Tag Archives: district attorney

There’s a Wave of New Prosecutors. And They Mean Justice.

These district attorneys should make jail the exception and eliminate cash bail.

By Emily Bazelon and Miriam Krinsky The New York Times Op. Ed., Dec. 11, 2018

In the past two years, a wave of prosecutors promising less incarceration and more fairness have been elected across the country.

Republicans and Democrats are among the reformers, and they’re taking over district attorney offices in red and blue states. Five progressive D.A.s have been elected in major cities in Texas, of all surprising places, most recently in Dallas and San Antonio. In Houston, Kim Ogg was elected D.A. two years ago, and in the face of opposition from more than a dozen local judges, she has supported a lawsuit challenging the cash bail system for misdemeanor cases.

Local prosecutors, who handle 95 percent of the criminal cases brought in this country, are well positioned to take reform into their own hands because of their broad discretion over whether and how to prosecute cases and what bail they decide to seek against defendants.

And they’re exercising that discretion in new ways.

In Chicago, State Attorney Kim Foxx raised the threshold for felony theft prosecution to reduce the number of shoplifters who go to jail. In Philadelphia, the D.A., Larry Krasner, has instructed his prosecutors to make plea offers for most crimes below the bottom end of Pennsylvania’s sentencing guidelines. In Kansas City, Kan., District Attorney Mark Dupree created a unit to scrutinize old cases haunted by questionable police practices despite opposition from local law enforcement. More broadly, many of these new, progressive prosecutors are declining to prosecute low-level marijuana offenses and have stopped asking for bail in most misdemeanor cases.distr

But they’ve also encountered tough headwinds. We’ve seen these new district attorneys in action, and with input from two policy groups, the Justice Collaborative and the Brennan Center for Justice, we’ve come up with a set of principles and priorities to promote a progressive model of prosecution. There are 21 principles in all that offer D. A.s a blueprint to transform both their own offices and, with a push from advocates on the outside and help from other leaders on the inside, their justice systems. Since laws and practices vary from state to state, some of our recommendations won’t suit all jurisdictions. We intend them as a starting point.

Our recommendations begin with the premise that the level of punishment in the United States is neither necessary for public safety nor a pragmatic use of resources. Prosecutors can address this first by routing some low-level offenses out of the criminal justice system at the start. For the cases that remain, they can help make incarceration the exception and diverting people from prison the rule, a principle advanced by the district attorney in Brooklyn, N.Y., Eric Gonzalez. Finally, prosecutors should recognize that lengthy mandatory sentences can be wasteful, since most people age out of the period when they’re likely to reoffend, and also don’t allow for the human capacity to change.

As prosecutors know, locking people up makes them more prone to committing offenses in the future. They can lose their earning capacity and housing, leaving them worse off, often to the point of desperation. And so the community is often better served by interventions like drug or mental-health treatment, or by restorative justice approaches, in which a person who has caused harm makes amends to the victim. In some cases, the best response is to do nothing.

Achieving results, of course, matters more than making promises. In Brooklyn last Friday, the police arrested Jazmine Headley as she sat on the floor of a food stamp application office because there were no available chairs. The officers yanked her 1-year-old son from her arms, and the D.A.’s office charged her with resisting arrest and other offenses. Although prosecutors agreed to release her without bail, Ms. Headley was held at Rikers Island on a warrant from New Jersey for credit card fraud. The arrest was captured on video and outrage ensued. On Tuesday, Mr. Gonzalez said he was “horrified by the violence” on the video, promised to investigate and moved to dismiss the charges. But this arrest shouldn’t have happened in the first place, and the response from the D.A. illustrates the back-and-forth between reformers on the outside and an elected prosecutor on the inside.

If making jail the exception in criminal cases sounds revolutionary, it shouldn’t. In many cities and counties, misdemeanors make up about 80 percent of the criminal docket. With few exceptions, locking people up for these low-level offenses, and for felonies that don’t involve serious violence or injury, is the wrong approach. The states of California, New Jersey and New York have cut the rate of incarceration by about 25 percent even as crime has fallen at a faster pace than it has nationally. In other words, locking up fewer people has correlated with making states safer, not less safe. Nationally, the population of teenagers in detention has also dropped by half alongside a major decline in the crime rate among young people. Internationally, crime is down in developed countries where incarceration always remained relatively low.

To keep people out of jail who don’t need to be there, prosecutors have to rethink whether and how they charge defendants in criminal cases. Too often, they bring the maximum charges or stack charges to gain leverage: The bigger the threatened sentence, the more reason defendants have to plead guilty rather than risk everything at trial. A fair process begins with screening cases rigorously as early as possible, so cases supported by only weak evidence can be declined or dismissed. When charges are brought, they should reflect the facts and circumstances of each case, so that they’re designed to achieve a just result, not the heaviest possible penalty.

Prosecutors should also treat kids as kids. This means taking science and adolescent brain development into account, and not criminalizing typical adolescent behavior such as fistfights or infractions at school. It also means expunging juvenile records for many of the cases that are resolved or when no new charges are incurred after a few years so young people have a second chance. And it means refraining from trying people under the age of 18 as adults, except in very limited circumstances involving serious violent offenses.

Prosecutors should work to end the devastating impact the justice system has on people because they’re poor, by pushing for the elimination of cash bail and fines and fees that people cannot reasonably afford to pay. D.A.s should also push to shrink the number of people — currently about five million — who are under some form of probation or parole. Excessive supervision increases the likelihood that people who are otherwise at low risk of reoffending will end up incarcerated for technical violations like breaking curfew. Some states have shortened supervision periods with no increase in reoffending.

Certain criminal charges and convictions carry especially harsh consequences for immigrants, triggering detention and deportation proceedings. Being jailed before trial also increases the likelihood of being detained and deported by federal immigration officials. Entangling the local justice system in immigration enforcement erodes trust, discouraging immigrants from reporting crime and appearing as witnesses in court. To build trust, prosecutors should consider the immigration consequences of the charges they choose to bring.

Too often, D.A. offices operate like a black box, with crucial decisions about charging and pleas hidden from public view. District attorneys should collect and share data so that the public can hold the system accountable. They should track the outcome of cases by race to flag disparities, findings of prosecutorial and police misconduct, and the number of people who go to jail because they can’t pay bail. They should also post data on diversion programs, incarceration rates and what all this costs taxpayers.

In a democracy, people tend to value and uphold the law when they perceive it as fair. As these new D.A.s reimagine the American model of prosecution, they should be pragmatists, focused on the well-being of the communities that elected them. Fairness and safety aren’t a trade-off. They complement each other. This new corps of prosecutors can lead the way toward doing more justice with more mercy.

Miriam Krinsky is a former federal prosecutor and the executive director of Fair and Just Prosecution.

Emily Bazelon is a staff writer at the Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also a best-selling author and a co-host of the “Slate Political Gabfest,” a popular podcast.

 

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Save 12/12 & 12/13; Plan for 2018

Sign a petition to end the unfair Electoral College that delivered Bush II and Trump, whose opponents won the popular vote. This antiquated tradition emanates from 1776 when our wealthy white founding fathers deemed that the people could not be trusted with the responsibility to directly elected the president. 

If California had its proportional number of electoral college 200 votes, instead of a measly 50, we would be feeling less afraid today for America’s future.  Click here to learn more and make others aware of the necessity to dump the Electoral College.

SAVE Monday, Dec. 12, 7-8 pm. Join a statewide EMIT conference call to hear updates on the Council of State Government’s process to evaluate our justice/corrections systems, AND what legislation they are proposing to Beacon Hill, based on their neutral research. 

SAVE Tuesday, Dec. 13, 10 am, Boston. Join our allies, Jobs not Jails, at a rally/press conference across from the State House at 140 Bowdoin Street, Church of the New Jerusalem to call on the four state leaders filing the criminal justice reform to include the six proposals of the Jobs NOT Jails Coalition.

Make our votes count – other states give hope for 2018 election — in this article from The Nation. In Massachusetts, 14 district attorneys  will be up for re-election. We need to support alternative candidates who do not intimidate the accused and force plea deals to avoid trials. We have the power to elect sane district attorneys who embrace restorative justice. Many Massachusetts sheriffs ran with no opponent for 6-year terms. We  must levereage our power through voting and running for office. 

Election Night Saw Victories in Local Criminal-Justice Reform—This Should Be the Beginning

Local prosecutor and sheriff races are winnable and build power.

  • Joe Arpaio Protest

For progressives, winter came early this year. It started around 8:30 pm on Tuesday, November 8 and has been growing steadily colder ever since. Republican control of the White House, the House of Representatives, and the Senate, does not bode well for a range of issues close to the heart of American progressivism, from health care to immigration to the environment.

But, amid a sea of bad news that evening, there emerged an island of hope. It came, of all unlikely places, in Jefferson County, Alabama, home to Birmingham. On Wednesday morning, Brandon Falls, the incumbent Republican district attorney, conceded that he lost his seat to Charles Todd Henderson, who became the first Democrat to be elected district attorney in over a decade. Henderson won his race in deep-red Alabama by promising to end “mass incarceration of those with drug addictions and mental illness,” and by revealing that he is “not supportive of the death penalty nor incarcerating our children in adult jails and prisons.”

Henderson’s victory in Birmingham is no fluke. Until last year, district-attorney races tended to fly under the public radar. Elected prosecutors were routinely reelected, often running unopposed and, as a result, served for decades. When they did bother to campaign, their slogans frequently highlighted a record of sending as many people to prison for as long as possible. But that recipe for electoral success is changing. And, with increased attention to these races from extraordinary faith-based groups, community advocates, and local journalists, as well as an influx of support from national donors such as George Soros, progressive challengers are gaining footholds in local races across the country.

In Harris County, Texas, which includes Houston, Republican Devon Anderson lost her seat to challenger Kim Ogg, who has promised to overhaul drug prosecutions and has criticized the DA’s office for seeking the death penalty too often. The same basic story emerged in Hillsborough County, Florida, which includes Tampa, where incumbent Republican Mark Ober lost to challenger Andrew Warren. Earlier this year, elected prosecutors lost their primary races to more progressive, reform-minded candidates in Albuquerque, Chicago, Denver, and Jacksonville. In Corpus Christi, Texas, Mark Gonzalez, a criminal-defense lawyer and Democrat with the words “NOT GUILTY” tattooed on his chest, became the district attorney–elect this week.

These local electoral victories are not limited to prosecutor races. In Maricopa County, Arizona, Sheriff Joe Arpaio, infamous for his fearmongering, cruel and degrading tactics, and barbaric crackdown on immigrants, lost his election. The Harris County sheriff was defeated as well. Nor does the momentum for reform within local district-attorney and sheriff offices exclusively revolve around elections. In Seattle, a partnership among community groups, the public defender, law enforcement, and the King County District Attorney’s Office led to the creation of the Law Enforcement Assisted Diversion program, which steers people arrested for drug offenses and prostitution away from prosecution and into services aimed at decreasing recidivism such as drug treatment and job training. LEAD, which began in Seattle in 2011, spread to Santa Fe, New Mexico, in 2014, and to Albany, New York, earlier this year.

These victories represent tangible progress in the ongoing struggle among a dedicated band of progressive advocates in the fight for a more humane and sensible justice system, one that strives to keep us safe while simultaneously treating people fairly and conserving taxpayer dollars.

More importantly, though, this string of successes shows the enormous promise of focusing on both criminal-justice reform and American progressivism more broadly at the local level. While significant advances in climate change and immigration reform require congressional action, criminal-justice reform is an entirely different beast. The center of gravity for meaningful reform tends to be local. Should police officers use stop and frisk tactics? Conduct invasive raids of homes while investigating nonviolent offenses? Use military style vehicles? Those are decisions made by individual police departments or city councils, and are influenced by community advocates. Should prosecutors ask for bail, and how much? Prosecute nonviolent drug possession cases? Prosecute homelessness related offenses, such as sit-sleep-lie bans? Transfer juveniles to adult court? Seek the death penalty? For those decisions, too, local politics matter.

Local criminal-justice reform also serves as a bulwark against the worst impulses of Trumpism. What happens when a Donald Trump Justice Department, perhaps led by Rudolph Giuliani, refuses to intervene when a local police chief suppresses the speech of citizens who are protesting? How about when law enforcement fails to address targeted attacks on our most vulnerable citizens, such as ripping off a Muslim woman’s hijab? Mayors appoint police chiefs. So, here, too, local politics matter. If Trump continues to say that the Central Park Five should be executed, advocate for a national stop-and-frisk program, or claim falsely that the murder rate is at a 45-year high (it is not; in fact, 2015 had one of the lowest rates in 45 years), this use of the bully pulpit may stir local law enforcement and prosecutors into retributive excess. Resources and attention at the local level are an antidote to this fearmongering, allowing advocates and journalists to douse the flames before they can commence a second age of mass incarceration.

The election of Donald Trump may send forth global tremors in many areas. But it changes very little on issues related to criminal-justice reform as practiced at the local level. Roughly 50 million people live in just 15 of the counties that Clinton won this week. Some of these counties voted for Clinton by a margin of 2-1. If disheartened citizens and advocates chose to refocus their resources and attention to pushing reforms in these places, they could quickly see significant gains in the battle to end mass incarceration and help secure relief for millions of Americans.

Moreover, in 2017, there will be district-attorney races in several progressive strongholds. We know that there are over 100 such races in 2018. And that number does not include sheriff races. Nor does it include city-council members and county commissioners who shape budgets and priorities or mayors who appoint police chiefs. Progressive power could be particularly potent in urban areas, where so many progressive advocates reside, and where the need for reform is profound. Unlike at the federal (and often state) level, the population most burdened by overzealous prosecution and policing also possesses the most power to influence local politics.

Criminal-justice reform is not among many progressives’ priorities, but this local analysis shows why it should be. First, in places like Durham, North Carolina, traditional Democratic strongholds with large black populations situated in swing states, investing in local criminal-justice reform could help with voter turnout in 2018 and 2020. Given the narrow margins that tend to accompany wins in states like North Carolina, voter mobilization in these locations is incredibly important for progressives. Investment in criminal-justice reform at the local level creates a strong infrastructure that includes organizers, church leaders and civil-rights organizations. Unlike “out-of-town swoop down” get out the vote efforts, local power in the criminal-justice space draws on strong preexisting relationships, communications channels, and mobilization infrastructure. Most importantly, though, creating the energy to mobilize around local races serves as an insurance policy against national candidates who are less than inspiring.

One reason Clinton lost Ohio, Michigan, Pennsylvania, and Wisconsin—all by relatively small margins—is a persistent inability to connect with working-class white voters. Criminal-justice reform is an issue that can bridge this divide. Most people—black, white, brown, and Asian—have a family member, a neighbor, or a friend who struggles with mental illness and addiction. For many of us, and especially for those who struggle financially, those addictions inevitably intersect with the criminal justice system. White people, too, and especially marginalized white people who feel that government has abandoned them, struggle to pay overly punitive fines and fees, languish in jail because they cannot afford unnecessarily high bail, and struggle to find employment after convictions for marijuana possession and other low-level offenses. White people, too, are treated as disposable by the criminal-justice system.

There is also an opportunity to connect the massive taxpayer investment in stop-and-frisk and other programs that do not reduce violent crime with overly intrusive government, overzealous and unaccountable public servants, and colossal misuses of resources. Indeed, these are exactly the rationales that have propelled conservatives and libertarians, such as Right on Crime and the Koch brothers, into criminal-justice reform.

Finally, focusing on criminal-justice reform, especially at the local level, helps to create a pipeline of future progressive leaders. First, as an issue, criminal-justice reform is particularly compelling and often very personal, especially among those who have watched our broken system destroy the lives of family members and neighbors. A strong, progressive local criminal-justice reform community is able to attract and recruit the next generation of prosecutors, sheriffs, and other local officials.

These local officials become powerful in statewide prosecutor and police associations, groups with enormous influence at the statehouse, and often become state legislators, judges, attorney generals, and governors. Kamala Harris, who was elected to the United States Senate this week, is a striking example. She started as the district attorney of San Francisco County, became California’s attorney general, and now she’s headed to Congress. Who knows, perhaps the pathway from criminal-justice reformer to progressive visionary will take her all the way to the White House.