Just when you thought things could not get any more surreal or unsettled, the recent election results confirm that sometimes surreal and unsettled can be a good thing.
Take the latest winners in local district attorney races in Philadelphia and Brooklyn, for example. Philadelphia’s Larry Krasner and Brooklyn’s Eric Gonzalez are both self-proclaimed reformers – albeit with very different backgrounds – who won their races handily to join a small but growing number of newly or recently elected district attorneys who vow to “unsettle” the status quo and usher in a period of fantastic, if not “surreal,” reform.
Gonzalez and Krasner aren’t the only ones looking to the office of DA to make change. Kenneth Thompson, Gonzalez’ predecessor who sadly died of cancer before the expiration of his term, was an “outsider” who said he would “refuse to shrug his shoulders in the face of injustice.” Among other things, Thompson was heralded for his creation of a conviction integrity unit that dedicated substantial resources to investigating and uncovering cases of wrongful conviction.
As an attorney who advocates for children in the courtroom, I am always across the room from prosecutors and law enforcement. My choice of seat, however, does not cloud my vision of certain settled realities: Prosecutors have substantial influence on the criminal justice process. Prosecutorial discretion gives district attorneys a huge say in the charges and sentences that defendants face, yet past justice system reform efforts have not really focused on harnessing that power. Today, with law enforcement repeatedly escaping criminal responsibility for the killing of black men, women and children, electing ambitious and reform-minded prosecutors has jumped several spots on the political reform agenda.
Prosecutorial discretion is no less pivotal in determining the trajectory of justice for youth arrested for crimes. From the first moment of contact, prosecutors can decide whether to seek formal charges against the youth or tag that youth for diversion. If the crime is among the more serious, prosecutors’ charging choices may determine whether or not that youth is tried in juvenile or criminal court, a decision that will have profound and life-altering consequences for that youth. The prosecutor’s singular power in many states to make that choice means their power to reduce the prosecution of youth as adults is equally awesome.
When youth are charged as adults, many prosecutors also control whether that youth is housed pre-trial in a juvenile detention center or an adult jail. That choice can result in a highly traumatizing period of confinement ― away from family, peers and school ― that is exacerbated in every way if the youth ends up in jail.
A myriad of other points of passage through the justice system provide opportunities for the prosecutor to influence the outcome. Once adjudicated delinquent, prosecutors make recommendations for sanctions that can range from a fine to probation to incarceration. While the choice of disposition is not theirs alone, their influence in the courtroom is simply outsized. And once a youth has completed their disposition, many states – like Pennsylvania – give prosecutors unfettered discretion to veto a request by the youth to expunge their record, no explanation required. The risk for arbitrary and unequal denials of such requests is baked into such a scheme.
And for youth in the criminal justice system, where the stakes include potentially decades of incarceration, prosecutorial influence is not limited to charging discretion. With over 90 percent of criminal cases nationwide resolved through pleas, the plea bargaining process itself is highly determinative of outcome. But that process can be fraught for youth, who lack the cognitive understanding and developmental maturity to effectively manage and navigate that process. Prosecutorial sensitivity to this extreme power imbalance is essential to the pursuit of justice for these youth; ignoring the developmental attributes of youth will produce outcomes that likely run afoul of fairness.
The goal of racial and economic justice – persistently elusive – may also be more attainable with prosecutors like Krasner, Gonzalez and other like-minded reformers elected recently. Our justice system is riddled with racial disparities; at every point, the number of individuals of color balloons. The economics of our justice system likewise disfavor youth and adults of color, burdening them with financial debts and costs that invariably return them to the prisons they were released from. But with so much discretion to decide which doors open or close, prosecutors have the authority – and the responsibility – to ensure those doors remain open to all. Every decision they make – from diversion to charging to criminal court prosecution, plea bargaining, sentencing and other collateral consequences ― impacts the racial makeup of our justice system; are they ready to be partners in erasing generations of racism and racist practices, finally?
We must ask prosecutors, “How do you define justice?” For most prosecutors, that answer starts and ends with accountability, punishment and retribution. But the American way of extreme sentencing is an outlier to our peer nations around the world, which see justice as a journey back to community that begins on the first day of incarceration, with no sacrifice of public safety. Can we now paint one picture that captures a shared vision of a system that is smaller, more humane, anti-racist, and rehabilitative? Can we write a new narrative that values diversion over incarceration, treatment and education over punishment, dignity over humiliation?
Welcome aboard, prosecutors – we’re watching you.