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In the first of a series, “The New Prosecutors,” we consider whether recently elected district attorneys can make transformative change.


What you’ll read today

  • Spotlight: In the first of a series, “The New Prosecutors,” we consider whether recently elected district attorneys can make transformative change.

  • Caging kids is an American tradition

  • Philadelphia will clear old convictions for minor crimes

  • ‘Ballistic Fingerprint’ database rests on shaky science, expands anyway

  • Nevada loosens its felony disenfranchisement rules, a little

  • When police act as prosecutors

In the Spotlight

The New Prosecutors: Can a new batch of progressive district attorneys make transformative change, or will they tinker at the margins?

This month, at least eight reform-minded prosecutors take office in cities across the country. They won their races against “deeply entrenched tough-on-crime attitudes,” according to the Associated Press, promising to reduce incarceration and increase compassion for those with drug dependencies, those with mental health needs, people of color, and, in general, underprivileged people. But this new crop of prosecuting attorneys is already facing staunch resistance to reforms not only from police and sheriffs, but also from prosecutors in their own offices “who are accustomed to decades-old policies of locking up defendants as long as possible.” [Denise Lavoie / Associated Press]

In St. Louis, Wesley Bell was sworn in Tuesday after defeating longtime prosecutor Robert McCulloch. On his second day in office, Bell made changes to his office’s approach to low-level crimes, bail, and discovery, but he received more attention for another decision: firing veteran prosecutor Kathi Alizadeh, who was primarily responsible for presenting evidence to the grand jury that declined to indict the Ferguson police officer who shot and killed Michael Brown in 2014. [Joel Currier / St. Louis Post-Dispatch] As we discussed in our 12/18/18 edition, assistant prosecutors in Bell’s office took a contrary stance before Bell even took office, when they voted to join the St. Louis police union.

Before she took office as district attorney in Boston, Rachael Rollins, who ran on a promise to stop prosecuting minor crimes, said she wanted to ask the prosecutors she would soon be supervising a question: “Why did you apply for a job where you would be putting people of color in jail every single day?” Now, Rollins and members of her transition team have been meeting with dozens of people who work at the Suffolk County district attorney’s office. “Essentially,” reports the Boston Globe, “they are interviewing to stay in their jobs.” [Maria Cramer / Boston Globe]

The Dallas Morning News reported last week that the incoming Dallas County district attorney, John Creuzot, who ran on a platform of reducing mass incarceration, fired 12 people, including the heads of several divisions, before he took office. One of the prosecutors he fired had withheld evidence in a capital murder case, leading to the conviction being overturned. [Tasha Tsiaperas / Dallas Morning News] During his first year in office as Philadelphia district attorney, longtime civil rights and criminal defense lawyer Larry Krasner, let go about 30 assistant prosecutors—10 percent of the lawyers in his office.

But in a stinging rebuke to the celebrations that usher these new prosecutors into office, the Harvard Law Review has published a note arguing that these political skirmishes are the tip of the iceberg when it comes to the challenges facing progressive prosecutors in their quest to transform the system. The note examines the “agency costs”—those costs incurred by the distance between the principal’s desires and the agent’s desires—and how those will be high when the principal is a progressive elected prosecutor and the agents are line prosecutors and police officers. “Perhaps the most brazenly defiant agents will be fired,” the author writes, but “[t]here exists a range of subtle acts of defiance that can undermine a chief prosecutor’s progressive agenda.” And in an adversarial system, prosecutors want to win. The author also notes that diversion programs can magnify inequality, and that the overall gains of electing progressives might be short-lived as voters’ tastes shift. [Harvard Law Review]

“You have three options when presented with a piece of moldy bread. First, you can eat the bread. Perhaps you think that mold is not that harmful to eat. Second, you can cut around the mold spores, trying to eat just the nonmoldy parts. This is an imprecise process, so sometimes you will eat mold that didn’t get removed. And maybe, in your hunger, you’ll be tempted by bits on the edge with just a little mold—you are hungry, after all. Third, you can refuse to eat any of the bread because, to you, a piece of moldy bread is just not salvageable. Insistence on maintaining the status quo in the criminal legal system due to some delusion that it’s not oppressive is akin to eating the moldy bread. Advocating for more progressive prosecutors is akin to cutting around the spores. That might be better than going hungry, but it’s still unsatisfying, and risky. This Note pleads with people to stop eating moldy bread.” [Harvard Law Review]

“[T]weaking the criminal legal system by introducing nontraditional prosecution methods ignores the fundamental truth that this system was never intended to keep marginalized people safe,” the author continues. “Counteracting the harms of an inherently punitive institution requires transformative reforms.” Progressive prosecution, on the other hand, is a “reformist reform,” which “misdiagnose[s] the depth of the problem” by attempting “to fix broken systems without realizing that these systems are ‘working to re-entrench and legitimize current power arrangements.’” The note argues instead for transformative reforms that disrupt the power imbalance between the prosecutors and the prosecuted, and integrate the prosecuted into the process of crafting these reforms. There is no doubt that people living under progressive prosecutors “have enjoyed meaningful benefits,” but “it is troubling that these benefits are so fortuitous—they are a product of how a prosecutor exercises her power.” Instead, we should confront a “regime controlled by dictators: not by asking them to be nice, but by demanding an entirely different form of government.” [Harvard Law Review]

Stories From The Appeal

 

Jakelin Caal Maquin of Guatemala died in the custody of U.S. Border Patrol. [Caal Family]

Caging Kids Is An American Tradition. President Trump didn’t start the practice, but we can end it, Ethan Brown, lead editor for The Appeal, writes.

Stories From Around the Country

Philadelphia will clear old convictions for minor crimes: The first phase of Pennsylvania’s Clean Slate law—which allows for some misdemeanors to be sealed for those who have stayed out of trouble for at least a decade—went into effect last week. The next phase, which will automatically seal some lower-level criminal records, is to begin June 28,” writes Samantha Melamed for the Philadelphia Inquirer. “For now, the FBI does not honor Pennsylvania sealing orders, so those who undergo federal background checks could still be flagged.” For convictions to be completely expunged, a person would need a pardon, but that process takes at least two years and requires a recommendation by the Board of Pardons followed by approval from the governor. For now, those with misdemeanor convictions for crimes such as simple assault, who have not had contact with the criminal justice system in a decade, have the opportunity to apply for jobs and housing with a little more peace of mind. [Samantha Melamed / Philadelphia Inquirer]

‘Ballistic Fingerprint’ database rests on shaky science, expands anyway: The National Integrated Ballistics Information Network (NIBIN) is a nationwide database of high-resolution images of shell casings managed by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The new investigative tool lets hundreds of local police departments match markings on shell casings with casings found at other crime scenes or guns. These results can be used as evidence at trial, or to generate leads. It’s based on the idea, as one officer told NPR, that the “ejector mark is the fingerprint of the shell casing” and the Department of Justice is allocating money and resources to put NIBIN terminals into the hands of local police departments across the country. But the idea that firearms leave unique imprints with each bullet is not supported by conclusive scientific evidence or experts, and flawed firearms forensics have led to exonerations, including from death row. But, as the founder of the nonprofit Forensics Justice Project says, “once we start building that narrative and it starts making sense, the more things we see that fit into that same narrative.” [Jonathan Levinson / NPR]

Nevada loosens its felony disenfranchisement rules, a little: A 2017 law that went into effect on Jan. 1 restores the voting rights of residents who have received a so-called dishonorable discharge from probation or parole. Many people receive a dishonorable discharge because they are unable to pay court fines and fees. However, The Appeal: Political Report explains that Nevada retains a harsh system even with this change; it is one of 12 states where some people are disenfranchised after completing a sentence. The initial version of the reform that ended up passing in 2017 was more ambitious, but it was weakened because of the threat of a veto by Governor Brian Sandoval, a Republican. Democrats take full control of the state government on Monday; this could open the door for further changes in the state’s felony disenfranchisement laws. [Daniel Nichanian / The Appeal: Political Report]

When police act as prosecutors: In an opinion piece, law professor Alexandra Natapoff writes that oftentimes, prosecutors are not the sole deciders of “who will be charged with a crime and what that criminal charge will be.” In the “enormous world of misdemeanor processing, the police quietly wield a lot of prosecutorial authority.” In at least 14 states, “police officers can file criminal charges and handle court cases, acting as prosecutor as well as witness and negotiator.” People accused of low-level offenses must defend themselves against, or negotiate plea deals with, the same police officers who arrested them. In South Carolina, police prosecute their own misdemeanor arrests, 90 percent of defendants have no lawyers, and lower-court judges do not need to be lawyers, so thousands of people are convicted without a single attorney present. Even where lawyers are present, police can become “de facto prosecutors” because prosecutors often fail to screen minor arrests, and simply charge arrests as the officers write them up. “So for voters seeking change, switching prosecutors is only a partial solution.” [Alexandra Natapoff / New York Times]

Thanks for reading. We’ll see you on Monday.

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