We know how to make prosecution less awful, but many prosecutors work hard to resist any changes
The third season of “Serial”––the podcast that in many ways revolutionized the medium––focused on the everyday workings of one courthouse in one city: Cleveland. “We didn’t go to Cleveland and sift through hundreds of cases looking for the most egregious injustices we could find,” producer and host Sarah Koenig says in the final episode. “We didn’t have to. The ordinary ones told us everything we needed to know.” After nine episodes tracing the myriad quotidien injustices that fail Cleveland residents daily, she imagines what she would put in the courthouse suggestion box: “After hanging around this building for a year, I have many suggestions, just off the top of my head. I’d say, go minimalist. Don’t pile six charges onto a single crime when one charge will do. Don’t overcharge to force a guilty plea. Don’t lock anyone up, unless they’re demonstrably violent. Admit that police officers lie under oath. Get out of the punishment business and turn toward the urgent problem of fairness.” Koenig continues: “Keep obsessive track of who exactly is being charged with what crime, how their sentence shakes out, and what their life looks like in three years or five years. Take note of the color of their skin and how much money they make.” [Sarah Koenig / Serial]
“Cops, prosecutors, judges, lawyers—call out the colleagues who degrade your profession. Pay assigned attorneys and public defenders at least twice as much as you’re paying them now,” she says. “And overall, slow down. Doubt yourselves.” If only allowed one suggestion, she adds, “let’s all accept that something’s gone wrong. Let’s make that our premise.” She notes that the county prosecutor told her that “people need to realize we have the best criminal justice system in the world,” which indicated that prosecutors might concede that there is room for improvement, but they are “not chomping for an overhaul, the kind of extreme makeover that the data is screaming at us to undertake.” [Sarah Koenig / Serial]
Concrete actions to take in furtherance of an overhaul are not unknown. This week, Fair and Just Prosecution, in conjunction with Emily Bazelon, the Justice Collaborative, and the Brennan Center for Justice, released “21 Principles for the 21st Century Prosecutor.” These principles focus on rolling back over-incarceration and improving the fairness and efficacy of the system. The authors of the report––by way of disclosure, this newsletter writer was a contributor––offer “practical steps prosecutors can take to transform their offices, and collectively, their profession,” including examples of “innovative endeavors by prosecutors around the nation,” as “illustrations of new approaches.” The hope is that “prosecutors will adopt a new and bold 21st Century vision for meting out mercy and justice.” Among the principles for shrinking the system are: “make diversion the rule,” end cash bail, “promote restorative justice,” and “shrink probation and parole.” To make the system fairer, principles range from “change office culture” to “broaden discovery” all the way to “employ the language of respect.” [Fair and Just Prosecution, Justice Collaborative, and Brennan Center for Justice]
Some of the work highlighted in the report was enacted by relatively new prosecutors, elected on reform platforms, such as Larry Krasner in Philadelphia, Kim Ogg in Houston, and Kim Foxx in Chicago. But there was also innovation among those who have long held the office, such as Dan Satterberg in Seattle. Which is to say, all prosecutors can and should be heeding these calls for change.
But most of them don’t. And many actively block any attempt to make life more palatable for the people caught up in the system and their families. Josie Duffy Rice has written for The Appeal about the power of district attorney associations, groups with “strong policy perspectives” that have “enough sway to simply shut down criminal justice reform at the legislative level,” even changes that are so desperately needed, and so common-sense, that they have bipartisan support in deep red states like Alabama. As Jessica Pishko wrote in The Nation, “district attorneys’ associations are powerful political actors. They do not just ‘enforce’ the law; in fact, they help to make it.” Rice adds, “When it comes to criminal justice [prosecutor associations] are largely responsible for the gulf between policy and public opinion.” [Josie Rice Duffy / The Appeal]
Yesterday’s Daily Appeal included a story about a lawsuit brought by the New York state district attorneys association, challenging a prosecutorial oversight commission that was set to be formed. The district attorneys association declared its members will “not tolerate unconstitutional interference” in their work, writing in court filings that the law “unlawfully subjects prosecutors to discipline without any governing standards, in contravention of their due process and equal protection rights.” The oversight group’s formation has been delayed indefinitely. And this comes after the association—which, according to Rice, “has been shaping criminal justice legislation in New York for over a century”—helped to scuttle other reform measures that the governor had pushed, sorely needed in the areas of bail and discovery, where New York lags far behind other states.
Writing for the New York Law Journal this week, City Council Member Rory Lancman––who is running to unseat the anti-reform district attorney in Queens––notes that prosecutors have tremendous power in the system, and rarely face consequences for abiding by even the “limited restraints” that have been set. “No state, including New York, has embraced the responsibility of using its disciplinary rules to infuse prosecutorial decision-making with ethical standards that have teeth,” Lancman writes. “No New York state district attorney’s office has adopted such rules as internal policy. And relying on disciplinary rules generally applicable to all lawyers misses the important distinction between lawyers representing private interests and those—prosecutors—representing public ones.” He quotes professor Angela J. Davis, who has written: “As representatives of the state, prosecutors represent ‘the people’ (including the defendants they prosecute) and are charged with ‘doing justice’ rather than zealously pursuing the interests of individual clients.” [Rory Lancman and Rachel Graham Kagan / New York Law Journal]