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Boston DA Nominee Embraces Next Frontier of Criminal Justice Reforms: Declining Cases

Many reform advocates believe that declining to prosecute cases is an effective way for prosecutors to shrink the system and break cycles of incarceration that disproportionately ensnare people of color.

Many reform advocates believe that declining to prosecute cases is an effective way for prosecutors to shrink the system and break cycles of incarceration that disproportionately ensnare people of color.

Rachael Rollins, the first Black woman to win the Democratic nomination for district attorney in Suffolk County (Boston), Massachusetts, has received national attention––including from Barack Obama. She ran as a reformer, promising “a criminal justice system in which addiction, poverty, and mental illness are not criminalized” and where “a resident’s socioeconomic status and race” aren’t relevant.

One of Rollins’s major campaign proposals, her plan to stop prosecuting 15 low-level offenses, has raised “skepticism and even alarm in legal and law enforcement circles,” according to the Boston Globe. Those offenses range from trespassing to drug possession with intent to distribute. Rollins has said her plan is not set in stone. It is “aspirational,” she said, “not a blanket commitment.” She has met with the departing DA and says she is eager to meet with the police commissioner.

Espousing debunked theories of criminology, Boston Police Patrolmen’s Union president Michael Leary said he’s “very concerned” about Rollins’s list; he believes that Boston’s crime rate will increase. “If you’re doing crime, you have to be held accountable for the crimes you do,” Leary said. “If you’re out there doing bad things then unfortunately jail is the answer.” He added, “It’s going to make our job harder.” Prosecutors joined in the criticism. William Fitzpatrick, president of the National District Attorneys Association, said, “I don’t think she’s properly taking into account the cost that criminals inflict on society even for minor crimes. Ignoring minor crimes leads to an increase in violent crimes.”

In a separate interview, Leary seemed to imply that police would continue to make arrests. “The law is still the law,” Leary said. “And if it’s a revolving door, it’s a revolving door, but we’re still going to do our job.”

Urging Rollins to stay the course, the Boston Globe editorial board wrote that many of the offenses on her list already result in non-incarceratory sentences. And one of the main beneficiaries of the policy would be young adults, who are “impulsive, subject to peer influence, and prone to the sort of petty crime at issue here,” they write. “The data show that most will ‘age out’ of crime by their mid-20s. But if they have criminal records, it can be much harder to build productive lives when they get older. And if they struggle, we all bear the cost—whether we’re paying for social services, incarceration, or some combination of the two.” To Rollins’s critics who warn of an increase in crime, the newspaper notes, “there’s no evidence for that claim. In Chicago, a progressive prosecutor has overseen a substantial drop in violent crime. And Philadelphia has done just fine since a crusading civil rights lawyer took over as DA.”

Many criminal justice advocates believe that declining to prosecute cases is among the most effective ways for prosecutors to shrink the incarceratory system and break cycles of incarceration that disproportionately ensnare people of color.

Declinations stand in stark contrast to drug courts and probation, which often carry the threat of years of incarceration that are often imposed automatically for even a minor drug relapse even though 70 to 90 percent of people who try to get sober experience at least one relapse. And diversion programs, which sound good in theory, can be costly in time and dollars, and available only to those with resources. In this sense, these alternatives to incarceration are not alternatives at all. Declining to prosecute, on the other hand, removes all entanglement with the criminal justice system.

Misdemeanors are particularly good cases to consider declining en masse, in part because they tend to cause less harm to society but also because they tend to receive the least attention from prosecutors. “Once police arrest someone, it is up to prosecutors to decide whether or not to charge the person with a crime,” explains law professor Alexandra Natapoff. “The system depends heavily on prosecutors to decline cases that lack evidence. But prosecutors often fail to screen misdemeanors precisely because they are seen as insignificant, and instead charge all petty arrestees on whatever basis the police arrested them. Studies in Iowa, New York, and North Carolina reveal that prosecutors declined only 3 or 4 percent of petty offenses.”

Law professor Carissa Byrne Hessick has written a legal defense of declinations, acknowledging that a decade ago, she might have been “extremely critical” of an announcement like Rollins’s. “Just as decisions about what to criminalize belong to legislatures, I would have said, so too do decriminalization decisions belong to legislatures, not prosecutors,” Hessick writes. “But having spent time studying the relationship between criminal justice institutions,” she says she no longer feels this way.

Legislatures have to a great extent delegated the scope of criminal law to prosecutors by writing overly broad criminal laws, relying on prosecutors to use their discretion. The district attorney is the one elected and empowered to make these decisions, so it makes sense for it to be an officewide policy instead of leaving it up to individual line prosecutors. To those who argue that this announcement will cause people to commit more crime, Hessick writes, she is dubious, and even if it were true, the announcement itself has benefits such as decreasing the chance of discriminatory enforcement. “Most importantly, public announcements make prosecutors democratically accountable for their enforcement policies,” she writes. “In an ideal world, I would probably agree that legislatures should make all criminalization and decriminalization decisions” writing “narrowly targeted criminal laws,” but “that is not the world we live in.”

This article was published on Sept. 14, 2018 as part of the Daily Appeal.