #PerskyMustGo.”

The plane’s voyage was commissioned by feminist group UltraViolet to protest former Stanford swimmer Brock Turner’s six-month sentence handed down by Santa Clara County Superior Court Judge Aaron Persky in 2016 for sexually assaulting an unconscious woman on campus the previous year. The sentence ignited an outcry and an effort to recall Judge Persky. Over 1 million people have signed a petition to remove Judge Persky, and even members of Congress have joined the chorus. Now, Santa Clara County Assistant District Attorney Cindy Hendrickson is running to replace Judge Persky should his recall go before voters.

There have been a few voices criticizing the recall movement. Some have warned that the effort could threaten judicial independence by pushing judges to buckle under pressure from public opinion in individual cases. Others have warned that the recall could scare judges into giving harsher sentences to all defendants, which would likely disproportionately affect underprivileged and minority defendants. And others have pointed out that the recall effort creates a tension between feminist anti-rape advocacy and other progressive, anti-carceral social justice movements.

But with few exceptions, those critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do.

In a Washington Post op-ed, Stanford law professor Michele Dauber charged that Judge Persky “had to bend over backward to award Turner such a light sentence.” More recently, Professor Dauber has re-affirmed that criticism on her Twitter account, describing Turner’s punishment as a “minimum sentence” handed down to a “white affluent” athlete. Professor Dauber and many others have also mistaken the sentencing process as Judge Persky demonstrating “empathy for the criminal.” At Turner’s sentencing hearing, Judge Persky considered statutory aggravating and mitigating factors and sentencing criteria. These factors included Turner’s age (he was 19 at the time of the offense), lack of criminal record, intoxication, letters of support, remorsefulness, and — much lamented by Professor Dauber and other pundits — the effect the felony conviction would have on his life.

As is common practice, Judge Persky based his sentencing determination not on Turner’s athletic ability, gender, or race, but on the recommendation of his probation officers. Further, Judge Persky was authorized by the California Penal Code to depart from the statutory minimum sentence — two years, in this case — after considering Turner’s lack of criminal history and the effect of incarceration. Judge Persky determined that a prison sentence would have a “severe impact on him. And that may be true in any case. I think it’s probably more true with a youthful offender sentenced to state prison at a . . . young age.” Contrary to Dauber’s assertion that Judge Persky “had to bend over backwards” to lightly punish Turner, he tailored the sentence to best serve justice, not merely to churn out a one-size-fits-all sentence.

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds. And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates like Dauber have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged. Turner owes court fees and is required to pay the victim restitution. He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination. If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence. He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity. As a convicted felon, he will not be allowed to own a gun.

And far from rehabilitating offenders like Turner, prisons leave people “worse” than when they went in. At the Santa Clara County jail, where Turner served time, three corrections officers were charged with murder in the beating death of a mentally ill inmate; this attack was just part of a string of allegations of violence committed by the the jail’s corrections officers. If Turner had been sent to prison, experts say, it’s likely that he could have been released back into society with exacerbated mental health issues, trauma, and further exposure to crime that would result in higher odds — not lower — that he would commit future crimes.

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often leadto homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious. By imposing a three-year mandatory sentence, the law removes judicial discretion. “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter. Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom. History shows police gatekeeping in cities like PhiladelphiaSt. LouisBaltimoreClevelandDetroitNew Orleans, and New York City. In recent years, police have regularly closed casesbefore doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law. For a sexual assault case, it is a rare success. More punishment isn’t always the best or most just response. Nor does it necessarily provide justice for victims. And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.


Correction: This story previously indicated that Turner’s felony conviction would preclude him from voting. This is not the case under California law and the article has been updated to reflect that.

More in Explainers

I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.

On the morning of June 12, 2016, a small plane circled over Stanford University’s commencement ceremony trailing a banner reading, “Protect Survivors. Not Rapists. #PerskyMustGo.”

I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.

On the morning of June 12, 2016, a small plane circled over Stanford University’s commencement ceremony trailing a banner reading, “Protect Survivors. Not Rapists. #PerskyMustGo.”


The plane’s voyage was commissioned by feminist group UltraViolet to protest former Stanford swimmer Brock Turner’s six-month sentence handed down by Santa Clara County Superior Court Judge Aaron Persky in 2016 for sexually assaulting an unconscious woman on campus the previous year. The sentence ignited an outcry and an effort to recall Judge Persky. Over 1 million people have signed a petition to remove Judge Persky, and even members of Congress have joined the chorus. Now, Santa Clara County Assistant District Attorney Cindy Hendrickson is running to replace Judge Persky should his recall go before voters.

There have been a few voices criticizing the recall movement. Some have warned that the effort could threaten judicial independence by pushing judges to buckle under pressure from public opinion in individual cases. Others have warned that the recall could scare judges into giving harsher sentences to all defendants, which would likely disproportionately affect underprivileged and minority defendants. And others have pointed out that the recall effort creates a tension between feminist anti-rape advocacy and other progressive, anti-carceral social justice movements.

But with few exceptions, those critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do.

In a Washington Post op-ed, Stanford law professor Michele Dauber charged that Judge Persky “had to bend over backward to award Turner such a light sentence.” More recently, Professor Dauber has re-affirmed that criticism on her Twitter account, describing Turner’s punishment as a “minimum sentence” handed down to a “white affluent” athlete. Professor Dauber and many others have also mistaken the sentencing process as Judge Persky demonstrating “empathy for the criminal.” At Turner’s sentencing hearing, Judge Persky considered statutory aggravating and mitigating factors and sentencing criteria. These factors included Turner’s age (he was 19 at the time of the offense), lack of criminal record, intoxication, letters of support, remorsefulness, and — much lamented by Professor Dauber and other pundits — the effect the felony conviction would have on his life.

As is common practice, Judge Persky based his sentencing determination not on Turner’s athletic ability, gender, or race, but on the recommendation of his probation officers. Further, Judge Persky was authorized by the California Penal Code to depart from the statutory minimum sentence — two years, in this case — after considering Turner’s lack of criminal history and the effect of incarceration. Judge Persky determined that a prison sentence would have a “severe impact on him. And that may be true in any case. I think it’s probably more true with a youthful offender sentenced to state prison at a . . . young age.” Contrary to Dauber’s assertion that Judge Persky “had to bend over backwards” to lightly punish Turner, he tailored the sentence to best serve justice, not merely to churn out a one-size-fits-all sentence.

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds. And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates like Dauber have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged. Turner owes court fees and is required to pay the victim restitution. He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination. If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence. He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity. As a convicted felon, he will not be allowed to own a gun.

And far from rehabilitating offenders like Turner, prisons leave people “worse” than when they went in. At the Santa Clara County jail, where Turner served time, three corrections officers were charged with murder in the beating death of a mentally ill inmate; this attack was just part of a string of allegations of violence committed by the the jail’s corrections officers. If Turner had been sent to prison, experts say, it’s likely that he could have been released back into society with exacerbated mental health issues, trauma, and further exposure to crime that would result in higher odds — not lower — that he would commit future crimes.

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often leadto homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious. By imposing a three-year mandatory sentence, the law removes judicial discretion. “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter. Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom. History shows police gatekeeping in cities like PhiladelphiaSt. LouisBaltimoreClevelandDetroitNew Orleans, and New York City. In recent years, police have regularly closed casesbefore doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law. For a sexual assault case, it is a rare success. More punishment isn’t always the best or most just response. Nor does it necessarily provide justice for victims. And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.


Correction: This story previously indicated that Turner’s felony conviction would preclude him from voting. This is not the case under California law and the article has been updated to reflect that.

More in Podcasts