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Meet the Criminal Justice System’s Most Powerful Actors

To reform the justice system, look to prosecutors.

Geneviéve Jones-Wright, candidate for San Diego DIstrict Attorney, is part of a cohort of candidates running as reformers.

Meet the Criminal Justice System’s Most Powerful Actors

To reform the justice system, look to prosecutors.

Our criminal justice system is broken.  America has the highest incarceration rate in the world with 2.2 million people in its prisons and jails.  The quality of justice that a person receives more often than not depends upon his or her income – whether, for example, he or she can post bail or pay for an attorney.  Public defenders carry huge caseloads and often don’t have investigators or other resources to provide a zealous defense. Since 1989, 2,218 innocent people have been exonerated after being wrongfully convicted. And the system is fraught with unwarranted racial disparities at every step of the process from arrest to sentencing.

The causes of the many problems in the criminal justice system are varied and complex, but research shows that discretionary decisions by criminal justice officials play a significant role.  Legislators pass harsh sentencing laws (with penalties much lengthier than sentencing laws in other Western countries), police officers engage in racial profiling, and judges often care more about efficiency than justice.  But the most powerful official in the criminal justice system who makes the most critical decisions that often lead to unjust results is the prosecutor.

The power and discretion of prosecutors cannot be overstated. They essentially control the criminal justice system through their charging and plea bargaining decisions. These decisions are arguably the most important ones by any criminal justice official, and prosecutors make them behind closed doors with no accountability. A police officer may arrest an individual if the officer has probable cause to believe that person has committed a crime, but only prosecutors decide whether an individual will be charged. Prosecutors may accept or reject the recommendation of the arresting officer. Prosecutors may bring more or less serious charges against the individual. But they are not required to charge an individual even if they have probable cause to believe the person has committed a crime. The decision to charge is totally within their discretion.

The charging decision has tremendous consequences for an individual accused of a crime. Because there is a proliferation of criminal laws in both the federal and state criminal justice systems, prosecutors have a wide range of options when making decisions. For example, if a police officer arrests an individual who is in possession of 10 bags of cocaine,  the officer may recommend that the prosecutor charge the individual with possession with intent to distribute cocaine — a felony that carries a mandatory minimum penalty of 10 years in prison in some jurisdictions. The prosecutor may accept the officer’s recommendation or may decide to charge the individual with possession of cocaine — a misdemeanor with a maximum penalty of one year. The prosecutor may also decide not to charge the individual at all. The ramifications of this decision are far-reaching and permanent. If the prosecutor brings the felony charge, the defendant not only faces the possibility of at least 10 years in prison, but may also be saddled with a felony conviction and all of its associated collateral consequences upon release.  These consequences may include difficulty securing employment, losing the right to vote, and losing eligibility for public housing and benefits, among others. If the defendant is not a citizen, he or she may face deportation.

Despite the importance of the charging decision and its life-changing consequences, prosecutors are not required to explain or justify their decisions to anyone (other than possibly their supervisors), nor are they required to follow rules or guidelines when making these decisions. The charging decision is not made in open court, nor is there any public record of why or how the decision was made. These decisions are made in the prosecutor’s office, without any transparency.

Prosecutors also control the plea bargaining process. Plea bargaining involves prosecutors making deals with defendants that permit them to plead guilty to a less serious charge in exchange for the prosecutor agreeing to dismiss the more serious charge or charges.  In theory, plea bargaining may be beneficial to the defendant, the prosecutor, and the entire court system. The defendant is not facing conviction on all of the charges, the prosecutor is guaranteed a conviction, and the court saves the time and resources required for a jury trial. The reality, however, is that plea bargaining is frequently an unfair and one-sided process. Like the charging decision, it is controlled entirely by the prosecutor. Prosecutors are not required to offer a plea bargain, and they are not required to justify the decision to anyone. Judges may not compel prosecutors to offer a deal, and in most jurisdictions judges are not involved with the plea bargaining process at all.

Prosecutors need only meet the very low standard of probable cause to bring charges against the defendant. However, to convict the defendant of those charges at a trial, prosecutors bear the much heavier burden of proving guilt beyond a reasonable doubt. Because they only have to meet the low probable cause standard, prosecutors frequently bring charges they know they may not be able to prove beyond a reasonable doubt. When facing an overwhelming number of charges, each of which may carry a long prison term and/or mandatory minimum sentence, defendants often feel pressured to plead guilty. Going to trial is risky  because the defendant doesn’t know what a judge or jury may decide, regardless of the strength or weakness of the evidence. Imagine a defendant charged with five drug offenses, each carrying a mandatory minimum sentence of 10 years. If that defendant goes to trial and is convicted of all five charges, he will go to prison for 50 years. If the prosecutor offers to dismiss four of the charges in exchange for the defendant’s guilty plea to one, it is easy to see how even an innocent person might plead guilty. And most people do. Ninety-five percent of all criminal cases are resolved with a guilty plea.

In addition, the overwhelming majority of criminal defendants are indigent and represented by overworked court-appointed attorneys with few or no resources to investigate their cases.  Defendants sometimes plead guilty in cases where they may very well have prevailed at trial, simply because their lawyers do not have the time or resources to mount an investigation that might reveal weaknesses in the government’s case and/or a defense to the crime. Prosecutors often increase the pressure on defendants by placing arbitrary deadlines on plea bargains, requiring the defendant to accept or reject the plea by a certain time or risk losing the deal. This puts defense attorneys in the unethical position of advising their clients about a plea offer before they have had the opportunity to investigate the case to determine whether there is a defense. Under these difficult circumstances, it is not surprising that so many defendants plead guilty. The alternative is just too risky. This is what passes as justice in America every day.

Prosecutors could make a big difference in improving our broken system if they made fairer charging and plea-bargaining decisions.  Prosecutors could choose not to bring charges in cases involving minor offenses, instead permitting the defendant to perform community service, do restitution and/or participate in needed treatment programs.  They could stop requesting that poor defendants be held in jail for minor offenses simply because they can’t post bail. They could ask for alternatives to incarceration in appropriate cases. So why don’t they? Because we don’t hold them accountable.

Ninety percent of all criminal cases are prosecuted on the state and local level, and prosecutors are elected officials in all but four jurisdictions (New Jersey, Alaska, Connecticut, and the District of Columbia).  And yet, as James Forman Jr. noted in his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, most of our attention is focused on federal legislation and executive orders from the Oval Office instead of the many and much more important decisions that take place at the local level.  Unfortunately, most people don’t pay attention to local prosecutor elections. Prosecutors frequently run unopposed and some serve for decades without a challenger. On the rare occasion when they are challenged, they have all of the advantages of incumbency and are difficult to unseat.

We must hold prosecutors accountable by becoming more involved in  elections. We must become more informed about the duties and responsibilities of prosecutors so that we are equipped with the necessary information to ask questions and demand responses.  Because prosecutors have so much power, if we elect people who are committed to fairness and racial justice, they can make substantial progress toward reforming the criminal justice system.

According to the Supreme Court, the prosecutor’s duty “is not that it shall win a case, but that justice shall be done.” In recent years, a number of progressive prosecutors who understand this duty have been elected in jurisdictions across the country. These individuals are committed to using their power to reduce the incarceration rate and the many unwarranted racial disparities in the criminal justice system.  Prosecutors like Kim Foxx in Chicago and Larry Krasner in Philadelphia campaigned on themes of racial justice and reducing incarceration and won their elections. Each of them has made important policy decisions that have already begun to make a significant difference. For example, Krasner instructed his prosecutors to make plea offers to defendants that include proposed sentences below “the bottom end” of the sentencing range for each crime. Foxx stopped prosecuting misdemeanor driver’s license offenses and raised the bar for charging felony retail theft offenses to $1,000 from $300, drastically decreasing the number of retail theft cases. Their successes have inspired others who are committed to racial fairness in the criminal justice system to run for office.  Many, such as Genevieve Jones-Wright in San Diego, whose platform includes significant reform of the cash bail system, are running this year.  If this trend continues, perhaps the democratic process can work to effect change. If those of us who care about fairness and racial justice work to elect progressive prosecutors and hold them accountable, with time and hard work, we can fix this broken criminal justice system.

A Man Menaced Me with a Gun — But I Struggled with Calling the Cops

Tony Webster / Flickr

A Man Menaced Me with a Gun — But I Struggled with Calling the Cops

We were both speeding on the highway’s one-lane exit ramp, but apparently I wasn’t going fast enough.

The driver behind me was furious. He rode my bumper, revved his engine impatiently and, when the road widened, raced next to me to roll down his window and glare.

Then he sped in front of me, only to slam on the brakes. He slowed and when he switched lanes, I grabbed my phone and opened the camera app. When our cars were parallel, he flashed a gun at me. A big gun.

I have clear photos of his black Mustang, his white license plate, and his brown face.

What I didn’t have — and still don’t have — was confidence in the police when it comes to interacting with people of color.

And that’s why I agonized over whether to call police when this young Black man menaced me on a busy Memphis highway in early May. I did not want to set in motion a chain of events that had even the most remote chance of ending in this brother’s death. And that’s what I’d be doing if I filed a police report.

This does not feel rational. I am aware that most police-civilian interactions end peacefully. It doesn’t seem fair that I’d be so concerned about this driver’s future when he had no concern for mine.

Was this some twisted racial solidarity? A meaningless stand against police brutality? A one-woman protest against mass incarceration? A warped and gendered desire to protect Black men, to rush to their defense regardless of whether they rush to Black women’s sides? Was my decision being unduly influenced by disturbing recent events in which white people used law enforcement as a weapon to police spaces intended for other white people?

But my road rage encounter happened before a slew of harrowing incidents involving white people calling the police on people of color. It happened before a white Yale grad student called police on a black grad student who had fallen asleep in a dorm’s common room while studying. And before news broke that a white woman in Oakland called the cops on Black men who were barbecuing in a public park, a Nordstrom Rack employee called the police on three black teens wrongly suspected of shoplifting, and, in my hometown, a white woman phoned the Memphis police about a Black real estate investor inspecting a neighboring home.

Nonetheless, my incident was after a white Philadelphia Starbucks manager called police on two black men who had yet to place an order. It was after an unreasonably anxious white mom called police on two Native American teens who joined a Colorado college tour late. And it happened after a nosy neighbor in Rialto, California, brought a swarm of police to investigate Black Airbnb guests, including a granddaughter of reggae icon Bob Marley, because they didn’t wave at her while they were checking out.

Ultimately it was my brother, a former public defender, who convinced me to at least call the police. A guy reckless enough to pull a gun on a busy street in broad daylight is dangerous, my brother reasoned. What if he went on to hurt someone else? In Memphis, where the population is two-thirds black, that victim would likely be African-American too. Should my allegiance lie with a potential victim? The gun-toting driver?

And so, hours after the incident, I called the police — and then immediately worried some more: What if his encounter with the police somehow turned bad?

When two officers — one white, one Black — came to my house, I met them outside. I hoped that if my white neighbors saw my body language, they would know that I was talking to police as a victim, not being interrogated as a suspect. But as I tried to explain to the cops what happened and how I wasn’t sure if I should have called them, my nerves turned into tears.

Whoever this angry motorist was, flashing a gun isn’t a capital offense, I told the officers. I even cautioned the cops that if they spotted the black Mustang I described it might not be the same driver at the wheel.

Rambling, I felt obligated to point out things about how they might carefully conduct the investigation that they surely already knew, as if casting these facts into the air would be insurance against the worst-case scenario. I then mumbled something about Philando Castile — who was shot and killed in 2016 after a Minnesota cop mistook him for a robbery suspect — and the white officer looked puzzled. The Black officer nodded and said he understood.

If I filed a report, the white officer told me, police would look for the car and contact the registered owner. If they found the driver, a warrant would be out for his arrest.

But filing a report meant creating a public record complete with my name and address, the information this hothead might use to find me. I said no, I wouldn’t be filing a report, both because I was concerned for my safety and the collateral consequences for the driver. They said they understood, and if I changed my mind, to call the non-emergency number the next morning.

I don’t know if I did the right thing. I guess it’s better safe than sorry — except I don’t feel safe.

Only sorry.

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Lawsuit Tests the Supreme Court’s ‘Immunity Protection Program’ for Police Officers Who Kill

Brittany Hogan / Flickr (CC BY-NC-ND 2.0)

Lawsuit Tests the Supreme Court’s ‘Immunity Protection Program’ for Police Officers Who Kill

On May 23, 2013, Khari Illidge, a 25-year-old Black man in Lee County, Alabama, was face down and hogtied, with a 385-pound police officer kneeling on his back, when he suddenly went limp and a mixture of white froth and blood seeped from his mouth.

Sheriff’s deputies had confronted Illidge while he was running in the street naked, unarmed, and, the deputies agreed, suffering a mental health crisis. When Illidge did not heed commands to stop, the deputies used the electric shock of their Tasers to subdue him. They tased him 19 times, 13 of which came after he was on the ground with two officers on his back. One officer later testified that tasing Illidge on the ground served no purpose other than to inflict pain and shut down his nervous system.

The officers then handcuffed Illidge and shackled his feet behind his back in the hogtie position because he was “thrashing” and making “unintelligible” utterances. Officers called paramedics when they saw the blood in his mouth, and he was pronounced dead soon after.

Khari Illidge on his 25th birthday.
Photo provided by LDF.

Illidge’s estate brought a federal civil rights suit against the officers involved in his death, citing Fourth Amendment precedent that police may use force only to serve a legitimate purpose. But both the trial court and court of appeals granted the officers “qualified immunity,” which shields officers from civil liability unless their conduct clearly violates the Constitution.

Last week, the NAACP Legal Defense and Educational Fund (LDF) filed a petition asking the Supreme Court to review the grant of immunity. The case is the latest test of the Court’s role in the nation’s ongoing struggle to hold police accountable for fatal violence, particularly against young African American men. It also highlights a question that has gained urgency among legal commenters and some members of the Court: Will the Supreme Court use its discretion equally to protect victims of police violence as it does to protect the rights of police?

In recent years, the Supreme Court has quietly carved out a special space on its docket to enforce the civil immunity of police officers, going out of its way to ensure that lower courts strictly apply immunity. Law professor Will Baude has called it the Court’s “immunity-protection program.” With Illidge’s petition, the Court can take the same steps to enforce the rights of someone killed by police, or it can allow the lower court’s grant of immunity to stand, and further entrench its role defending officer immunity and undermining police accountability.

For decades, the Supreme Court has favored a strong version of immunity in civil rights cases against police and other government officials, with any immunity case before the Court a nearly foregone conclusion. By one count, the Court has conclusively denied immunity just twice in over 30 opportunities in the last 36 years. The Court’s robust view of qualified immunity has made it harder to sue police officers for violating constitutional rights than for causing injury through ordinary negligence.

But under Chief Justice John Roberts, the Court has deployed an additional tool to protect officers from liability: summary reversal. Ordinarily, the Court takes cases to resolve clear disagreements among the federal appellate courts, or to decide a pressing legal issue of national significance, and then decides after full briefing and oral argument. Not so with official immunity. Instead, the Court has effectively patrolled the lower courts on the issue, looking for mistaken denials of immunity and then summarily reversing them. The Court has done this six times since 2013, including in April of this year. In one case, an officer ignored superior commands and shot at a fleeing car six times from an overpass, killing the driver, rather than allowing the car to hit spike strips in the road. In the most recent case, an officer shot a woman four times while she stood in her front yard with a kitchen knife; it was unclear whether she even knew officers were there.

Justice Sonia Sotomayor has become a vocal critic in dissent. Last year, she called out the Court’s double standard when it declined to review immunity granted to an officer who shot an unarmed man in the back while he walked away from the officer. It is a “disturbing trend,” she wrote, that the Court has “not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force,” yet “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

In April, when the Court summarily granted immunity in another officer shooting, Justice Sotomayor decried the Court’s “unflinching willingness” to intervene on behalf of police in excessive force cases. The “one-sided approach to qualified immunity,” she wrote, “transforms the doctrine into an absolute shield for law enforcement officers” and “tells officers they can shoot first and think later.”

For the most part, the Court’s majority has not concealed and has in fact defended its zeal to shield officers and prioritize immunity over accountability. An opinion last year explained that “in the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases … because qualified immunity is important to society as a whole.” And in 2015, Justice Samuel Alito wrote that “the Court often corrects lower courts when they wrongly subject individual officers to liability.”

But in response to Justice Sotomayor last year, Justice Alito made a curious denial of what appears to be an obvious a double standard. He said the Court “applies uniform standards in determining whether to grant review in cases involving allegations that a law enforcement officer engaged in unconstitutional conduct,” and challenged Justice Sotomayor to identify “a single case” where a victim of unconstitutional policing raised the same sort of error that has triggered Supreme Court intervention when claimed by police.

Lawyers for Khari Illidge’s estate argue their client’s claims present just such a case.

Whether the Court applies a uniform standard going forward — correcting errors not just to protect police but also victims of police brutality — is not just an academic matter. The small number of cases the Court decides have far-reaching consequences, affecting the relationship between police and communities across the country. Daniel Harawa, assistant counsel at LDF, said the Court’s failure to review Illidge’s death would not only condone the officers’ conduct in his case, but “could cause the public to wonder when, if ever, police officers will be held accountable for their unnecessary use of deadly force.”

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