Progressive Prosecution: Race and Reform in Criminal Justice 9781479809974

Citation preview

Progressive Prosecution

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Progressive Prosecution Race and Reform in Criminal Justice

Edited by Kim Taylor-­Thompson and Anthony C. Thompson

NEW YORK UNIVERSIT Y PRESS New York

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N EW YOR K U N I V ER SI T Y PR E S S New York www.nyupress.org © 2022 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Names: Taylor-Thompson, Kim, editor. | Thompson, Anthony C., editor. Title: Progressive prosecution : race and reform in criminal justice / Kim Taylor-Thompson, Anthony C. Thompson. Description: New York : NYU Press, [2022] | Includes bibliographical references and index. Identifiers: LCCN 2021037351 | ISBN 9781479809950 (hardback) | ISBN 9781479809967 (ebook) | ISBN 9781479809974 (ebook other) Subjects: LCSH: Prosecution—Social aspects—United States. | Prosecution—United States— Decision making. | Discrimination in criminal justice administration—United States. Classification: LCC KF9640 .P754 2022 | DDC 345.73/05042—dc23 LC record available at https://lccn.loc.gov/2021037351 New York University Press books are printed on acid-­free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook

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Contents

Introduction: Reckoning in the Moment

Kim Taylor-­Thompson and Anthony C. Thompson

1

1. A Progressive Vision: Leading the District Attorney’s Office

19

2. 2020 Vision and the Five Pillars of Criminal Justice Reform

55

3. Transforming the Culture: Internal and External Challenges to a New Vision of Prosecution

95

Anthony C. Thompson Dan Satterberg

Angela J. Davis

4. Rethinking How Prosecutors Deal with Race and Implicit Bias

133

5. There Are Children Here: Reconceiving Justice for Adolescent Offenders

167

6. Prosecutors’ Offices as Data-­Driven Organizations: Improving Effectiveness and Fairness

213

7. The Crucible of Progressive Prosecution: Notes from the Field

252

William C. Snowden

Kim Taylor-­Thompson

Don Stemen

Kimberly M. Foxx

Acknowledgments 283 About the Editors 285 About the Contributors 287 Index 289

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Introduction Reckoning in the Moment Kim Taylor-­T hompson and Anthony C. Thompson

Nine minutes and 29 seconds. That was the amount of time Minneapolis police officer Derek Chauvin pressed his knee and body weight on top of George Floyd’s neck, ignoring his desperate pleas to breathe. That single act of brutality ended Mr. Floyd’s life and launched a global uprising. A simple, vulgar truth—­one policeman’s violence against a human being slipping into unconsciousness and death—­ could not be contained and ignored: the world became suddenly and painfully aware that such brazen violence perpetrated by some who are sworn to serve and protect was a daily reality, especially for people of color. Worse still, the violence was casual, normal, even routine. Young Black men are 21 times as likely as their white peers to be killed by police.1 Blacks are more than twice as likely as whites to be unarmed when killed during encounters with police.2 George Floyd’s name has now become part of a legacy of state-­sanctioned brutality in the American criminal justice system. But, as stark a picture as that paints, it is incomplete. Filling out this grim story is another ugly truth: police officers who engage in racial violence rarely, if ever, face any criminal consequences for taking a life.3 In fact, without intense and sustained public pressure, Chauvin would likely have escaped prosecution and gotten away with murder. This time, though, the video footage of George Floyd’s torture and murder awakened a complacent public and splintered the landscape. The world erupted—­as it should have—­because all of us witnessed firsthand that Black lives are at risk and disposable in America today. People across the nation—­and around the globe—­took to the streets demanding more than justice-­as-­usual. That audacious step in the middle of a pandemic 1

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made clear that the public was unwilling to let George Floyd’s name become just another trending #hashtag. Rote denunciations of the violence also would not quell public outrage. Political leaders rushed to issue statements condemning Chauvin’s actions, but one former prosecutor’s statements did more harm than good. When Senator Amy Klobuchar of Minnesota publicly decried Chauvin’s brutality and called for charges to be filed, her statements fell flat. Klobuchar had served as District Attorney in Minneapolis, and her record there stood in stark contrast to her belated condemnation. Klobuchar had failed to bring charges against multiple officers involved in shootings during her tenure.4 When Klobuchar was serving as the DA, relatives of victims of police brutality had asked her to bypass the grand jury process because it had become crystal clear that cases involving police violence rarely led to an indictment. But Klobuchar declined to make any substantive changes. In fact, her track record exposes practices that were overly friendly to police officers and largely inattentive to victims of police violence. Public outcry about impunity for police during her tenure ultimately sank Klobuchar’s chances of becoming Joe Biden’s running mate in the 2020 presidential campaign. More important, prosecutors’ complicity in—­and inaction against—­police violence has inflicted wounds in communities of color that never healed and were (and even remain) painfully raw. The local and nationwide protests surrounding George Floyd’s death made clear that the city—­and this country—­needed at long last to reckon with racism and racial violence before life would return to anything like normal. But what made this the moment? Why did George Floyd’s death draw an indelible line in the sand? One possibility was that his death came as the culmination of a series of high-­profile racialized confrontations. In February, Ahmaud Arbery, a 25-­year-­old Black man, was hunted, shot, and killed by three armed white men as he jogged through a South Georgia neighborhood. Local prosecutors initially determined that the behavior of these three men was “perfectly legal.” The case would have ended there, but a video of the chase and shooting surfaced and went viral. New prosecutors from outside the county were brought in to assess the case. Finally, the three men were charged with murder two months after Mr. Arbery’s death. Then, in March, Breonna Taylor, an emergency medical technician, was fatally shot by three plainclothes

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Introduction | 3

Louisville Metro Police Department officers who entered her home on a no-­knock search warrant. They had broken into the wrong home. Ms. Taylor’s boyfriend, licensed to carry a gun, fired at these intruders. The police fired more than twenty shots, hitting and killing Breonna Taylor, who was unarmed. Prosecutors did not charge any of the officers in her shooting death. Over the next month, a series of incidents revealed white people weaponizing the 911 emergency system to patrol racial boundaries that they wanted enforced. Almost on a weekly basis, there were online accounts of white people calling the police to report Black people doing nothing more than going about their daily lives. And prosecutors took no steps to charge those callers as a way of exercising some control over the broad misuse of the 911 system. That practice reached an inflection point on May 25, 2020, just twelve hours before George Floyd would lose his life. A white woman, Amy Cooper, dubbed “Central Park Karen,” was caught on video falsely claiming that a Black man with the same last name, Christian Cooper, was threatening her. He had actually been bird-­watching and asked her to leash her dog in compliance with park regulations. The video showed that he was not engaging in anything illegal even as she was calling the police to report “an African American man threatening my life.” Once again, the all-­too-­familiar pattern emerged. Amy Cooper was not immediately arrested or charged, although the video demonstrated her false accusation and report.5 It was only after a public outcry that the Manhattan District Attorney filed charges. This series of events one after the other exposed not only this country’s habit of conflating brown and black skin with dangerousness but also prosecutors’ complicity in tolerating and ignoring disturbing incidents. Perhaps the crescendo of events proved too much to ignore. More likely, the reason that George Floyd’s death brought the country to its knees and its senses was this: we all witnessed this murder. Virtually every single household in America watched the footage, filmed by a bystander. As a country, we were just beginning to grapple with the initial wave of COVID-­19. More than half the states had issued some sort of stay-­at-­home order to slow the spread of the pandemic,6 so millions of Americans were inside homes, becoming bored with the sameness of the days. When that footage became public, it went viral. Black folks felt almost compelled to watch the recording as the latest life lesson. Maybe

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it is a survival mechanism or just a common acceptance that Mr. Floyd could have been anyone of us. We could see ourselves in his face; we could feel his fear. We have grown up in a country understanding that on any given day it can take less than ten minutes to turn any one of us into a statistic. But, this time, Black people were not the only ones watching. White Americans likewise could not look away. White people do not typically experience these sorts of lethal police encounters. They are immunized by skin color, privilege, and place. And, in ordinary times, the distractions of work or daily activities would likely have drawn their attention away from the video proof. But these were not ordinary times. So, all of us—­regardless of race, place, and position—­watched. And what we witnessed took our breath away. We watched that officer’s reflexive disdain as he casually kept his hand in his pocket while deliberately pressing his knee into a man who posed no threat. Having witnessed that criminal act, people around the world expected a rapid response from the prosecution. They didn’t get it. The gap in time between Mr. Floyd’s murder and prosecutorial action seemed inexplicable given what we had witnessed with our own eyes. It also seemed wholly unanchored to any reasonable sense of justice. Instead, with each passing day, public protests amped up and public trust in the integrity of the justice process withered. On the morning after the killing, and hours before the video went viral, the Minneapolis Police Department spokesperson released misinformation in a statement titled “Man Dies After Medical Incident During Police Interaction.”7 Mike Freeman, the Hennepin County Attorney, held a press conference to discuss the case three days after the killing. He acknowledged that the video was “horrific and terrible,” but he added “there is other evidence that does not support a criminal charge.” Freeman did not wait for the complete review of the evidence before casting doubt on the guilt of the officers. And, of course, his knee-­jerk acceptance of the police version of events would later prove wrong. But it is emblematic of a key issue for prosecutors: their cozy relationship with police departments too often blinds them to the criminal conduct of officers. Protesters recognized the familiar pattern of prosecutors providing cover for the officers. As a result, they openly called on prosecutors to hold police accountable to at least the same standard they have for ci-

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Introduction | 5

vilians. In the end, it took four days of protests before the Hennepin County Attorney’s Office took action. Prosecutors issued an arrest warrant for Derek Chauvin, charging him with only third-­degree murder and second-­degree manslaughter. The prosecutors had responded to the pressure, but the reduced charges merely served to sow deeper distrust in the system. The charges drew rapid criticism. Legislators, members of the City Council, the ACLU, and local activists pushed for the intervention of a more independent prosecutor. In the end, Governor Tim Walz brought in the state attorney general. Charges were then upgraded on June 3, 2020, to second-­degree murder. During the trial of the now former officer Chauvin, prosecutors presented overwhelming evidence of guilt, so it is telling that so many of us held our breath, unsure whether a conviction would actually occur. But, on April 20, 2021—­for the first time in Minnesota’s history—­a white policer officer was found guilty of murdering a Black man. A diverse jury found Chauvin guilty of all counts. And the world celebrated that moment of individual reckoning. But the system that produced and enabled Derek Chauvin—­the system that devalues Black and Brown bodies—­is still in place and in need of a fundamental reckoning. In the aftermath of Mr. Floyd’s tragic death, something tectonic shifted in the country. The broad-­based uprisings marked a new chapter in the struggle for justice and racial equity. Protesters refused to be appeased by the conventional responses to police violence. Recommendations for better screening of officers, well-­meaning efforts to improve detection and tracking of offenders, and improved data collection systems seemed little more than retread tires. Instead, protesters took more radical stances and made bolder demands. They were insisting that governments defund the police, invest in interventions to improve community health, and engage in a fundamental rethinking of what it takes to keep communities safe. Police unions and then–­United States Attorney General William Barr took more conservative positions, suggesting that conventional approaches were all that were needed to remove “a few bad apples.” They pushed against the tide, looking to resist any real change in a system that they wished to preserve. But the protesters held fast to their demands. Importantly, their anger was not focused only on police. Protesters took direct aim at every part of the justice system. Courts took the unprecedented step of issuing statements, acknowledging their

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role in enabling racist processes in the justice system.8 Some police chiefs acknowledged systemic failures. Public defenders and associations of defense lawyers confirmed the racialized experience of justice their clients suffer and urged greater efforts to dismantle the systemic racism that leads to that disparate experience.9 However, with few exceptions,10 one actor within the justice system remained painfully silent: prosecutors. They should have been the first to step up. Their role is inextricably linked to the drain in trust in this system. The police answer to prosecutors. In cases of police violence, prosecutors decide whether, when, and how to charge officers. Too often, though, prosecutors have looked the other way when it comes to the racism that infects police departments. Washington, DC—­January 6, 2021. Of course, no one could look away. If there had been any doubt about racism in the ranks of law enforcement, the insurrection at the United States Capitol erased it. Racism was on full display. The investigations in the aftermath of that violence have only begun to expose the active links between law enforcement and white supremacy groups. At least thirty people with law enforcement training thus far have been identified as Capitol rioters. They were among the mob of Proud Boys, Three Percenters, and other nationalists attacking Capitol Police officers, carrying Confederate flags, and erecting a noose on the mall. But, of course, January 6 was only the latest and perhaps most visible display of connections between white supremacy and law enforcement. White nationalist groups have openly shared tactics for infiltrating police departments for many years. An examination of public social media posts by police officers reveals explicit racist attitudes wrapped in celebrations of violence. The Plain View Project has tracked material from more than 3,500 confirmed current and retired law enforcement officers and found that “about 1 in 5 of the current officers, and 2 in 5 of the retired officers” made public posts or comments displaying bias, applauding violence, scoffing at due process, or using dehumanizing language.11 Taking steps to hold offending officers accountable for their acts and thereby protect the public—­especially Black communities—­from police violence is key. But as important as accountability may be, that is not the only change prosecutors must undertake. In fact, police accountability is table stakes, involving only the most basic of actions that the law requires of pros-

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Introduction | 7

ecutors. Local prosecutors must do that—­and more. Prosecutors have always held the power to protect the public, but they must now begin to acknowledge the ways that race infects their processes, and they must begin to be more race-­conscious in any efforts to transform the experience of justice into one of fairness and equity. The integrity of the justice system depends on it. Lives depend on it. Indeed, the pattern of racism that plays out daily in the operations of the criminal legal system has sparked calls for an abolition of the criminal legal system as we know it. The argument for abolition insists that injustice sits at the core of the system’s design and that no actor is untainted by racism. Consequently, adequate reform is not possible, because the system itself cannot be fixed. These activist reformers contend that what is needed is wholesale abolition and a radical rethinking of safety and criminal punishment. There is certainly merit in that view, particularly as it makes plain that incremental change will not suffice to bring justice back into the criminal legal system. But even if abolition may be desirable, we believe that prosecutors and the criminal legal system will likely persist. So, Progressive Prosecution: Race and Reform in Criminal Justice looks to advance a broader, more robust definition of “reform.” Reforming/re-­forming the system means just that: rethinking from the inside out how it operates, where it falls short, where it needs to be reimagined. And each of the contributors to this book starts from the premise that the prosecution function should be the place where that reformation/re-­formation begins.

Spearheading Race-­Conscious Criminal Justice Reform Genuine change does not happen sedately. It often happens at odd, arhythmic intervals. No one could have predicted that the world would demand transformational justice reform in the middle of a pandemic. But it did. Still, even before George Floyd’s murder, criminal justice reform had become both a national imperative and a rallying cry. In surprisingly nonpartisan ways, political leaders had managed to bridge lines of difference in agreeing that the country can no longer build and sustain a system of mass incarceration. The human, societal, and financial costs of that devouring system are simply too high. The United States still leads the world in the number of people it imprisons, but we

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are beginning to see promising signs of change. On the front end, prosecutors are diverting greater numbers of cases out of the system, limiting the flow of new cases into the formal justice process. Indeed, that effort increased with the potential virulence of COVID-­19. More DAs began to assess whether people charged with minor offenses needed to be confined at all.12 At the back end, state and local governments are closing prisons or, at least, reducing their size. And lately, those efforts have redoubled as the outbreak of COVID-­19 in prisons and jails has pushed local officials across the country to mandate some releases based on public health concerns. These efforts represent meaningful and measurable progress toward reducing states’ overreliance on mass incarceration. But embedded in that encouraging story is a vexing truth. Even as the justice system is shrinking, racial disparities continue to rise. The American criminal legal system continues to be the place where deeply embedded racialized perceptions shape decisions about who deserves punishment and who does not. Of course, racial inequity in the criminal justice system is not new or accidental. Throughout this country’s history, justice officials and political leaders have almost reflexively targeted communities of color, disproportionately linked individuals of color with criminality, and repeatedly used imprisonment as a tool of social control against marginalized communities. Modern reformers have seen these perverse effects and, somewhat naïvely, believed that lowering incarceration levels would generate a similar reduction in racial disparities. But that neat expectation has wholly misunderstood the tenacity of the habits of racial domination. Eliminating—­or, at the very least, reducing—­racial effects will never occur as a side-­effect. Reckoning with the effects of racism and poverty must take center stage as we look to reimagine the future of the criminal justice system. The question is who is positioned to take on that challenge? Who should lead the work of redefining and transforming the criminal justice system? Progressive Prosecution: Race and Reform in Criminal Justice answers those questions: fundamental criminal justice reform can and must be spearheaded by the office of the district attorney. DAs play a central role in the American criminal justice system. They make a host of key policy decisions, ranging from setting enforcement priorities to determining whose voices will have influence in establishing those objectives. They exercise extraordinary discretion when making charg-

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Introduction | 9

ing decisions: whether to charge, what to charge, and whom to charge. Given that 95–­98 percent of all criminal cases are now resolved through guilty pleas (i.e., common plea agreements), prosecutors actually control the outcome of the vast majority of criminal cases. But because the exercise of these responsibilities occurs without any real transparency, there is potential for abuse. Indeed, the national data overwhelmingly reveals that disturbing racial disparities plague every stage of the criminal process. So, it is not at all surprising that criminal justice activists have chosen to concentrate on changing the way the district attorney’s office functions as the tip of the sword in the fight for change within the justice system. That choice has begun to pay off. A growing number of “progressive” prosecutors have run for office and won local elections by promising meaningful criminal justice reform. Their platforms articulate bold ambitions about the need both to reduce incarceration and to increase awareness of the racialized impact of prosecutorial policies. This progressive movement, while still in its nascent stages, is historic and worthy of attention. It has begun to insist that it is the prosecutor’s responsibility to “do justice” rather than simply to punish and imprison. The problem today, though, is that too often criminal justice reform is being pitched and perceived as the sole province of these few newly elected prosecutors. Of course, we need these progressive prosecutors. But the problem is much bigger than that. The few dozen prosecutors who have been elected cannot possibly reform and transform the system by themselves. Their numbers are far too small to create sustainable change in the justice system. Worse still, the microscopic attention to every action taken by progressive prosecutors has subjected them to greater scrutiny compared to other district attorneys across the nation. In fact, the media spotlight opens these new prosecutors to relentless critiques and attacks, often before their policies can gain traction or develop a track record from which the criminal justice system might benefit or learn. The ultimate goal is to transform the entire criminal justice system, not just those in a few cities. But by focusing on a few progressive prosecutors, we have unintentionally diverted attention from the fact that all district attorneys share an obligation to transform the justice system. More than 2,300 separately elected prosecutors are setting policies

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across the country.13 Their individual and collective decisions will either sustain mass incarceration or shift our justice system to a fairer path. If we give established offices what amounts to a pass, we guarantee that systemic reform will fail. Similarly, the claim that only those prosecutors who have declared themselves as being “progressive” can effect needed reform completely overlooks the fact that some existing district attorneys have already come to embrace and insist on applying a racial justice lens to the work within their offices. Much of the work done by these district attorneys has gone unnoticed even though the cultural changes their offices have spearheaded could serve as models for other offices across the country. To date, little has been written that offers real guidance to district attorneys and their staffs to help them shape a new culture within their offices dedicated to race-­conscious practices and even-­handed approaches. And even less has been written to educate a broader audience—­students, readers, researchers, and the general public—­about the importance of a race-­sensitive, community-­based prosecution function in making real change in the criminal justice system and moving toward real justice. Progressive Prosecution: Race and Reform in Criminal Justice offers both. It is a curated collection of chapters written by criminal justice experts and practicing district attorneys focused on those components of prosecution policy and practice that deserve scrutiny and demand radical rethinking. For the necessary reforms to take place on a broad scale, it is essential that incumbent DAs, in addition to those who have run and won on a progressive platform, embrace change. Transparency, accountability, and data-­driven decision-­making must be coupled with increased racial education of prosecutorial staffs to make the necessary long-­standing criminal justice reforms.

A New Progressive Vision of Prosecution Progressive Prosecution: Race and Reform in Criminal Justice lays out an important new vision of prosecution: prosecutors must redefine the future of the criminal justice system. This vision is unapologetically ambitious. And the need is clear. When recent data reveals that one in two adults has had an immediate family member incarcerated, we glimpse the overwhelming scale of the mass incarceration machine.

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Introduction | 11

The generational effects, family disruption, and community destruction of that reality are just beginning to be understood. But the urgency of dismantling the current system and building a more just alternative has never been clearer. To begin the hard work of reform, DAs need to reimagine their roles. They must move away from the easy reactive role of responding to crimes with their well-­worn (and ineffective) set of tools. They must begin to envision a different destination for the American criminal legal system and develop a fresh set of approaches to move the country toward a more just end goal. District attorneys and their offices have both the power and potential to reorient the justice system. Nothing less than that is required to break the cycle of mass incarceration and to rebuild trust in our legal system. For all the variety of professionals who occupy the office of district attorney, the role has two key components: advocate and minister of justice. While prosecutors for several decades have honed the advocate’s role, they have regrettably allowed the minister of justice muscle to atrophy. But leadership in the service of creating a race-­sensitive and community-­oriented criminal legal system demands that they strengthen that justice muscle. And that starts at the top. Typically, chief district attorneys have set as a vision only those pragmatic things that will help them win an election or enable reelection. But as leaders of this new vision of justice, they will need to think bigger than their own immediate personal goals. To course-­correct in a system that has gone off track, district attorneys will need to breathe life into the minister of justice role. This means openly agreeing to reform principles, then doing the hard work of identifying specific, localized priorities in support of the reform vision. They must actively redress the harm that their decisions have caused in communities in their cities, counties, and states. What does that look like? At a minimum, prosecutors must engage new partners and change their relationships with existing partners. Their power to transform justice lies at the intersection of often competing views about, and experiences with, the criminal legal system. From that nodal position, district attorneys will need to focus on the ways that race can misshape perceptions of criminality, can influence discretionary calls, can affect how we conduct trials, and can induce a reliance on punitive responses. District attorneys will need to gather data to check themselves and their practiced responses to criminal behavior. They will

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need to train line staff to ask a different set of questions and to hold themselves accountable to a higher set of values than simply tallying convictions. Progressive Prosecution: Race and Reform in Criminal Justice provides guidance and offers a playbook for prosecutors to help them deepen their own understandings of race and to develop and strengthen ties with those communities most affected by the justice system. It also offers the general public a clear and compelling case for adopting this new vision so that citizens can hold prosecutors accountable for both a fairer experience of justice and safer communities.

The Contributions Chapter 1: A Progressive Vision: Leading the District Attorney’s Office This chapter situates the book’s thesis by urging prosecutors to embrace the leadership challenge of defining a better criminal justice system. Professor Anthony Thompson, who has written extensively about leadership, race, criminal justice, and community prosecution, urges chief prosecutors to create a new imperative for themselves and their offices. He explains that prosecutors must actively work to reorient the system by reducing bias, curbing punitive excesses, and maintaining safety for all. Chief prosecutors can do this only if they develop and articulate a shared vision of what the criminal justice system should look like. The process of verbalizing the components of a different justice system—­ being clear and specific enough for others to visualize it—­is the first step toward effecting meaningful change. Thompson then sets the leadership task for the chief district attorney: he, she, or they must lead from the intersections of interests, ideas, and points of view. Thompson calls this “intersectional leadership” and walks the reader through the practical steps of leading in this way. Today, prosecutors must grapple with complex issues that are rarely straightforward or predictable. Intersectional leadership enables leaders to draw on the varied approaches that emerge from exploring issues from multiple perspectives as they look to do justice. Such a leadership task is admittedly no small undertaking, but, as Thompson makes plain, turning back to “justice-­as-­usual” is simply not an option.

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Introduction | 13

Chapter 2: 2020 Vision and the Five Pillars of Criminal Justice Reform In this chapter, Dan Satterberg, the King County Prosecuting Attorney in Seattle, boldly asserts that criminal justice reform is the civil rights issue of our time. The extraordinary events of 2020 brought new urgency to the reform mission and sharpened the focus of what prosecutors need to do to reverse mass incarceration and work for change. To facilitate that reform work, Satterberg offers a blueprint that he calls the “five pillars of criminal justice reform.” He walks the reader through the scope and horizon of the work that prosecutors must undertake and lead as they look to interrupt our reflex to incarcerate and punish. He argues that it is not enough to deflect individuals from formal processing. Prosecutors must do more. They must lead the effort to envision a better response to crime by providing a viable alternative: envisioning, funding, and building the “instead.” Satterberg draws on insights gleaned from more than 35 years as a career prosecutor. With refreshing candor, he acknowledges that the criminal justice system touches more individuals and families than ever before, including his own family. He tells the story of his younger sister’s struggle with substance abuse, offering it “not because my family is special” but because “it is every family’s story in twenty-­first-­century America.” That personal connection and desire to wield the power of the prosecutor in ways that enable justice “for all” grounds his approach. In the end, the chapter offers categorical guidance on how local prosecutors can do justice: preserving public safety but with a smaller punitive footprint.

Chapter 3: Transforming the Culture: Internal and External Challenges to a New Vision of Prosecution Professor Angela J. Davis tells the ongoing story of the progressive prosecution reform movement. Since 2015, more than two dozen self-­ proclaimed progressive prosecutors have challenged and defeated incumbent DAs. Davis, who has authored leading books on the role of the prosecutor and has served as a consultant to progressive prosecutors, traces the recent history of the progressive prosecution movement,

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highlighting the issues that these prosecutors have begun to address in an effort to make the system fairer. But against that hopeful backdrop, Davis documents the extreme difficulties these prosecutors encounter as they work to shift the culture away from one that feeds a mass incarceration model to one that is more race-­conscious and less punitive. She offers a gritty account of the real-­world challenges in changing the mind-­set of traditional prosecutors and navigating the often-­competing pulls and priorities in maintaining relationships with law enforcement and community groups. The chapter also offers examples of the special race-­and gender-­based attacks that Black women district attorneys have faced, making the reform work all the more challenging and painful. The examples do not simply demonstrate the weight of the reform undertaking. Those examples also unearth hard-­learned lessons about what it takes to transform the internal culture and the external environment to enable reforms to gain traction.

Chapter 4: Rethinking How Prosecutors Deal with Race and Implicit Bias As we take steps to reform a system that is characterized by—­and diminished by—­chronic racial disparities, there is a natural human impulse to blame. Indeed, it is quite easy to point fingers and say that racist prosecutors have caused the racialized outcomes we see. There is truth in the statement that some elected DAs have pandered to racialized fears and have sought and maintained control by driving those views. But the data suggests that more is at play. Even well-­intentioned DAs have seen racial disparities in their systems. So, the problem is not easily dismissed as the fault of express racism. In his contribution, William C. Snowden, the director of the Vera Institute of Justice New Orleans, not only uncovers the effects of implicit racism at each stage of prosecution; he also offers practical steps that prosecutors can take to address it—­the ways that individual prosecutors can surface their own bias; steps that offices can take to mute racial cues in decision-­making; and processes to engage in oversight to check for biased decision-­making. Snowden makes clear that starting with a definition of “racism” is key, declaring that “how we define racism also determines how we battle it.”

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Introduction | 15

Chapter 5: There Are Children Here: Reconceiving Justice for Adolescent Offenders One of the areas where discretion has led to intolerable racial disparities is the treatment of youth of color caught in the justice system. Black youth are disproportionately charged, prosecuted in adult criminal court, and sentenced either to lengthy prison terms or to death. Meaningful reform will occur only if prosecutors examine the processes through which we deny Black youthful offenders the privilege of innocence that their age would otherwise afford. Professor Kim Taylor-­ Thompson, whose work focuses on race, criminal justice, and youth justice, was a member of the MacArthur Foundation Research Network on Law & Neuroscience, serving on the Adolescent Development Working Group. She begins her contribution with a case study demonstrating that justice mistakes are rarely fixed after the fact. Instead, she urges prosecutors to exercise their power to craft a better trajectory for young people in the justice system from the start. Brain study and behavioral science have begun to change the justice system’s approach to youthful offending, but prosecutors too often fail to extend the benefits of the new scientific analysis to young Black offenders. Taylor-­Thompson offers guidance to prosecutors to enable them to recognize the child in the offender and to see the ways that they often misread the reasons for the child’s criminal justice engagement. The chapter also recommends a developmental approach to be applied even in serious cases, which necessitates a fundamental rethinking of accomplice liability, conspiracy, felony murder, and juvenile confessions.

Chapter 6: Prosecutors’ Offices as Data-­Driven Organizations: Improving Effectiveness and Fairness As prosecutors come under greater scrutiny for their policies and decisions, there are growing calls for both accountability and transparency. This chapter is written by Don Stemen, who formerly served as the Director of Research on Sentencing and Corrections at the Vera Institute of Justice and focuses on prosecutorial decision-­making. His contribution makes the case that prosecutors’ offices must collect and analyze

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16 | Kim Taylor-­T hompson and Anthony C. Thompson

data to guide their decisions and make data public to enable citizens to assess performance. Data can measure the overall impact of prosecutors’ work and identify policies or practices that need to be changed. Data about race and ethnicity can be used to evaluate prosecutorial programs and to determine which need to be expanded and which need to be abandoned. The chapter provides an overview of the reasons why prosecutors should collect and use data and the obstacles that exist to doing so. It then provides practical examples of how several prosecutors’ offices are currently using data to reform the experience of justice.

Chapter 7: The Crucible of Progressive Prosecution: Notes from the Field In the book’s deeply moving last chapter, Kim Foxx, the Cook County State’s Attorney, shares observations, approaches, and the unique challenges that she has faced as a Black woman chief prosecutor. Foxx is one of the first prosecutors in the country elected on a progressive platform and won reelection for a second term. Foxx discusses why Chicago—­a city with the most police per capita—­suffers from so much violence and why she has committed to reversing decades of short-­sighted, racialized criminal justice policy. Foxx makes a powerful case for reform and the role that chief prosecutors can and must play in dismantling systemic racism in the exercise of justice in this country. She provides a road map of reforms, which is not based on policy promises but rather on a solid track record of change. Since she took office, incarceration rates fell by 19 percent, and cases involving violent crime dropped by 8 percent. Foxx also instituted bail reforms in her office, which resulted in a reduction of people who are incarcerated pending trial. Despite these demonstrable successes, Foxx has consistently endured political condemnation, racist and sexist attacks, and death threats as she has looked to change the direction of criminal justice prosecution in her county. She poignantly describes these events, as well as the lessons she has learned, and then offers guidance about making racially just decisions to protect communities and ensure safety. In the end, the chapter is part cautionary parable and part inspirational narrative to help readers understand what it takes to assume full personal responsibility for driving meaningful justice reform.

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Introduction | 17

Notes

1 Ryan Gabrielson, Eric Sagara, and Ryann Grochowski Jones, Deadly Force in Black and White, Pro Publica, Oct. 10, 2014, www.propublica.org. 2 Black Americans Killed by Police Twice as Likely to be Unarmed as White people, The Guardian, June 1, 2015, www.theguardian.com. 3 Shielded from Justice: Police Brutality & Accountability in the U.S., Human Rights Watch (June 1998), and Shielded from Justice: Overview, Human Rights Watch, www.hrw.org. 4 Nick Corasaniti and Katie Glueck, Protests in Minnesota Renew Scrutiny of Klobuchar’s Record as Prosecutor, N.Y. Times, May 30, 2020, www.nytimes.com. 5 Joey Jackson and Diana Forence, What Prosecutors Can Learn from the Amy Cooper Case, CNN Opinion, July 7, 2020, www.cnn.com. 6 Littler Mendelson, Stay on Top of “Stay At Home”—­A List of Statewide Orders, ASAP, May 20, 2020, Littler Mendelson P.C. 7 Andy Mannix, Minneapolis Police Cite ‘Fluid’ Situation for Troubling Misinformation Released after George Floyd Death, Star Tribune, June 3, 2020, www. startribune.com. 8 Jess Bravin, Breaking with Tradition, Some Judges Speak Out on Racial Injustices, Wall Street Journal, June 13, 2020, www.wsj.com. 9 For example, the various public defender offices in New York issued a joint statement: Joint NYC Defender Statement on NYPD Brutality | The Bronx Defenders; the Federal Defenders issued a joint statement, Joint Statement From Federal Defenders on the Killing of George Floyd | Defender Services Office—­Training Division (fd.org); and associations such as the National Association of Criminal Defense Lawyers spoke for all of their members in condemning the racialized violence, NACDL—­News Release ~ 05/31/2020. 10 A few progressive prosecutors issued timely statements. Among them were State’s Attorney Kim Foxx on Twitter: “My statement on George Floyd and the toxic poison of racism,” https://t.co/1QH6RnXftU.; Twitter, Larry Krasner, District Attorney Krasner Statement on Murder of George Floyd, Police Accountability | by Philadelphia DAO | The Justice Wire | Medium. The American Association of Prosecuting Attorneys issued a belated statement more than two months after the killing, American Association of Prosecuting Attorneys, APA’s Statement on the Killing of George Floyd, June 1, 2020, apainc.org. 11 Vaidya Gullapalli, Spotlight: In A Study of Cops Facebook Accounts, 1 in 5 Had Racist, Violent Content, The Appeal, June 3, 2019, https://theappeal.org. 12 Brentin Mock, Where Inmates Are Getting Bailed Out in the Coronavirus Crisis, Bloomberg CityLab, Mar. 21, 2020, www.bloomberg.com. 13 George Coppolo, States That Elect Their Chief Prosecutors, OLR Research Report, Feb. 24, 2003, www.cga.ct.gov.

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1

A Progressive Vision Leading the District Attorney’s Office Anthony C. Thompson

Seismic events have shaken the very foundations of the criminal justice system. The murders of George Floyd, Breonna Taylor, and Ahmaud Arbery brought Americans out of their homes and into the streets demanding change. It was remarkable that the protesters were not only people of color; they included a huge cross-­section of the public in this country and across the planet. From large urban centers to small towns, America witnessed unprecedented protests and calls for reform. This time, the demands for change did not track familiar paths but instead called for a radical rethinking of our entire criminal justice system. The public insisted that true justice reform meant addressing the impact of structural racism, the overreliance on law enforcement, and the differential experience of justice based on race and wealth. In other words, the public made clear that it expected nothing less than a genuine reimagining of the American system of justice, its policies, and its operations. Not so long ago, that expectation might have seemed little more than wishful thinking. Now it could be within reach. The public awakening and uprisings helped to accelerate true justice reform. But the movement gained traction with the help of an unexpected force: the COVID-­19 pandemic. Too easily in the past, criminal justice actors had sidestepped calls for reform, insisting that they simply could not stop what they were doing to engage in a fundamental rethinking of practices and policies given the relentless press of business. But the pandemic forced the entire world to stop. So, the well-­worn excuses lost their persuasive power. Instead, a new sense of urgency has taken hold: all who care about justice owe it to our19

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20 | Anthony C. Thompson

selves, those protesters, and future generations to take this time to get it right. America simply cannot return to justice as usual. While most of the 2020 protests centered on police interactions with communities of color, the larger criminal justice system also came under scrutiny and indictment. Specifically, the failure of prosecutors to oversee the police surfaced as a basic flaw in the justice system. Indeed, presidential candidates who refused to prosecute police for misconduct had their political aspirations dashed as a consequence of those choices.1 The catastrophic failure of the criminal justice system to discipline police officers and to hold them accountable has resulted in a deep-­seated lack of confidence in the system’s integrity. Too many citizens across the country perceive the criminal justice system as fundamentally unsound because it has consistently failed to protect communities from the lawless behavior of actors whose job it is to serve and protect us. The 2020 protesters angrily turned to prosecutors and demanded that they take responsibility both for their past failures and for leading structural transformation of the justice experience going forward. Of course, the American criminal justice system did not reach this boiling point overnight. In a dangerously misdirected effort to ensure the safety of citizens and communities, this country embarked on a journey of mass incarceration that has proved unsustainable and, even worse, ineffective. In 1972, the United States incarcerated only two hundred thousand of its citizens. Today, that number has exploded to 2.2 million. Although the United States leads the world in its rate of imprisonment, that policy choice has not made us safer.2 As important, the mass incarceration model has disproportionately affected poor people and people of color, derailing countless individuals, families, and communities.3 Prosecutors played a critical role in building this system, but they now have the potential—­and obligation—­to reimagine it. They must dare to redirect the system because there can be no turning back. The concept and practice of “progressive prosecution”—­the main theme throughout this book and its individual chapters—­have come under attack by the political right. But competing with those critiques has been a growing number of calls from the left urging more radical change to the criminal legal system. Years of racial disparities, favoritism of wealthy defendants over poor defendants, and the continued proliferation of mass incarceration have led some to insist on abolishing the

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A Progressive Vision | 21

criminal legal system as we know it. Calls to “defund the police” have prompted more comprehensive conversations at the local and national levels about the role of policing and what it takes to keep communities safe. Similarly, calls to abolish the system are becoming a catalyst for broader discussions of the role of the criminal legal system, particularly in communities of color. While these conversations are both timely and necessary, they are, by definition, long-­term projects that will not result in immediate changes. And while those conversations are beginning, it is incumbent on current prosecutors, researchers, and advocates to address the existing racial injustices that are affecting individuals and communities on a daily basis. Quite simply, we cannot let the perfect be the enemy of the good or, in this case, the necessary. What is necessary is a prerequisite: embracing a progressive, race-­ alert vision. Some practitioners will undoubtedly balk at the concept of “vision” as, at worst, a meaningless trope or, at best, a term that belongs in the private sector rather than the justice sector. But that sort of limited thinking is precisely what has enabled the haphazard decision-­ making that led to mass incarceration and uneven applications of justice. Dismantling the system of mass incarceration will take more than individual prosecutors applying the brakes in particular cases. Redirecting the justice system will require a transformational vision that makes race a focal point in its operations and policies. This means using a race-­ alert lens in all prosecutorial decisions, including the basic choices of whether to engage the system at all and to what end. A progressive, race-­alert vision will require that prosecutors assess where and how they spend their time. Progressive thinking around prosecution means being less beholden to the wealthy and organized and more accountable to those marginalized communities that they also serve but that often lack voice within our system. Right now, prosecutors tend to have strong relationships with monied interests within the community including businesses, property owners, and organized donors. These connections will remain important because no section of the community should be ignored. But prosecutors cannot continue to prioritize these relationships over other, less influential ones. Instead, prosecutors must seek out and forge bonds with marginalized communities that do not possess either the wealth or the political heft to wield influence in traditional ways. Progressive prosecutors must recognize

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22 | Anthony C. Thompson

that categories such as “victim,” “witness,” and “accused” are rarely fixed and are more often interchangeable. Given that fluidity, prosecutors will need to find ways to engage with all members of their communities—­ even those who have been accused of crimes, whether major or petty. To make this vision transformational, prosecutors will need to lead in new ways. By listening more and allowing communities to articulate their concerns, prosecutors might develop solutions collaboratively with those who have a better chance of keeping communities safe. People most affected by the justice system often have a clearer sense of what keeps their neighborhoods safe and what does not. Rather than developing a view and then seeking buy-­in, prosecutors should look to co-­ create solutions with justice-­affected communities. Listening is one key part of the process. Transparency is its partner. Chief district attorneys will need to think more carefully about how communications happen and what means of communication are used. In some instances, this will mean working with communication firms to fully utilize conventional media as well as social media and nontraditional outlets. This also means attending community events where the prosecutor is not the featured speaker but is simply one voice in the community. Perhaps most important, given the nature of the protests in the aftermath of George Floyd’s death, prosecutors will need to review and revise their relationships with police departments and police unions. Because of law enforcement’s investigatory function, there needs to be a healthy working relationship between the department and the prosecutor’s office. But too often that association has become so close that it threatens the integrity of the exercise of discretion, particularly with regard to officer-­involved violence. The familiarity of these relationships often leads to a prosecutor’s inability to judge the quality of the information provided by police agencies as well as a discomfort in charging law enforcement personnel when necessary. Prosecutors’ offices need to establish protocols and practices that maintain sufficient distance that enables them to assess and evaluate officer conduct and veracity. Finally, this new vision of the prosecutor’s office will have to reimagine everything from internal leadership to training. The information provided at orientation and during in-­service training, as well as the criteria considered relevant for promotion, will all have to be included in this new vision of how the office operates. And the elected prosecu-

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A Progressive Vision | 23

tor will need to decide how she wants the office to be viewed in the community and then work to make that a reality. Of course, this leads inexorably to questions of leadership and engagement at the intersection of ideas, perspectives, and experiences. This chapter offers a framework for developing a progressive vision and then outlines ideas for leading the prosecutor’s office from a position at the intersection of perspectives, experiences, and stakeholders. In the twenty-­ first century, the prosecutor—­more than any other actor in the criminal justice system—­must be able to take into account a range of voices in making justice decisions, else she runs the risk of tacking too closely to one perspective and missing the wide effects of practices and policies. The progressive prosecutor must also commit to learning the interplay of race, gender, and class in the operations of the criminal legal system.

Breaking with the Past For too long, the goal in prosecution was to protect the community through the deployment of one principal tool: prosecuting offenders to the maximum extent. Fueling that approach was the perception that the prosecutor’s client in any given case was the victim. That view was buttressed by the assumption that crime victims only wanted retribution for the harm they suffered and expected that to be delivered through harsh punishment. But both sets of beliefs were misguided. The prosecutor’s actual client is not the individual victim of a crime. It is justice. And justice demands more than a high conviction rate. As it turns out, victims of crime want more than a conviction too. Research shows that victims generally want a justice intervention that will answer their questions: Why me? Why did this happen? And they ultimately want a justice outcome that reduces the harm now and prevents harm in the future.4 Because mass incarceration has failed to address those questions and redress those harms, it cannot be anything more than an option of last resort. Instead, issues of racial fairness, equity, and community engagement will need to become the drivers of safety and justice. Making the shift toward a distinctly different way of envisioning the prosecutor’s role will place a host of new demands on chief prosecutors. To tackle those challenges, chief prosecutors will need to adopt a form of leadership that recognizes the power of a shared destination and the

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24 | Anthony C. Thompson

importance of leading from the intersections of ideas and perspectives. Let’s break that down a bit. Chief prosecutors will need to make moving the office toward a higher purpose an explicit priority. That purpose must be the establishment of a racially equitable experience of justice. Then, they will need to engage their staff, local law enforcement, and the communities they serve in an ongoing dialogue about how they can co-­create this fairer, more inclusive form of justice. Transformation demands a vision, new partnerships, and open conversation about the felt experience of justice, which is not something that routinely occurs in most cities and counties across the country. In fact, today, a visible disjunction exists between the ways that prosecutors typically lead versus the pressing need to transform our criminal legal system. Historically, prosecutors have not needed to define their vision of practice. This may explain their reticence to take a strong stand on race, as any effort to address issues of race seems to draw fire internally and externally. Prosecutors have rarely needed to explain the office’s role in the broader criminal justice landscape. Typically, the only time these larger issues might have been addressed was in the context of an election. But even in contested elections, the standard arguments involved gauging how tough on crime the contenders would be. Prosecutors have successfully run for office on a law-­and-­order platform that promised both to lock up the bad guys and to faithfully enforce the criminal laws. Consequently, success has been measured in numbers of cases processed, the volume of convictions, and lengthy prison sentences. While advocating for longer sentencing, these prosecutor candidates never had to think about what happens to incarcerated individuals and never invited accountability for the harm that occurs within prisons. As a result, prosecutors have largely ignored the role that prisons play in increasing cycles of violence rather than reducing them.5 This is so because they could. To be clear: this micro focus has worked for a long time, enabling chief prosecutors to put their heads down to navigate and manage their workloads. They could even gain reelection without paying much attention to the broader issues that ultimately shape, and too often distort, the experience of justice. That has begun to shift in recent years and has come to a head since the untimely death of George Floyd. But even before that tragedy, the role of the prosecutor, the function of the office, and the relationship among prosecutors,

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A Progressive Vision | 25

communities, and law enforcement had begun to come under intense examination and criticism.6 Political leaders of all political stripes had raised questions about the wisdom and efficacy of a model that fueled mass incarceration. At the federal level—­even under President Donald Trump’s administration—­there was a move toward criminal justice reform. The First Step Act, while modest, demonstrated that, even in the midst of extreme partisan rancor, support existed for reform.7 Progress at the federal level is symbolically important because it sets a national tone, but it has relatively little impact because criminal justice in this country is inescapably local. The overwhelming majority of criminal cases are brought by state prosecutors. However, there, too, we have seen signs of change—­and an appetite for a shift from convention. A wave of progressive challengers has swept in important changes. These district attorneys have reached out to communities long ignored by conventional offices, and they have promised more comprehensive and racially conscious objectives. Coinciding with those campaign efforts—­and complementing their successful bids—­has been a broader national focus on the need to unravel the structures that have led to mass incarceration in America. The election of this growing number of prosecutors bearing the mantle of “progressive prosecution” has offered further evidence of the modification in the national approach to prosecuting crimes. More important, their elections have reinforced the notion that electorates expect and demand more from their justice systems. Meaningful criminal justice reform, however, requires the involvement not only of a few self-­proclaimed progressive prosecutors but also of a much wider swath of everyday line prosecutors. Interestingly, this is not the first time that prosecutors have flirted with reinvention by recognizing the need for deeper engagement with the communities they serve. In the 1990s, a community justice movement began to take root in the criminal justice system. Police departments, courts, and, to a lesser extent at the time, public defenders’ offices began to place greater emphasis on community justice initiatives.8 (The community policing effort is likely most familiar—­it emphasized community collaboration to anticipate and prevent crime rather than simply responding to incidents of crime.) Largely in response to the efforts of those institutional players, prosecutors attempted to introduce community components into their offices.9 The community prosecution move-

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ment grew out of the proposition that prosecution could be less reactive if offices participated in the communities in which they operated. Community prosecution increased interaction among prosecutors, schools, and community groups. This effort also led to closer collaborations with housing enforcement units, crime prevention organizations, and a wide range of nonprofit organizations looking to identify the root causes of crime in communities. The problem was that community prosecution was more a set of concepts than a suite of cohesive operational practices. Individuals in prosecutors’ offices often did not agree on its overall goals. Some elected DAs saw community prosecution as a method to raise the profile of the office. For these offices, community prosecution became a public relations vehicle that could raise the office’s visibility and thereby encourage witnesses and victims to come forward to testify in cases. Other prosecutors saw community prosecution as a step toward a more cooperative and less confrontational relationship with the communities they served. Still others relegated community prosecution to a separate unit within the office rather than recognizing it as an opportunity to transform the fundamental approach to prosecution. But my research and observations of that fledgling and somewhat haphazard effort in the 1990s have led me to conclude that that earlier movement may have planted the seeds of the new progressive vision for the twenty-­first century. The ideas animating the community prosecution movement of the late twentieth century were a desire to decentralize authority and accountability as well as a realization that building more constructive relationships with the communities they served might enable prosecutors to anticipate and address community issues more effectively. Of course, a number of factors differ in today’s movement. The progressive movement of the twenty-­first century is aided by social media, a faster news cycle, and increased access to information generally. All of these mechanisms have helped to feed information to the public about the role of prosecutors and to change the citizenry’s view of what actions prosecutors should take in the pursuit of justice. In addition, many prosecutors themselves are beginning to rethink their own role within the criminal justice system. Better information about mental illness, addiction, relapse, and recovery, as well as the roles of poverty, homelessness, and adult illiteracy, has begun to create an epiphany for

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A Progressive Vision | 27

many elected prosecutors. As important, more prosecutors are beginning to acknowledge openly the role that they have played in creating and exacerbating the current mass incarceration problem. Other chief prosecutors, rather than ignoring any interaction on the issue, are working to grapple with thorny issues such as the role of the prosecutor in race relations. In California, San Joaquin County District Attorney Tory Verber Salazer, while entangled in her own internal racial tensions after lawyers in her office mocked the Black Lives Matters movement,10 delivered a public apology for “racial inequities in the past implementation of the criminal justice system.”11 Not all chief prosecutors are as willing to acknowledge the role of racial bias in the criminal justice system, but those who have are paving the way for a different relationship with the communities of color in their jurisdictions. Prosecutors in Brooklyn, Chicago, San Francisco, Los Angeles, Philadelphia, Orlando, Boston, and a growing number of other cities across the country are implementing clear plans to increase their interactions and engagement with marginalized communities as a step toward dismantling the inequities of the current criminal legal system in this country.12

Envisioning Racial Justice and Equity in Prosecution To achieve racial justice and equity in prosecution, prosecutors must articulate a vision of leadership for their office that explicitly and specifically focuses a lens on race. It means that elected prosecutors will need to examine the ways that race influences discretionary decision-­making in their offices, beginning with investigations and encompassing charging, bail requests, diversion, sentencing recommendations, and the use of adult court for juvenile offenders. Moreover, offices must begin to utilize data to understand racial disparities and to identify the points in the system where those disparities are most pronounced. Progressive offices should publish this data and make it available for public review. In addition, offices should develop training—­in collaboration with other organizations, where necessary—­that focuses on race and race-­ conscious decision-­making, making a point to instruct all staff about the history of race in communities within their jurisdictions. Complementing that effort, offices will need to scrutinize police body-­cam footage carefully, depose witnesses of official misconduct, and take seriously

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28 | Anthony C. Thompson

allegations of racism on the part of law enforcement. Internally, offices will need to track race-­based misconduct. Mistrials based on successful race-­based jury challenges would be monitored, and offices would mandate training for any lawyers engaging in such conduct. Finally, there must be zero tolerance for racist conduct within the office. To enable this change, chief district attorneys across the country need to agree to a larger reform vision for the system of justice. An important start is recognizing that the fear-­mongering, racially divisive strategies that have characterized the criminal justice system since the 1980s can no longer be sustained. That approach to prosecution has suggested, for decades, that locking up individuals for minor crimes would make communities safer. Over time, we have learned that separating families and destabilizing communities have done the opposite. In addition, such actions have created a racial distrust of law enforcement in general and of prosecutors’ offices in particular that has dampened the effectiveness of the criminal legal system as a whole.13 So, as a group, DAs from across the country need to set out the major components of a vision articulating the features of a fair justice system—­what it should look like and deliver. A number of reform-­minded prosecutors have already jump-­started that effort. Some prosecutors explicitly campaigned on platforms committed to reducing mass incarceration as a means of breaking sharply with the past. Others have arrived at this decision over time. Some prosecutors decided to stop prosecuting misdemeanor drug offenses, viewing this conduct as a manifestation of a deeper public health challenge rather than as a criminal justice matter.14 Still others have refused to prosecute cases brought by officers with a history of dishonesty, bias, or unreliability.15 While some offices have focused their reforms principally on racial disparities, others have targeted economic inequality. Kim Foxx in Cook County, Illinois, for example (see chapter 7), has raised the threshold for felony charges of retail theft to $1,000 and increased the use of diversion programs as an alternative to incarceration by 25 percent.16 At a minimum, the progressive vision must include rethinking prosecutors’ relationship with law enforcement. In the wake of the protests that gripped the nation in 2020, that mandate is crystal clear. In fact, a radical rethinking of every component of the police–­prosecutor rela-

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A Progressive Vision | 29

tionship is long overdue. Historically, a police union endorsement has been seen as a prerequisite to any successful bid for chief prosecutor. This often led to a cozy affiliation among the police, police unions, and elected prosecutors. As a result of these relationships, prosecutors have been reluctant to question the conduct of police officers, especially when Black citizens are the focus of the police, or to direct-­file charges against police engaged in violent misconduct. In some instances, prosecutors have hidden behind a grand jury’s refusal to indict, ignoring the fact that prosecutors have complete sway in securing an indictment in every case. Also, prosecutors too often have simply been unwilling to subject the conduct of police to the same level of investigation and scrutiny that they apply to cases involving any other defendant. Fortunately, progressive prosecutors are changing this dynamic. For example, in Contra Costa County, California, the first Black person and first woman to be elected prosecutor, Diana Becton, has decided as a matter of office policy that she will now [require] that prosecutors review all available body camera footage and seek supervisor approval before filing a charge of resisting or attacking police, a policy shift that came days after the office dropped a controversial resisting-­arrest case following the publication of body camera footage.17

Chesa Boudin, the San Francisco DA, also has called for a fresh look at police oversight on the part of prosecutors. In his New York Times guest opinion piece, Boudin called for a policy refusing to accept electoral support from police unions: As the police killings of Mr. Floyd, Breonna Taylor and Rayshard Brooks have demonstrated, the police typically don’t answer to the federal government or state legislatures; they are accountable to local prosecutors, who make decisions about if, when and how to charge officers. Demanding that prosecutors charge police officers who kill without justification is a crucial step, but it is only the beginning. Local prosecutors must use the power and discretion afforded them to carry out sweeping reforms that will protect the public—­especially Black communities—­from police violence. Our system’s integrity depends on it.18

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Boudin went on to concede the difficulty of holding police officers accountable if prosecutors feel indebted to them. So, along with three other elected district attorneys, Boudin pledged never to accept contributions from law enforcement unions. He even went a step further, urging the California State Bar Association and the American Bar Association to issue ethics opinions prohibiting the practice of prosecutors taking money or support directly from police unions as a way to “cure this conflict of interest.”19 His bold decision is, of course, important. But change agents sprinkled across the country will not be enough to change the direction of justice in this country. Unless there is a broad-­ based vision for change, those who are wed to the current system will be able to resist reforms. Indeed, we are already witnessing conservative strategists attempting to isolate and demonize “reform prosecutors” by asserting that they represent a dangerous fringe. None other than United States Attorney General William Barr, the nation’s chief prosecutor at the time, alleged—­ without evidence—­that the progressive changes that these new prosecutors promised constituted a threat to public safety.20 Law enforcement unions have attacked these prosecutors for refusing to prosecute classes of crimes, such as marijuana possession.21 Prosecutorial discretion has rarely been criticized and, instead, has been encouraged. In fact, the broad discretion prosecutors routinely exercise has been subject to judicial review in very few circumstances. Suddenly, though, when used to reduce mass incarceration and racial disparities, discretion has become controversial. Philadelphia District Attorney Larry Krasner’s experience offers an example. William M. McSwain, the US Attorney for the Eastern District of Pennsylvania and a Trump appointee, launched a crusade against Krasner, hammering him over his progressive agenda. McSwain stridently accused Krasner of causing a “public safety crisis”22 after Krasner had pushed for greater police accountability, reductions in the use of cash bail, and greater use of diversion and probation.23 Despite the fear-­mongering, Krasner’s pledge to curb mass incarceration resulted in a 30 percent decrease in the jail population and a 46 percent decrease in the average length of sentence without an increase in crime.24 To withstand these individualized attacks, chief DAs individually and collectively need to reimagine what the criminal justice system could look like when thinking about racial justice. The process of verbalizing

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A Progressive Vision | 31

the components of a different justice system—­being clear and specific enough for others to visualize it—­is a critical foundational step toward effecting meaningful change. In order to develop this vision, chief prosecutors should begin by envisioning a clear picture of a desired future state of the office and being able to explain why that future state matters. Let’s break that down. In developing a vision for the office, it is important to be ambitious. Chief prosecutors should not limit themselves to what seems possible; instead they should push their thinking toward the aspirational: What does a best-­case scenario look like? In fleshing out the details of that vision, chief prosecutors and their leadership teams should focus attention on what they want, not want they do not want. This is the difference between choosing to be antiracist and simply stating that the office opposes racism. Articulating that destination means asking What are the dimensions of being a race-­alert office? and Where would we like the office to be ideally? Chief prosecutors and the leadership teams must be clear and specific enough about the answers to those questions so that they would know it if they achieved it. Finally, this vision must have some stretch to it. It should by definition not be an easy reach for the office. Any office that wants to establish a racial equity and justice vision should think about what that vision entails within their jurisdiction. This is not about developing a one-­size-­fits-­all vision. Chief prosecutors and leadership teams will need to customize the vision and prioritize attention to those dimensions that are particularly salient in their office and in the jurisdictions that they serve. In many offices, this will mean developing values and policies informed by the stories of the divergent and racialized experiences of justice to begin to chart a new path. Becoming racially literate will also mean having candid conversations with staff of color in the office, as well as identifying Black and Latinx organizations in their jurisdiction to hear stakeholder concerns firsthand and to understand outside perceptions of the office and of the justice system as a whole. Against that backdrop, the office’s vision should address five key dimensions: (1) staff; (2) transparency of decision-­making; (3) relationships in and with the communities the office serves; (4) accountability; and (5) harm reduction. In looking across these dimensions, chief prosecutors and their teams should ask a series of hard questions to flesh out each area. I discuss each in turn below.

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Transforming the staff literally begins at the top of the office. The leadership suites of prosecutors’ offices are rarely diverse. It is simply not enough to release official statements expressing the importance of diversity, equity, and inclusion. The DA must walk the talk by selecting a diverse leadership team. Choosing leadership team members who bring a wide array of skills, expertise, and experiences communicates both internally and externally that a broad spectrum of viewpoints is respected and expected in the office. Setting expectations about the need for lawyers to step outside of their own personal worldview or cultural experiences is the first step in calibrating or recalibrating how the office will approach the work of prosecution. When looking at the entire staff, in addition to the breadth of diversity, one might ask about the skills, capabilities, and mind-­sets of staff needed to advance the new progressive vision of the office. The time frame should be limited: What do we need if we expect to achieve the principal components of this vision over the next three years? If we want a more diverse set of perspectives and life experiences in the legal staff, then what are the recruitment, hiring, training, and retention policies that we should develop and implement? How will we judge success? Are we communicating with law schools, law firms, and other places in the pipeline where we might hire lawyers at the entry level or laterally? How will we bring aboard these new lawyers? And what career development steps will we take to mentor them and promote those who have earned it? Of course, the office cannot wait for hiring practices to change the complexion and range of experiences among the legal staff. White lawyers need to understand the need to educate themselves about racism in the country and in the geography the office serves. The office needs to assign readings and sponsor trainings on the ways that race can influence decision-­making, sometimes unconsciously, in addition to the steps prosecutors must take to actively reduce the quick decisions that too often lead to disparities and differential treatment. A focus on implicit bias and cultural competency is key to changing the way prosecutors have made decisions to date. Any training also needs to expose white prosecutors to people of color as decision makers and as critical parts of any training program. This mandate also means the office should engage community members to lead components of in-­house training to help

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lawyers see beyond the confines of their own experiences and perspectives. White lawyers need to see the justice system from different vantage points rather than perceiving their personal views and experiences as the shared norm. If we take a deeper dive into the second dimension of the vision—­ transparency—­it is important to identify ways to help the office assess the openness and visibility of its decision-­making. In a system dominated by discretionary calls, discrimination is easy. The exercise of discretion remains the ultimate black box in the prosecutorial function. And that is the heart of the problem. One career prosecutor, John Chisholm, who has served as Milwaukee County District Attorney since 2007, made the decision to open that box to gain greater insights into how his office’s discretionary decisions were enabling mass incarceration. In Wisconsin, Blacks made up 6 percent of the population but 37 percent of the prison population. That data prompted Chisholm to ask how his office contributed to those disturbing numbers. To find answers, Chisholm opened the box, inviting independent researchers from the Vera Institute of Justice into his office and giving them free rein to observe his line prosecutors, to ask questions, and to document their practices. What he learned was that he needed to chart a new course. Chisholm launched a series of comprehensive reform policies in an effort to reorient the work of the district attorneys’ office. To enable transparency, chief prosecutors need to pose a series of questions. What steps do we need to take to ensure that our policies, practices, and exercises of discretion are visible internally and externally? Data-­driven decision-­making can better position an office to understand how race influences decision-­making and where disparities exist. Data can also help track the ways that the office uses diversion programs and selects those who can avoid the formal justice system and its associated consequences. So, if we intend to be more transparent as an office, what data-­collection and publication practices will be necessary to facilitate that? Third, as the office considers the relationships it intends to establish, nurture, and value, it will be important to recognize that a broad set of partners and perspectives can help guide the office in determining how to make communities safer. This means ensuring that the office reaches beyond those voices who might be loudest among constituents. How

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can we engage with communities most affected by the justice system but with the least amount of influence on the justice choices that are made in their name? Prosecutors’ offices easily develop relationships with police departments. But, far too frequently, the default is to engage with white police officers without engaging with Black and Brown officers, who often bring a different viewpoint of policing to their work. Organizations such as the National Organization of Black Law Enforcement, 100 Blacks in Law Enforcement Who Care,25 and Guardians of Justice embrace missions that emphasize a community-­based focus.26 They have organized as law enforcement professionals to be part of the solution rather than contributing to the fraught relations with communities of color. They see themselves as the conscience of law enforcement. Thus, partnering with local chapters of these and similar organizations, or even the national organizations themselves, could give the prosecutor’s office a leg up in ensuring equity in law enforcement. Fourth, the issue of accountability has become a policy imperative in any reform vision. How can the public hold the prosecutors’ office accountable for its choices, practices, and policies? Any office looking to adopt a reform vision will need to consider that the process of developing and sharing its vision may go a long way toward building accountability. The dimensions of the vision give the public a road map to examine the office’s practices and an opportunity to understand the office’s priorities. If the chief prosecutor promises action on these dimensions, the communities that the office serves can assess the office’s progress. Finally, a reform-­oriented vision will focus on issues of safety by using a harm reduction and restorative justice lens. What does it mean to reduce pain and suffering in a community? This dimension requires the prosecutor to think broadly about victim communities and to recognize that the role of victim and accused are not static. When an office begins to see the communities that it serves as including both victims and defendants, the question of harm reduction moves the focus from racking up convictions to one that is more restorative. Many offices have begun to adopt harm reduction practices in the way they approach drug offenses. The principles of harm reduction are perhaps most familiar in the context of drug usage. These principles

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recognize the value of meeting drug users where they are to limit and reduce the harm to themselves and their communities. What underlies this perspective is that many offenses are actually symptoms of public health and/or mental health issues. Viewed from this perspective, the justice system should not be the principal pathway to treatment. Yet we have chosen to use the criminal justice system as the place where we administer public health and mental health services—­the most expensive and least effective way to address such problems. A restorative framework encourages prosecutors to recognize the health issues in play and to work toward a public health response instead of a pure justice reaction. That frame came help the office begin to reorient its vision about prosecuting. Once the chief and the leadership team have engaged in future visioning—­that is, articulating where they want the office to be in three years—­t he next step is to do a realistic assessment of where the office currently sits across the same five dimensions. This portion of the work is less time-­consuming and less taxing. Here, the office is looking to assess the current realities confronting the office by gauging performance and in-­house practice along those dimensions. To do that, the chief prosecutor must speak with a range of individuals inside and outside the office to gain a realistic picture of how the office is operating currently. The next step involves identifying and studying the gaps between where the office would like to be given its current operations. What accounts for any gaps? What has the office done or not done that has created any variances? Identifying gaps helps to explain any misalignment between the office’s current reality versus the future destination and offers leadership a planning framework for change around which both team and office can coalesce. Policy, budget, and hiring goals can anchor to the vision that the office maps. That practice differs fundamentally from the common practice of using the budgeting process simply to request additional lawyers or investigators in response to episodic caseload changes or trends in specific crimes. So, for example, rather than providing for a few more prosecutors to address the opioid crisis, the budgeting process serves as an opportunity to link funds to the office’s intended new role with and on behalf of impacted communities to enhance safety.

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What drives the need for a visioning process is the recognition that the solutions of the past have been inadequate to the pressing task of eliminating racial disparities. Instead, issues of race tend to be chronic and persistent. Whenever offices have expressed a desire to keep racial disparities in check, those good intentions typically have not produced the desired results. Closer examination reveals a reason: every system is perfectly designed to produce the results that it is getting. If you want to change results, you must change the system. If racial disparities persist in investigations, charging decisions, and every other aspect of prosecution, then you must look critically at the operating dimensions of the office and work to dismantle the structures that have enabled these practices. The shared vision process gives the office a platform for launching that effort. Developing a new vision of prosecution may start at the top, but it cannot reside only in the upper levels of the office. Culture eats policy for breakfast. Meaningful reform will not occur unless the vision at the top cascades into the office, which is, of course, no small challenge. When I taught a prosecution clinic, my law students were assigned to work in two New York City prosecutors’ offices. The clinics provided a unique aperture into each office’s policies and practices. Given the high caseloads in metropolitan DAs’ offices, work incentives help to shape and reinforce culture. Both offices prided themselves on their professionalism and willingness to engage the system when cases merited prosecution and to cull those that did not. But in one office, a seemingly neutral practice undermined that vision. There, if an assistant DA wanted to dismiss a case, she was expected to write a memorandum explaining to her supervisor the reasons for that decision. If that same prosecutor wanted to obtain a plea to a lesser charge, no writing was required. The incentive structure implicitly communicated the value of getting the defendant to plead guilty to “something” in all cases regardless of the underlying merits. And it made the decision to forego prosecution burdensome particularly, when taking into consideration the press of business in a busy metropolitan office. The practice effectively dissuaded individual ADAs from dismissing weak or questionable cases. Myriad consequences flowed from that practice. In a system where plea-­bargain offers worsened with each successive contact with the criminal justice system, this practice often led to an accused receiving

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a low-­level conviction on a case that should have been dismissed. Instead, this guilty plea now counted as the individual’s “first bite at the apple.”27 It also resulted in a large number of young men of color developing criminal records for behavior that similarly situated white men did not.28 That was the culture of the office. A more recent example of this culture of charging occurred during New York City’s enforcement of social distancing regulations in 2020. Only one person out of Brooklyn’s first forty social distancing arrests was white.29 Of the 374 New York Police Department summons issued for violating social distancing prior to May 8, 2020,304 were issued to Black and Hispanic people.30 Perhaps as important, the practice taught young prosecutors that, notwithstanding their roles as ministers of justice, it was more efficient and important to obtain a conviction rather than exercising prosecutorial discretion to dismiss a case.31 The fair prosecution message at the top of the office stopped at the top of the office. Operationalizing a new vision in any office means ensuring that every function in that office is guided by that shared vision. So, starting at recruitment, the office ought to make clear that it is seeking lawyers who will embrace the vision. This means that the chief prosecutor must be intentional about the composition of those teams tasked with recruiting and hiring. Far too few offices approach Latinx or Black student organizations in law schools to create a pipeline of talent. Lawyers of color in prosecutors’ offices are often not tapped to recruit new lawyers. While chief prosecutors interested in adopting a more progressive vision recognize the need to weed out those prosecutors who lack significant cross-­cultural experiences and simply want to rack up convictions and lock up offenders, it is equally important to find and hire individuals with life experiences that can help inform the meaning of racially just prosecution. Orientation and training around issues of race will need to occur as well. Offices committed to a progressive vision will need to rethink everything from the new ADA’s first rotation assignment to the mentors and supervisors who serve as initial guides to the practice. Training curricula will require revision and augmentation. Right now, offices that conduct training tend to focus solely on trial practice and local criminal procedure. As a supplement to skills training, these offices typically introduce new ADAs to law enforcement personnel and acquaint them

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with victim services. Rarely are new hires encouraged to learn about the communities in which they work. They do not meet individuals in the faith community, advocacy community, or others who might play significant roles as partners in fashioning a more just system. In addition, new prosecutors often do not even hear from individuals from a different race or ethnic background that is different from themselves. There are, fortunately, some exceptions. Some prosecutors take their staff to state prisons to speak with incarcerated individuals.32 This interaction offers different insights into the experience of those individuals whom the office has prosecuted in the past, so that prosecutors understand more intimately the effects of sentencing recommendations. In the end, a progressive orientation means that new prosecutors must begin to change their relationships with the communities they serve from the start. Spending time in affected communities and bringing those voices into the formal training process can help prosecutors ask better questions: Why are we bringing this case? What will that accomplish? Are there other options that might resolve this harm? Vary the circumstances. The problems to solve may look different, and the path to real justice may actually begin to shift.

Modeling the Vision: Leading at the Intersections If racial equity and justice in prosecution is the destination, then how can chief DAs lead their offices toward that goal? By engaging in intersectional leadership.33 Intersectional leadership has five fundamental components. The intersectional leader (1) builds and nurtures a broad team; (2) learns from unexpected sources; (3) engages in genuine collaboration; (4) adopts a mind-­set that is suspicious of easy agreement; and (5) acts with integrity and moral courage. Let’s discuss each feature in turn. The first component of intersectional leadership expects the leader to develop and rely on a broad, diverse team. The team should bring traits, styles, and experiences that differ from those of the elected prosecutor. Too often, newly elected prosecutors will look to build a leadership team composed primarily of individuals who participated in the electoral campaign. Instead, the elected prosecutor should look to engage, recruit, and rely on individuals whose life experiences and perspectives contrast

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with—­and augment—­her own.34 It is tempting to surround oneself with an inner circle that does not question the leader’s motives or ideas. But if a team agrees on everything, then working together is pointless. Still, chief prosecutors may worry that building a team using members who may be critical of the leader will create tensions because the team will be more combative. That is, of course, correct. However, insularity leads to insufficient debate and self-­criticism. The chief prosecutor/leader’s role is not to create harmony and assent within the team but to strive to exercise more-­informed judgment. That means nurturing a team that can thrive within the space between robust debate and internal tension. All leaders believe they know the right ways to proceed, but doing the right thing seldom happens without the kind of complexity and nuance that flows from genuine team effort. In particular, the lack of racial, ethnic, and gender diversity on a prosecutorial leadership team can cause the leader to have misplaced confidence in an approach or decision before a full range of viewpoints has been explored. The pervasive lack of diversity at the top of most prosecutors’ offices means that thoughtful elected DAs will have to work hard to identify, recruit, and retain lawyers of color in leadership roles. The intersectional leader should create the discipline of asking questions to increase the intellectual rigor of the team. These questions include What perspectives are missing? and Where are our blind spots? The second feature of intersectional leadership is similar to the first, but it is also distinct. In the prosecutor role, the intersectional leader should recognize that learning often comes from unlikely sources. Too often, prosecutors’ offices isolate themselves from the communities they serve by focusing principally on what happens in the courthouse. That myopic view limits the learning that is critical to the work. King County Prosecuting Attorney Dan Satterberg, in Washington, devotes considerable amounts of his time with communities of color, immigrant communities, and organizations in and around Seattle, simply listening to (and hearing) their concerns and perspectives. Those interactions have helped to evolve his approach to the work by gaining deeper insights into the effects of his policies and practices in those affected communities. Reaching out to affinity groups (internally) and marginalized communities (externally) can lead to a reframing of both the problem and the solution.

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40 | Anthony C. Thompson

The unexpected learning source can even be the newest hire in the office. Traditionally, newer lawyers are expected to shadow a more senior attorney in the office, learning from the experienced lawyers how decisions are made on the ground. The message is clear: junior lawyers should emulate the more senior attorneys. In such schemes, newer members of the office will not be expected to offer their points of view, input, or thoughts about the office. But inviting the newer lawyers’ impressions often brings new ideas: new blood and “old hands” can bring about change if there is a recognition that learning is a two-­way street. Sitting at the opposing counsel’s table, a chief public defender, Francis Carter, who led the Public Defender Service of the District of Columbia, often told his incoming training classes of staff lawyers that they were his eyes and ears inside the courtroom and in client communities.35 Once an individual assumes the role of district attorney for an office, that position by design removes the leader from the rest of staff. Even if that leader ascended from within the ranks, the top position creates distance and makes it more difficult for the leader to see and hear what occurs on the ground. Some DA offices have used the physical space to exacerbate this separation: the “executive floor” is considered off-­limits to line prosecutors. But that division isolates the leadership team from perspectives that will be critical to moving forward. Opening lines of communications and creating pathways for staff to interact, the leadership fosters better communication between those designing office policy and those implementing it. Similarly, open communication facilitates leadership’s understanding of whether and how policies play out in day-­to-­day operations. Broad connectivity increases leaders’ access to information and exposure to vantage points from which their privilege and life experience might otherwise shield them. Embracing a culture of inclusion helps leaders check their intuitions and discern potential problems and opportunities in the effort to enhance the fairness of the justice system and the safety of communities. The third component of intersectional leadership encourages leaders to engage in genuine collaboration. This means being willing to subordinate their own interests in the service of a greater goal. Let me explain further. Lawyers and some business leaders tend to mislabel working in groups as “collaboration.” More often than not, what they are really engaged in is “teaming.” The group is working toward the same goal with

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the same command structure and shared resources. In collaborations, there is no single decision maker. In fact, collaborators operate as equal partners and may actually have competing interests. So, true collaboration is a far cry from teaming. It hurts—­in a good way. It means being willing to give up something meaningful to the leader—­such as individual recognition, resources, and control—­to achieve a larger objective. The intersectional leader is looking to operate as a nodal player sitting at the intersection of networks, communities, and ideas, not at the top of a decision-­making structure. The dynamics of criminal justice initiatives regularly involve a set of competing interests and stakeholders vying for position to push their view forward. The intersectional leader should look to leverage capabilities and positions of others to generate better results. And if that means giving another group credit, so be it. Too often, though, we encounter prosecutors who are loath to relinquish or even share their authority and power within the criminal justice system. Intersectional leadership means having the strength to sacrifice some personal or office benefit for the greater good. The fourth component of intersectional leadership asks the elected prosecutor to be wary of quick agreement. Leaders want to be perceived as being right. Speaking from experience, this may be especially true for lawyer leaders. While they often pay lip service to a desire for pushback, leaders, the moment opposition occurs, may be inclined to question the dissenter’s loyalty or commitment to the enterprise. In pursuing a new initiative or policy, leaders often want harmonious agreement among the entire leadership structure. But that insistence on consensus or harmony can lead to the creation of a leadership team that behaves more like an echo chamber than a source of robust discussion and debate. Indeed, if everyone is on the same page, that is precisely when the leader’s antennae should go up. The leader’s job is to make room for competing ideas, not to avoid them. Questioning consensus and taking the opposing side are some of the most effective ways to ensure that the leader is not missing something. But encouraging constructive confrontation is not about bringing in the voice of dissent so that the leader can simply overpower it. The intersectional leader needs to listen to the opposing viewpoint without caricature. By understanding the arguments fully and giving the voice

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of dissent the respect of hard questions, the intersectional leader might see flaws and opportunities that would otherwise have escaped notice. Frankly, leaders should invite the best arguments against a proposal as a matter of routine within their teams so that, if objections surface after a policy or practice is implemented, the leader is not encountering those concerns for the first time. Normalizing productive disagreement actually prepares the leader for the rough-­and-­tumble world into which the decision will be introduced. Finally, the intersectional leader must act with moral courage even when making decisions behind closed doors. This aspect of leadership has profound implications for prosecutors given that so many decisions occur outside public view and are, essentially, nonreviewable. Elected prosecutors should create systems that provide checks and balances on the decision-­making process. In weighing the morally right choice against the practical pressure to adhere to the status quo, prosecutors will need to keep in mind that they are in the business of doing justice. That moral lens needs to focus on the nature of the relationships the office maintains with law enforcement and police unions such that the closeness of those working relationships does not skew the office’s perceptions when officers have violated the law. Moral courage is needed when making the decision to investigate and charge the powerful or wealthy in a community. There may be political costs to such a decision, but again the fair administration of justice demands an objective look at behavior. Similarly, declining to charge based on unreliable investigations or making decisions to refrain from prosecuting certain types of crimes will likely bring criticism. But if data reveals a disparate effect from the status quo, the office has a moral obligation to take a different tack. For the elected prosecutor, this feature of intersectional leadership may come into play during moments when the elected leader’s personal ambition and political aspirations are implicated. Taking the morally correct stance in a controversial instance may cost some votes, but in the end it will help the elected prosecutor create a fairer system of justice in accord with the minister of justice role.

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Bracing for Impact: Anticipating and Weathering the Backlash Intersectional leadership can and should be integrated into all that the chief prosecutor does to advance a different and more equitable vision of justice. It may even help prosecutors with a progressive agenda better prepare for the inevitable objections to change. While the pioneers of the progressive prosecution movement certainly expected some backlash, they did not anticipate the organized and unprecedented attacks that awaited them. The hostility and coordination of the backlash have been breathtaking. The stories of the impact of these attacks on two new progressive DAs, Larry Krasner and Aramis Ayala, offer a glimpse into the political maneuvers and the effects. Throughout his campaign, Philadelphia District Attorney Larry Krasner took stances that signaled his intent to initiate a radical transformation in the operations of Philadelphia’s criminal legal system. His campaign angered police unions and old guard politicians who looked for ways to make an end run around the reforms he promised even though the overwhelming vote in his favor made clear that the electorate supported his goals. As Krasner was just beginning his reforms, the state legislature passed legislation giving authority to the state attorney general to prosecute certain firearms violations in Philadelphia.36 Not only did the legislation focus only on Krasner’s district, the provision was set to expire just after the end of Krasner’s first term.37 The law gave Pennsylvania Attorney General Josh Shapiro concurrent jurisdiction over certain offenses involving firearms,38 meaning that Krasner’s team no longer had sole discretion over gun prosecutions. As important, Krasner’s justice reform strategy had set its sights on police misconduct and police reform as a main plank in his criminal justice reform strategy. Unsurprisingly, police unions had been vocal opponents during his campaign.39 Now, the new law would allow the Philadelphia Police Department to bypass Krasner’s office and to work directly with the attorney general.40 The added complicating factor was that many of the lawyers whom Krasner fired when he assumed his role went to work for the attorney general’s office.41 So how did this legislation pass? Republicans controlled the legislature, so arguably an antireform response was to be expected. But the Democratic governor signed the bill into law. There was very little public

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discussion or even awareness of the bill.42 Even some Democratic lawmakers suggested that they did not know that the provision was in the bill. The fact that this passed without public exposure or outcry perhaps speaks to the lack of political experience of a first-­time elected prosecutor. Krasner’s office did issue a statement decrying the move as an attempt to undermine the will of the electorate: It stated that “District Attorney Larry Krasner was elected by an overwhelming margin to push for badly needed criminal justice reforms in one of the most highly incarcerated big cities in the country, and he has serious concerns about what Act 58 does, the potential precedent it sets, and what it signifies for the justice movement at large.” This was a pointed response—­but it was reactive. A more powerful move would have been to rally stakeholders to pressure Democratic lawmakers to raise public awareness before the legislation passed. Even if Krasner and his team lacked the political weight as newcomers to check such a move by themselves, his team, in collaboration with other stakeholders in the community he served, might have been able to expose the political power grab and prevent it. Fortunately, Attorney General Shapiro was quick to distance himself from the legislation, making plain that he had not sought or advocated for a shift in authority and vowed to work with Krasner. The political and personal attacks were certainly not over. A Trump appointee, United States Attorney Bill McSwain, as well as Trump himself have gone after Krasner for his reform agenda.43 At the White House, the president met with the president of the Philadelphia Fraternal Order of Police, where they discussed “progressive” district attorneys, including Krasner, and their impacts on the criminal justice system.44 Then, in Hershey, Pennsylvania, Trump referred to Krasner as the “worst district attorney,” after mentioning that Philadelphia didn’t work with US Immigration and Customs Enforcement.45 Krasner has also faced attacks from local judges and other elected officials.46 In Florida, perhaps an even more devastating political attack from conservative forces occurred. Aramis Ayala was the first Black state’s attorney after 172 years. She was an outspoken critic of the criminal legal system and vowed that, as state’s attorney for Orange and Osceola Counties, she would work to fix the broken justice system. She began by declaring that she would never seek the death penalty in a case, even if

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it was a legal option, because “there is no evidence that death sentences actually protect the public.” Then–­Governor Rick Scott reacted to that promise by claiming that her announcement demonstrated that “she will not fight for justice,” and he transferred 29 capital cases from her office. GOP lawmakers slashed her budget. Ayala sued the governor but ultimately lost in state supreme court. The local police union in Orlando threw its support behind a prosecutor named Ryan Williams. Williams ran on the fact that he left Ayala’s office and joined the state’s attorney to whom all those capital cases were transferred by Governor Scott. Ayala not only encountered political maneuvers intended to derail her efforts, she also endured death threats and personal attacks that her white male counterparts did not. Ayala received a noose with a racist message days after she announced her unwillingness to pursue death cases. A county clerk employee posted on Facebook that she should be “tarred and feathered if not hung from a tree” for refusing to pursue capital punishment. The employee sued the county clerk’s office after being forced to resign, claiming violation of his First Amendment rights. In the end, Krasner was able to weather his attacks, but Ayala made the decision not to run for reelection. The attacks against Ayala were more personally threatening and disturbing in nature than those experienced by Krasner. In hindsight, intersectional leadership could have helped both Krasner and Ayala anticipate and address the political and personal attacks leveled against them and their reform plans. Unless prosecutors are savvy about their external political strategy in engaging reforms, they can fall victim to conservative news outlets, politicians, and judges. By engaging the public and focusing on external messaging, the elected state’s attorney can fend off some of the vitriol that is now quite often part of the political discourse. But messaging does not have to emanate solely from the DA. If DAs have developed broad networks in the communities they serve, they can tap those partners to speak on behalf of the office and to rally political forces in support of the DAs’ proposed reforms. Those individuals and networks can garner political and media attention. They can expose the attacks for the partisan maneuvers that they are. And if the networks can organize sufficiently, they can make it more difficult for opposing forces to operate swiftly. Of course, more than being reactive is important. The progressive DA, much like any good chess player, needs to be able to think a few

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moves ahead, anticipating objections and countermoves. Again, intersectional leadership recognizes the complexity of leading in today’s environment. The leader needs to be able to hold multiple perspectives simultaneously. The district attorney’s role cannot simply focus on what is occurring within the office. The role means understanding the dynamics of the political environment in which the office operates and being alert to patterns and signals of resistance to the reform agenda. The development of a broad team and insistence on nurturing relationships and networks outside the office enables intersectional DA leaders to keep their heads on a swivel: to see and anticipate issues before they occur. No single leader can know everything or anticipate every action. But broad networks extend the individual leader’s line of sight and ability to see around corners. And those networks can be mobilized to act in support of or in opposition to moves such as the ones that Krasner and Ayala encountered. With respect to personal attacks, the intersectional leader will often stake out a place of moral integrity that will mean personal or political sacrifice. Of course, personal sacrifice should never mean having to risk either safety or life to do the work. And I do not mean to underestimate the debilitating power of racist attacks. Racism quite simply has no place in our justice system.

Creating the Framework for Change: New Processes and Measures of Success The old mantra “what we measure matters” carries even more weight in the prosecutor’s office. As progressive offices look to repair harm and rebuild trust in the integrity of the justice system, they will need to increase accountability and transparency. That means collecting, analyzing, and disseminating data about their practices. Data helps leaders track what offices are doing to discern trends and patterns. Data tells prosecutors what problems are the biggest threats to community well-­being and point toward solutions to tackle those problems. Data can measure the overall impact of prosecutors’ work and identify policies or practices that need to be changed. Data can be used to evaluate prosecutorial programs and to determine which ones need to be expanded or abandoned. For decades, prosecutors’ offices have felt no pressure to become data-­ driven organizations. However, expectations have shifted. Being able to

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track everything—­from bail requests in different types of cases to measuring racial disparities in charging, plea negotiations, and sentencing recommendations—­will help promote fairness and equity in the daily operations of the office. It will also identify areas that leadership needs to address to identify and redress racist or biased practices. For example, far too few offices track court findings of bias or other prosecutorial misconduct.47 Take an example from North Carolina. State appellate courts found that prosecutor Margaret Russ had engaged in racially biased jury selection.48 This was not the first time. Prior to that, in State v. Parker, there was another judicial finding that she had engaged in racially biased behavior in striking Black people from the jury.49 In addition to those findings, trial and appellate court judges had reprimanded her for improper conduct.50 One trial judge found that she made comments to a jury that had been “calculated to mislead or prejudice the jury.”51 There is no record or evidence that her office tracked or did anything to address her repeated ethical lapses and instances of misconduct. At a minimum, offices need to establish a routine of collecting and reviewing court rulings and then taking steps to stop or amend practices in light of those decisions. Data collection can guide in-­service training to enable prosecutors to learn from mistakes. Businesses in the private sector have long recognized that ignoring failures or only celebrating wins leads to an unproductive repetition of mistakes. As a result, they have established routines where they engage in after-­action reviews to learn lessons from operational and policy errors. The same cannot be said for prosecutors. For the most part, prosecutors’ offices either ignore findings of misconduct by courts or vigorously deny that they did anything wrong. But the failure to collect this data—­coupled with the unwillingness to own up to the problems—­gets in the way of coaching or training those lawyers to prevent any recurrence of the behavior. Creating processes and procedures to review court rulings of prohibited behavior can inform the individual development of lawyers in the office, improve the performance of more seasoned prosecutors, and create continuing education opportunities for the office. As important, collecting this data, using it, and responding to it will demonstrate that leadership believes that misconduct matters and will not be tolerated.

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The calls for reform by prosecutors’ office have also centered on the need for greater transparency in the ways that offices exercise discretion. Given that some of the most significant decisions that a prosecutor makes occur outside the public view, finding ways to monitor and then publicly communicate the criteria for discretion will help to bring visibility to the office’s choices and priorities. Of course, elected district attorneys are often loath to make large pronouncements about how their offices will exercise discretion for fear of retaliation by other criminal justice actors or the public. Those progressive prosecutors who have chosen to adopt a different approach to low-­level crimes, drug-­related offenses, and poverty-­related crimes have encountered, at times, blistering criticisms. However, if the office is going to take away someone’s liberty, it is important that the public understand that those choices are being made fairly. Breaking down the data by race, ethnicity, age, and neighborhood will help to unearth patterns. By tracking those cases that receive prison time, plea bargains, or diversionary programs and reporting that data publicly, the progressive prosecutor’s office will begin to understand its prosecutorial choices and whether it is still contributing to mass incarceration or actively working to dismantle it. Promotions within prosecutors’ offices should be tied to data as well. Right now, promotions tend to revolve around a three-­part equation of tenure in the office, number of trials or motions, and, in some cases, trial outcomes. This emphasis on litigation is misplaced. It signals the wrong goals by measuring the wrong things. If one wants to push the office to try cases and rack up convictions, then by all means connect promotions to that behavior. What you measure matters. If, instead, an office wants to set the expectation that it values the development of alternate ways to address criminal conduct—­through diversion out of the system or engagement of other restorative options—­then the promotion system must highlight and reward those practices. Not only does trial-­ based promotional criteria reflect the value that professional success is premised on trial convictions; it also inaccurately measures actual performance. Relatively few cases actually proceed to trial. Nationally, the rate of cases that resolve through the entry of a guilty plea consistently sits above 90 percent.52 To base promotions on a statistic that involves so few of the actual cases that a lawyer handles does not make sense. It also operates as a disincentive to dispose of cases short of trial.

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Again, the private sector’s experience may be instructive. Fortune 100 companies once based promotions on the ability to be the best “rainmaker”: if the individual brought in business, then the company would promote the person regardless of how he treated employees. But in the past few decades, those same businesses have recognized that the leader who is individually successful, but does not adhere to the company’s values, is simply not an asset. These businesses link promotion to the team’s financial success and also weigh the individual leader’s ability to manage, motivate, and create an inclusive environment for people as equally valuable criteria for promotion. Promotions map to the individual’s work in the service of a shared leadership vision and an adherence to the values that vision embodies. So, a prosecutor’s office that develops a progressive vision of practice should link advancement to the prosecutor’s embrace and execution of that vision. As with any shift in strategy, there may be some prosecutors within the office who will never support the new vision. That might include members of the existing leadership team. Prosecutors who have become accustomed to—­and who have thrived under—­old structures may be unable or unwilling to adapt. Some prosecutors might view the change as a condemnation of their careers. They also might perceive an emphasis on racial equity as a personal rebuke. They might feel that the cultural shift and attention to issues of bias are intended to single them out as racist or unethical. Others still might simply believe they can wait out the term of the new regime, embracing a “this too shall pass” attitude. Some newly elected prosecutors have taken office and immediately terminated senior managers.53 Larry Krasner, Philadelphia’s elected prosecutor, fired more than thirty prosecutors, and almost twice that number either retired or sought employment elsewhere.54 The clear articulation of a progressive vision supported by new promotion criteria and new expectations may have the effect of moving people out who do not embrace the new vision. However, it may also serve to change some existing prosecutors’ thinking and approaches. That ability to gain buy-­in will be critical to making the transition from conventional thinking to a reform-­minded vision. In the 1990s, during the height of the community prosecution movement, I often spoke with elected prosecutors about the need to bring aboard leaders and seasoned lawyers for the concepts to gain traction. Some elected district attorneys

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spent time helping senior leaders see the benefits of a community orientation in advancing the existing goals of the office. Others assigned the lawyers known as the “trial dogs”55 to a rotation in the community prosecution units. These efforts often asked prosecutors to take a leap of faith without anything other than good will backing up the request. But in today’s environment, data will help make the case for change. Using data to keep track of what each lawyer is doing on cases—­from bail requests to sentencing recommendations—­is key. Concrete data will enable both internal and external buy-­in. Crime rates tend to have too long a trajectory to be an effective measure of immediate changes in prosecutorial policy. Examining individual case outcomes, caseload reductions, and budget savings may be a more productive means of analyzing the new approach in the short term.

Conclusion: Repairing Past Harm and Setting the Stage for the Future Many of the recent justice reforms initiated by progressive-­minded prosecutors have resulted from electoral change and public endorsement of reformist platforms. However, the transformation of the criminal legal system should not hinge on the removal and replacement of a sitting district attorney. Instead, current district attorneys need to embrace an active role in creating a fairer system and must recalibrate their leadership to achieve that vision of justice and racial equity. Indeed, an overhaul of the criminal legal system will never happen if only the few newly elected progressive prosecutors are in the fight for reform. Incumbent district attorneys and career prosecutors must be part of the solution. Fortunately, a range of philanthropic groups, foundations, think tanks, and advisers are willing to work collaboratively to enable prosecutorial change and justice reform. Many of these organizations are looking for offices willing to participate in pilot programs and studies and will help provide training on issues of discretion, race, and use of data. Involvement in this work often only requires the active participation and commitment from the elected district attorney. Every leader casts a broad shadow that establishes a tone within the office and shapes—­or misshapes—­the office culture. Assistant DAs watch the DA and take cues about their own behavior from the DA’s

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conduct. Does the DA walk the talk? What does the DA value? Staff discern those answers simply by observing what the DA rewards and values, as well as where and with whom the DA spends time. That being said, district attorneys have an opportunity. It begins not just with a personal dedication to a more just criminal legal system, but with a commitment to lead the effort by modeling it. Of course, leadership is not something that happens automatically by virtue of a title or position. Leadership, at its core, is a reflective exercise. It requires an individual to have a vision about the higher purpose of the work. That vision is buttressed by the leader’s willingness and courage to hold up a mirror to see what will enable or interfere with that vision’s realization. Leadership then requires deliberate action by the leader. Prosecutors have always known that they must balance two roles: advocate for the state, and minister of justice. For too long, though, the advocacy role has not only dwarfed the minister of justice role, it has almost obliterated it. However, that justice role must be revived and reimagined. Doing justice means that prosecutors’ offices must develop practices that serve as an integrity check on acts they carry out beyond public view. It means that they must become more alert to the racialized impact of their decisions about whether and how to engage the formal system of prosecution. Seeking justice may also mean declining to prosecute a case, dismissing it, or diverting it. Of course, the process of administering justice extends beyond the individual case. It places cultural demands on the chief DA to take steps to actively create a culture of equity and inclusion. Ensuring that the office adheres to a higher shared purpose of fairness requires attention to incentives, to the composition of the office, and to the explicit and implicit messages within the office. Given the urgency of the movement to reform the justice system, as well as the broad and expanding impacts of the justice system, district attorneys will need to learn and demonstrate the traits of intersectional leadership. They will need to develop and participate in expansive internal and external networks to be able to tap into varied streams of ideas, experiences, and information. Dissimilar voices can and will bring value to the district attorneys’ thinking. Finally, the competition and collision of ideas will lead to a richer set of options. However, all of this begins with a vision of the justice system and the office’s role in achieving that vision: a vision that clearly articulates the impact of race and establishes

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values, goals, and concrete steps to achieve racial equity in the criminal legal system. That vision, coupled with new disciplines around accountability and transparency, will go a long way toward repairing the harm that the current system has wrought. There is simply no time to wait. Notes

1 Nick Corasaniti and Katie Glueck, Protests in Minnesota Renew Scrutiny of Klobuchar’s Record as Prosecutor, N.Y. Times, May 29, 2020, www.nytimes.com. 2 Don Stemen, The Prison Paradox: More Incarceration Will Not Make Us Safer, Vera Institute of Justice (2017), www.vera.org. 3 Every Second: The Impact of the Incarceration Crisis on America’s Families, FWD. US (Dec. 2018), https://everysecond.fwd.us. 4 Crime Survivors Speak: The First-­Ever National Survey of Victims’ Views on Safety and Justice, Alliance for Safety and Justice (2016), https://allianceforsafetyandjustice.org. 5 Todd R. Clear et al., Predicting Crime through Incarceration: The Impact of Rates of Prison Cycling on Rates of Crime in Communities, U.S. Department of Justice (July 2014), www.ncjrs.gov. 6 See Emily Bazelon, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration (2019); Daniel Nichanian, The Politics of Prosecutors, The Appeal, https://theappeal. org. 7 Nicholas Fandos, Senate Passes Bipartisan Criminal Justice Bill, N.Y. Times, Dec 18, 2018, www.nytimes.com. 8 Id. 9 Anthony Thompson, It Takes a Community to Prosecute, 77 Notre Dame L. Rev. 321 (2002). 10 Gabrielle Karol, District Attorney Staff Makes Fun of Black Lives Matter in Office Skit, ABC 10 News, Nov. 7, 2016, www.abc10.com. 11 San Joaquin County District Attorney’s Office, Tory Verber Salazer—­District Attorney, www.sjgov.org. 12 Voices of Change, Fair and Just Prosecution, https://fairandjustprosecution.org. 13 Laura Clawson, 39 Prosecutors Blast Barr’s Fear-­Driven Narrative on Criminal Justice Reform, Daily Kos, Feb. 14, 2020, www.dailykos.com. 14 E.g., Tim Prudente and Phillip Jackson, Baltimore State’s Attorney Mosby to Stop Prosecuting Drug Possession, Prostitution, Other Crimes Amid Coronavirus, Baltimore Sun, Mar. 18, 2020, www.baltimoresun.com; Bill Bush, Columbus Will Not Prosecute Misdemeanor Marijuana Possession Cases, Columbus Enquirer, Aug. 7, 2019, www.dispatch.com; Miami-­Dade to Stop Prosecuting Misdemeanor Marijuana Possession Cases, NBC Miami, Aug. 9, 2019, www. nbcmiami.com.

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15 E.g., Lauren Aratani, St Louis Prosecutor Refuses to Accept Cases from Police Officers Accused of Racism, The Guardian, June 19, 2019, www.theguardian.com; Elizabeth Weill-­Greenberg, When Cops Lie, Should Prosecutors Rely Upon Their Testimony at Trial, The Appeal, Jul. 29, 2019, https://theappeal.org. 16 Matt Daniels, The Kim Foxx Effect: How Prosecutions Have Changed in Cook County, The Marshall Project, Oct. 24, 2019, www.themarshallproject.org. 17 Nate Gartrell, In Cases of Resisting Arrest or Violence against Police, Contra Costa DA Won’t File Charge without Reviewing Available Body Cam Footage, The Mercury News, Aug. 10, 2020, www.mercurynews.com. 18 Chesa Boudin, Opinion, The Police Answer to Us. What Will We Do About It? San Francisco Chronicle, July 27, 2020, www.nytimes.com. 19 Id. 20 Michael Brice-­Saddler, 41 Prosecutors Blast Attorney General Barr for ‘Dangerous and Failed’ Approach to Criminal Justice, Wash. Post, Feb. 13, 2020, www. washingtonpost.com. 21 Kristina Rex, DA Hopeful’s “Do Not Prosecute” List Has Critics Saying She’s “Soft on Crime,” CBS B oston, Sep. 7, 2018, https://boston.cbslocal.com. 22 Alicia Victoria Lozano and Lauren Mayk, U.S. Attorney McSwain, Philadelphia District Attorney Krasner Clash Despite Shared Vision for Safer City, NBC Philadelphia, June 20, 2019, www.nbcphiladelphia.com. 23 Ben Austen, In Philadelphia, a Progressive D.A. Tests the Power—­and Learns the Limits—­of His Office, N.Y. Times, Oct. 30, 2018, www.nytimes.com. 24 Wesley Bell et al., Opinion, Reform prosecutors are committed to making society fairer—­and safer, Wash. Post, Aug. 16, 2019, www.washingtonpost.com. 25 The National Organization of Black Law Enforcement Executives website, https:// noblenational.org. 26 See, e.g., 100 Blacks in Law Enforcement Who Care, tripod.com. 27 Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 Colum. L. Rev. 1303 (2018). 28 Benjamin Mueller et al., Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic, N.Y. Times, May 13, 2018, www.nytimes.com. Ashley Southall, Scrutiny of Social-­Distance Policing as 35 of 40 Arrested Are Black, N.Y. Times, May 29, 2020, www.nytimes.com. 29 Southall, Scrutiny of Social-­Distance Policing. 30 Josiah Bates, Police Data Reveals Stark Racial Discrepancies in Social Distancing Enforcement Across New York City, Time, May 8, 2020, https://time.com. 31 Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, The Atlantic, May 2, 2017, www.theatlantic.com. 32 Justin Jouvenal, They Send People to Prison Every Day. Now, They Are Pledging to Visit, Wash. Post, Nov. 25, 2019, www.washingtonpost.com. 33 Anthony C. Thompson, Dangerous Leaders: How and Why L awyers Must Be Taught to Lead (2018). 34 Id. at 10.

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35 Conversation with Kim Taylor-­Thompson about the orientation session during new lawyer training in 1991 conducted by Francis D. Carter, Director of the Public Defender Service for the District of Columbia. 36 Akela Lacy and Ryan Grim, Pennsylvania Lawmakers Move to Strip Reformist Prosecutor Larry Krasner of Authority, The Intercept, July 8, 2019, https:// theintercept.com. 37 Id. 38 Id. 39 Noam Scheiber et al., How Police Unions Became Such Powerful Opponents to Reform Efforts, N.Y. Times, June 20, 2020, www.nytimes.com. 40 Lacy and Grim, Pennsylvania Lawmakers. 41 Id. 42 Id. 43 Lozano and Mayk, U.S. Attorney McSwain. 44 Greg Argos, Philadelphia FOP President, DA’s Office Reignite War Of Words After Police Union Meets With President Trump, CBS Philly, Dec. 6, 2019, https:// philadelphia.cbslocal.com. 45 Virginia Streva, Trump Calls Philly’s Krasner ‘the worst District Attorney’ during Rally in Hershey, Philly Voice, Dec. 11, 2019, www.phillyvoice.com. 46 Kristen Johanson, City Judge Slams DA for Asking Him to Remove Himself from Criminal Cases, KYW NewsRadio, Aug. 13, 2019, https://kywnewsradio.radio. com. 47 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) (holding that a prosecutor’s use of a preemptory challenge could not be used to exclude jurors solely on basis of their race, subsequently referred to as a Batson error/violation). www.apmreports.org. 48 Thompson, Dangerous Leaders 70–­7 1. 49 Id at 71. 50 Id at 71. 51 Id at 71 n.4. 52 Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals, N.Y. Times, Mar. 22, 2012, www.nytimes.com. 53 Evan Sernoffsky, New SF District Attorney Chesa Boudin Fires Several Prosecutors, San Francisco Chronicle, Jan. 10, 2020, www.sfchronicle.com. 54 Chris Palmer, Larry Krasner’s First Year as Philly DA: Staff Turnover, Fewer Cases, Plenty of Controversy, Philadelphia Inquirer, Jan. 6, 2019, www.inquirer. com. 55 “Trial dogs” was the label for senior lawyers with the reputation of being the best trial lawyers in the office. In offices where trial statistics were currency, trial lawyers were considered the unofficial leaders.

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2

2020 Vision and the Five Pillars of Criminal Justice Reform Dan Satterberg

The decade of disruption that squeezed into the year 2020 has given us a new lens through which to view criminal justice reform. We thought we had already identified the changes to the criminal justice system necessary to improve fairness and legitimacy toward the people most impacted by crime. Then 2020 brought extraordinary events—­the coronavirus pandemic, the resultant wide and deep economic collapse, and the Black Lives Matter (BLM) uprisings throughout the nation. What we see now, with 2020 vision, is a new urgency to the mission of criminal justice reform, as well as opportunities to go bigger and bolder in our vision of what must be done to accommodate a pandemic, to rescue court systems from historic backlogs amid budget reductions, and, most important, to begin reconciliation with communities most affected by crime and least trustful of our criminal legal system. Even before COVID-­19, the way prosecutors were wielding their discretionary power had begun to come under critical scrutiny. Prosecutors deserve this inspection, and we should welcome it. It is a necessary part of the conversation about America’s mass incarceration era and about the justice system’s punitive excesses. Gone are the days when the local DA’s reelection was a down-­ticket race that attracted little interest and when the typical white male incumbent’s continued reign in office was all but certain. Today, prosecutors proudly call themselves progressive and run on platforms of change. My interest in this conversation is not academic. I am a career prosecutor with more than 35 years of experience in the King County (Seattle) Prosecuting Attorney’s Office, an office of 500 employees, half of them deputy prosecutors. That experience convinces me that prosecutors are uniquely situated to address the very real concerns about how

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we “do justice” because we have the power and potential to change what is wrong with our local criminal justice system. Mass incarceration is an undeniable mathematical fact. America leads the world in the rate and numbers of people imprisoned, with 5 percent of the world’s population and 25 percent of its prisoners. It wasn’t always like this. Through much of the last century, America’s incarceration rate remained at approximately 100 per 100,000 people, which is the current rate of most of our peer countries that we call “developed.” Starting in the 1970s and exploding throughout the late twentieth century, the great American incarceration experiment saw each state build and fill prisons at an extraordinary pace, increasing our national incarceration rate to nearly 500 per 100,000. Even as crime rates began to drop after peaking in the mid-­1990s, incarceration rates continued to climb. The policies that laid the foundation for the enormous increase in prison population in America were made independently throughout each of the states. Criminal justice policy in the United States has not historically been informed by the science around human behavior or addiction, or by medicine or criminogenic psychology. It has, instead, been fueled by anger, fear, and the visceral reactions of politicians and the public. Emotional and political responses to horrendous crimes or to a new drug we did not fully understand have driven policies calling for longer sentences, mandatory minimum sentences, and less judicial discretion. American law reflects a culture that is punitive, reactionary, and largely indifferent to the human and social costs of using prison as a means of social control. Mass incarceration has simply become our new normal, and efforts to reverse it will face strong political resistance. Nevertheless, prosecutors should lead the efforts to change the way we seek “accountability” for people who break the law. Today, we are seeing a slight decrease in the rate of incarceration and a small reduction in the racial disproportionality that is endemic to our criminal legal process. Continuing in this direction and making any significant dent in the national rate of incarceration will require bold and intentional actions by prosecuting attorneys throughout the United States. While we often speak in terms of a monolithic criminal justice system, there are more than 2,300 separately elected prosecutors leading their offices and setting local priorities and policies. They can either continue the era of mass incarceration or begin to reverse it. Change will come one county at a time.

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In this chapter, I offer five broad categories to help guide the prosecutor who wants to reverse mass incarceration and work for change, what I call the “Five Pillars of Criminal Justice Reform.” They represent the foundation on which a new system of criminal justice could be set, one that still acts to preserve public safety, but with a smaller punitive footprint. My blueprint suggests that prosecutors do the following: (1) divert and deflect matters away from the courthouse; (2) build public health responses to behavioral health disorders; (3) advocate change in procedure and sentencing laws to promote fairness and transparency; (4) make the case for prison reform; and (5) invest in “no return” strategies to enable successful reentry. Our collective experience beginning in 2020 demonstrates that we need to do all of that. And quickly. The Black Lives Matter movement has underscored how our reliance on incarceration has proven to be an unsustainable strategy that harms community trust. The Five Pillars offer a common foundation for a new approach to justice across America, or at least in individual counties. Prosecutors dedicated to reform should first identify their motivations for challenging the assumptions and legal models they inherited from previous generations of prosecutors. This requires an understanding of our national history of racial injustice, as well as the ability to say and believe that Black lives matter. Prosecutors who decide to become agents of change should launch initiatives within each pillar, using partnerships, prosecutorial discretion, and imagination to envision, build, and sustain viable alternatives to the traditional reliance on incarceration and punishment that uniquely marks our American response to crime and social disorder.

My Personal Journey As the elected King County Prosecuting Attorney, I lead an office that serves more than 2.2 million people in a fast-­g rowing, postindustrial metropolitan area, with Seattle as our county seat. Home to Microsoft, Amazon, Starbucks, Boeing, and many more Fortune 500 companies, we have also experienced the negative impacts of a booming economy—­housing shortages, gentrification, and yawning gaps between the haves and the have-­nots. Like other major urban areas, we also have historic levels of homelessness and untreated behavioral

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health conditions and the obvious social disorder that accompanies these conditions. Born in the suburbs south of Seattle, I attended the University of Washington, where I obtained degrees in journalism, political science, and law. I went to law school with the idea of being a trial lawyer and quickly discovered the King County Prosecuting Attorney’s Office as the best place to learn those skills. For the first five years of my career, I pursued an ambition to be a courtroom lawyer, trying dozens of felony cases from homicides to sex offenses to drug cases. In 1990, at the age of 30, I had the great fortune of being appointed to the role of chief of staff to Norm Maleng. Although my professional goal was originally to be a trial attorney, I have not tried a case in court since then. Norm served as the elected King County Prosecuting Attorney from 1979 until his untimely death in 2007 from a heart attack at the age of 68. To me, Norm was a father figure and the person who taught me about being a decent human being—­and about the power inherent in the job of prosecutor. When Norm died, I was appointed interim prosecutor and within a week was in a competitive campaign for the office. I was elected in 2007 and reelected in 2010, 2014, and 2018. It is clear from the changing tenor of these campaigns over a dozen years that the community’s expectation of their prosecutor has changed. People now ask about the exercise of our discretionary power and are concerned about mass incarceration. In my first three decades as a prosecutor, there was little discussion of racial injustice, implicit bias, or disproportionality within our profession. When I started mandatory training on equity and social justice (ESJ) in the mid-­2010s, there was a palpable discomfort among veteran prosecutors, some of whom voiced protests against having to watch videos and do training with racial justice facilitators. It made them feel as if they were complicit in racism, when all they were doing was prosecuting crimes of violence. This discomfort is a good sign, I said: “If you are not uncomfortable with America’s history and racial injustice, then you are not paying attention.” I am glad that we launched a robust ESJ committee within the office prior to the BLM movement. We still have work to do to create a workplace where essential conversations about race can happen. We also need to identify racial disparities in our outcomes and use an antiracism lens in pursuing reforms in partnership with the community. Antiracism is an ongoing commitment, not just a box to be checked.

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I began my career believing that enforcing the law was equivalent to doing justice. I soon realized that the results of a prosecution could be both totally legal yet completely wrong. The law as handed down in our state capitol in Olympia is not self-­executing; it is a starting point for the necessary exercise of discretion, judgment, and mercy. Those are the elements of justice. Prosecutors must inject their own common sense and instinct for justice to achieve individual outcomes that are fair and just. While the written law does not require it, the most effective prosecutors also develop community partnerships to tackle the complex social and medical problems that people charged with crimes often present in court and to build alternative pathways so that the court system is not the only option for treatment and behavior modification. I count myself among the new wave of progressive prosecutors. I serve on the advisory boards of several national organizations (Fair and Just Prosecution, Institute for Innovation in Prosecution, Association of Prosecuting Attorneys) dedicated to helping new prosecutors discover their innate power to make change. In contrast to most of the progressive prosecutors in America who have recently been elected by unseating incumbents, I represent the potential that prosecutorial policy change can happen from within an office that has benefited from decades of institutional and political stability. Since 1949, there have been only four elected King County Prosecuting Attorneys. This could be a cause for concern because institutions, if left alone too long, tend to serve themselves and are not incubators of change. I decided shortly after being elected in 2007 to see if we could challenge that notion and thereby bring about changes to our office, our community, and our local criminal justice system. Of course, there is natural resistance to change. Change will be hard, even in this cataclysmic time. There is a natural defensiveness buttressing the status quo. People who have spent their careers acting one way may resent being told that a change is coming to their practice. Any change worth making will engender resistance, and the degree of pushback is a measure of the importance of the reform. That said, identifying the major shifts that we must make within each of the Five Pillars of criminal justice reform is not intended to be a search for fault. It is, instead, a search for justice. Each pillar has its own history and political tensions. The prosecutor who wants to be a catalyst for change will need to engage partners to build and sustain each pillar.

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We have an obligation to reexamine some fundamental assumptions of the past that have made the American criminal justice system into the default response for complex social and medical issues. We need to articulate the purposes for imprisonment and define the goals of punishment to include readiness to reenter society once the debt of incarceration has been paid. Our prisons are demonizing and brutal, and we have better models to follow from other nations. We should also consider how long in prison is long enough and provide ample rehabilitative programming and incentives for incarcerated people to change that can be recognized through avenues of sentence review. Criminal justice reform is ultimately a test of American values. It will take imagination and political courage, as well as a grounding in our true and bloody national history of racial injustice. This work is also about improving public safety in all quarters of the city, especially among communities of color, the poor, immigrants, and those with behavioral health disorders. These communities have plenty of reasons to distrust law enforcement, and many people in these communities believe that they should never summon the police or cooperate with them. This is the rule in too many American cities and is a stinging indictment of our criminal legal system. This is no less than an existential challenge—­it impacts the legitimacy of the government to exercise power over people.

The Five Pillars of Criminal Justice Reform The horizon of criminal justice reform is broad, and the elected prosecutor has the unique position to influence change in attitudes, funding, and practice in each of these five essential pillars to build a new foundation for a broader acceptance of the legitimacy of our criminal justice system.

Pillar One: Divert and Deflect Matters Away from the Courthouse I always listen to what I can leave out. —­Miles Davis

Bebop jazz legends could play a lot of notes quickly, and they often did, but it was the notes they didn’t play—­the silent spaces living between

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their sheets of sound—­that solidified their art. Less can be more, especially when it comes to exercising power. Simply because we can do something doesn’t mean we should. Our system would be stronger, and enjoy more community support, if we didn’t try to play all the notes we possibly can in response to situations. Prosecutors are gatekeepers and necessarily have a quality-­control function for matters worthy of the stakes and costs of our criminal legal system. One strategy to build more trust with communities most impacted by crime is to shrink the footprint of the criminal legal system and aspire to have fewer people under our jurisdiction, whether incarcerated or under community supervision. Only by involving the community in our work can we build bridges of understanding, utilizing the talents and resources of people who want to work with us to repair the damage done by the excesses of past law enforcement efforts. Perhaps it helps to begin with some key definitions. “Deflection” means keeping certain categories of offenses from ever reaching the courthouse door. One example from my tenure was my decision not to file the gross misdemeanor charge of Driving While License Suspended Third Degree (DWLS3). It has always been a policy challenge for state and local governments to collect civil fines for things such as parking tickets and speeding infractions. The crime of DWLS3 was invented as an approach to collect unpaid civil fines, including speeding tickets. If a person was delinquent on enough speeding violations, the state would suspend his license to drive, often without his knowledge. The next time the driver was pulled over by police, he would be issued a DWLS3 ticket—­a criminal offense—­and often taken to jail while the car was impounded. People would continue to drive in order to work and support their family, and they would continue to be arrested, jailed, and fined for DWLS3. These cases also generated thousands of arrest warrants, because the people who couldn’t pay speeding tickets were often in poverty, unstably housed, unreachable by court summons, and also fearful of coming to court. At the point I made this announcement, DWLS3 cases represented about 40 percent of the district court caseload—­more than 4,000 cases filed by my office annually. The county was, according to public defender caseload standards, paying for the equivalent of eight full-­time public defenders to cover this caseload, though the cases were typically mixed

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with other types. The total costs associated with the prosecution, defense, police, warrant service, jail, and court time were estimated by my office to exceed $3 million annually. It was pointless as a business model for the county to spend this much good money to chase bad debt owed to the state. The enforcement of this law was also felt disproportionately by people already marginalized in our community—­poor people who were also disproportionately people of color. People struggling to pay basic expenses were frequently arrested on DWLS3 warrants, spending time in jail and losing jobs, apartments, and stability. Ultimately, they would plead guilty and receive a sentence of time served. Their ability to recover a valid license depended on their ability to pay significant fines, fees, and interest, and then to get car insurance. Most people could not raise the funds the court required, but they also had to continue to drive to be able to work. Many of the people caught in the vortex of DWLS3 prosecution would never escape the continual involvement with the court and ever-­mounting legal financial obligations. I admit that I do not know the best way to enforce the civil speeding laws. But I do know the most expensive and most harmful way, and that is to criminalize an unpaid civil fine. Some people were not happy with my decision to deflect DWLS 3 cases from our courts, but it saves the county millions of dollars every year and forces us to rethink the criminalization of civil matters. “Diversion,” in contrast to “deflection,” means that people arrested for crimes in cases that come to the prosecutor from the police can be directed to a path of accountability in community-­led programs designed to be a teachable moment for the individual. Together with partners within the community, we can develop alternative methods of accountability for people accused of crimes. “Community justice” is a phrase I use to describe when the prosecutor shares power and problems with the community. One example is a diversion program I started in the early 2010s with a group now called “Choose 180.” For years, the court had a juvenile diversion program that offered a tremendous opportunity for a young person upon a first or second misdemeanor to avoid being charged with a crime by appearing before the Community Accountability Board (CAB) and performing whatever tasks the CAB assigned. The problem was that the CABs sent

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letters to the youth months after the arrest, in English, to the last known address, and it charged more than $250 for this diversion option. Each year, this process missed more than 400 young people, mostly of color; their cases were then filed in court, and arrest warrants were often issued. These young people missed the golden opportunity of diversion because the system did not know how to communicate with them. I partnered with an ally in the Black community who brought together people willing to fix this. I recall vividly at the first meeting when one of the men, a prominent minister in Seattle, said to me: “Mr. Prosecutor, with all due respect, we never thought you cared about our children; we thought you just wanted to lock them up.” This hurt, but he was right: I had never shown any evidence of willingness to help youth of color access the same benefits in the court system that more advantaged youth had. The Choose 180 program today holds monthly workshops for young people at the campus of Seattle University. The program is fast, free, and personal, featuring a small role for the prosecutor and a major role for the community. Choose 180 became a nonprofit organization with our help and has expanded its reach to provide young adult diversion programs. Looking back on the events of 2020, “defund the police” is a slogan that begs me to add qualifiers. There are few organisms that can be cut in half and still survive, and police departments are no exception. What is imperative is to assess how we have come to overrely on the police to solve our problems. I may be too old to be able to envision a world that has abolished police and prisons. What I can support is a plan to invest more heavily in community nonprofit service providers to build capacity to hold people accountable in ways that both restore the person harmed by the crime and are meaningful to the community. Going forward, that means to move with more urgency to shrink the footprint of the court system. We can send more cases back into a community response where government has paid credible messengers and mentors a living wage to undertake individualized work with people who have had a brush with the law. In King County, this has led to the concept of the First Felony Diversion program, which, true to its name, gives a person upon arrest for their first felony the chance to be diverted to a noncourt response. This is a new concept and still aspirational as of

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this writing. We estimate that 1,000 people can qualify each year for this option. One of the key components is a restitution fund to make victims whole as a way to clear the path for diversion eligibility. The notion of the public restitution fund may strike some people as letting the wrongdoer off the hook. In fact, as anyone near the court system will attest, we do a lousy job of making victims whole. At the end of a months-­long process, the court may order the impoverished and now convicted person to pay a few dollars a month to the person who suffered the loss. We assign victims uncollectable bad debt and pretend they have received justice. A Victim Recovery Fund managed by the community navigator can help make crime victims a little more whole a lot faster and free up noncourt options for community justice. In many instances, the community has a more powerful message and more impactful potential than the court system can ever have. Utilizing the vast potential of the community’s creative spirit to change attitudes and aspirations of wrongdoers is an excellent reason to use the prosecutorial discretion vested in the office.

Pillar Two: Build a Public Health Response to Behavioral Health Issues The opposite of addiction isn’t sobriety. It’s connection. —­Johann Hari, Chasing the Scream (2015), 293

It is easy to forget that, while more than 280,000 people died in 2020 of COVID-­19, America is also still in the midst of a devastating behavioral health crisis. In 2019, more than 72,000 Americans died of a drug overdose, and 45,000 more died by suicide. Another 650,000 are homeless. Stir into this mix the ramifications of the policy of deinstitutionalization of publicly funded psychiatric hospitals (where America lost 95 percent of its inpatient treatment capacity in the twentieth century), as well as institutional and overt racism, historic levels of economic inequality, and untreated trauma, and we have a full-­blown national health crisis. People with chronic behavior health disorders and cognitive challenges regularly come into the criminal justice system not because it is the best option but because often it is the only option. We have already built the courthouse and the jail, so they become the default location for

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the social disorder that may accompany a person in crisis. The criminal legal system can exert jurisdiction over these individuals because they often commit acts that are criminal as a response to their prevailing medical condition. But should it do so? The courthouse and jail are rarely the best choice for dealing with homelessness, addiction, and mental illness. The legal system is, nevertheless, inundated with cases involving subsistence-­level crimes committed by people living on the margins of society who may be stealing to maintain a daily drug habit or acting out due to a serious neurochemical imbalance. While public officials routinely acknowledge drug addiction as a medical issue that we cannot arrest our way out of, few jurisdictions adopt the public health response to illegal drug activity that is consistent with this philosophy. We can, and must, walk the talk when it comes to building a viable response to America’s behavioral health crisis. Interestingly, public opinion favors treatment over incarceration. A 2019 Gallup poll found that nearly half of all adults living in the United States have been affected by substance abuse in their families.1 A 2014 Pew Research Center poll found that two-­thirds of Americans would like to see people arrested with illegal drugs enter a rehabilitative program instead of incarceration.2 If there is a silver lining to this crisis, it is that more families in America have had a front-­row seat to what addiction and mental illness look like. My family is one of those. If your loved one was struggling with addiction and a dual diagnosis of a mental illness, would you want her to work with an experienced counselor with adequate resources to stabilize her and reduce the harm she does to herself, or would you want her to be arrested and put in jail? Why is jail still the only option for substance abuse in nearly every American city? I was on the front lines of the first “War on Drugs,” though nobody I knew in the police department or prosecutor’s office ever used that political term. In 1986, I was a deputy prosecuting attorney newly assigned to felony cases. Typically, our office filed about 400 felony drug crimes each year, mostly for delivery of small amounts of, and possession of, heroin, cocaine, and methamphetamine. Within four years, our caseload exploded tenfold to nearly 4,000 felony cases each year. Crack cocaine had come to Seattle, along with the violence and desperation that profits from addiction bring. That year I tried the first “crack house” case in our

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jurisdiction. It was really just a rundown house with two holes drilled in a sheet of plywood where the front door used to be—­one for the cash, and one for the rocks, like a giant, crude, human-­operated vending machine. It was easy for the police to make a buy, get a warrant, and crash the door. My trial involved more than $6,000 worth of rock cocaine, and a poor woman, who was struggling with her own addiction, happened to be manning the vending machine when police arrived. She was convicted and sentenced to prison, and the cocaine that had been admitted into evidence later was stolen from the evidence room. Still, the absurdity of this situation and my role in it did not immediately dawn on me. I was enforcing the law, and thus I thought I was doing justice. The Washington state legislature responded to the fear of crack with a new sentencing law for drug-­dealing that mandated a 21-­to 27-­month range for anyone selling any amount of these drugs, with a “triple point” criminal history multiplier for people with prior drug delivery convictions. This meant that the second offense carried a mandatory four-­year sentence, the third one a six-­year sentence, and the fourth a ten-­year sentence. Washington prisons burst at the seams with these new inmates. At one point in the middle of the 1990s, 26 percent of inmates were in state prison for a drug offense. Today it is less than 7 percent. The prison population boom required new construction, and by the end of that decade, the prison population tripled, from 6,000 inmates in 1990 to more than 18,000 by the year 2000. This response was replicated in each of the 50 states. The obvious shortcomings of this policy were rarely debated. The racial disproportionality of those arrested, prosecuted, and imprisoned for drugs should have raised alarms. Across America in urban court systems, an estimated 60 percent of the people prosecuted for drugs were African American. In Seattle, the police focused their enforcement resources on the open-­air drug markets, where anyone with a $20 bill in their hand could buy a rock of cocaine. These people, who were addicted and vulnerable themselves and often working the retail market to make their own supply affordable, were the unfortunate targets of our efforts. As in other jurisdictions across the country, King County started a drug court in 1994. At the time, there were about a dozen such courts. We started this program cautiously and included only those people arrested for simple possession of drugs. Dealers of any amount would still

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go to prison. This conservative start was nevertheless a critical acknowledgement that drug addiction was a disease and that people could get better with help. Today, there are more than 2,500 drug courts in America, helping people avoid prison and reclaim their lives. The percentage of people in prison serving a sentence for a drug crime in Washington has fallen from 26 percent to 7 percent. Yet, those who fail in drug court still go to prison, and many of the drug courts in other Washington counties do not permit medication-­assisted treatments such as methadone or buprenorphine for people struggling with opioid addiction. In King County, most of the 350 people in our drug court are charged with crimes more serious than simple possession. Facing prison if they fail, many people earn sustained recovery. I am proud of our efforts to build, change, and sustain our drug court, but it cannot be our only answer to our widespread substance use disorder (SUD) crisis. We must look for answers outside the criminal legal system and follow the best medical research about what works. Achieving a sensible, evidence-­based drug policy should be the low-­ hanging fruit of criminal justice reform. After all, most everybody agrees that addiction is a disease and that no community can arrest its way out of drug addiction. It turns out in practice that shifting the paradigm of our response to people with SUD is not easy at all. There are at least three reasons for the steepness of this hill. First, we must envision, fund, and build the “instead.” It is not enough to deflect drug cases from our court system and simply walk away from people struggling with SUD. We are compelled to build a community-­ based care model, that is, to make sincere offers of help backed with resources to stabilize people who have lost their way due to compulsive drug use. This requires local governments to build something that for most communities does not currently exist. The most important resource (along with case management) is housing. People who use drugs and have criminal records will not naturally rise to the top of the priority list for scarce housing resources, so some housing stock must be reserved for them to provide foundational stability. One “instead” we built in Seattle is the Law Enforcement Assisted Diversion (LEAD) program. It remains our best effort to build a response to public disorder that accompanies the homelessness and behavioral health crisis in our community. To make the LEAD program work, case

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managers carry caseloads of no more than 25 clients each, with the resources necessary to help their clients do less harm to themselves and thus to their neighborhoods. For many jurisdictions, the challenge to build and sustain a more effective and humane response to people using drugs gets stuck at the gate in the budget office. Remember, the jail has already been built and will always accommodate one more booking. Second, change is hard. We routinely ask people using drugs to change everything about themselves, but we are reluctant to change how we look at the world. We are mad at people who use drugs, and we are mad at repeat offenders who did not get better through prosecution. For decades we have been satisfied by punishing people addicted to drugs, despite the complete lack of evidence that incarceration works to manage SUD. Incarcerating addicted people fits within our punitive culture and need for accountability. Imagining a compassionate response can create an uncomfortable dissonance. Third, chronically homeless people with SUD and behavioral health disorders test the compassion of any community. The need to seek drugs every day drives people to desperate measures to get the hundred dollars or more they need to buy drugs and avoid painful withdrawal symptoms. This might mean the commission of daily non–­drug crimes such as theft, prostitution, car prowls, and burglaries. In Seattle, unhoused people camp in tent cities, often unsanctioned on public land. We see them as we drive on the freeways, and somehow we think of their desperate situations as the product of their own personal failures, rather than our collective fault for building an insufficient social safety net. In 2019, a local television news department produced a program titled “Seattle Is Dying.” This was, at best, a debatable declarative statement given the fact that Seattle remains one of the fastest-­growing cities in America and consistently leads the nation in the number of tower cranes erecting office buildings and condos downtown. The TV program offered many close-­ups of the litter that flows from unsanctioned encampments, and it featured interviews with people who left Seattle because of their discomfort with the unsheltered and untreated drug users. At the end of the hourlong show, a long drone shot of McNeil Island in Puget Sound appeared. This former federal penitentiary was given to the state as a prison and was ultimately abandoned due to the extraordinary

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expense associated with an island penal colony. The narrator spoke longingly about the abandoned prison and said: “You might call it an answer waiting for the right question.”3 Putting people who make us uncomfortable and angry onto an island in the middle of Puget Sound seems an outrageous, inhumane, and darkly comical idea. But many otherwise thoughtful people in Seattle responded positively to this show despite the sinister solution offered at the end. Clearly the social disorder that accompanies a cohort of homeless people with co-­occurring disorders deserves some sort of response, and when that is not immediately available, frustrated residents fall back to prosecution and imprisonment—­at least that is some response. People caught with their daily supply of drugs face prosecution and punishment in American courts, but rarely do prosecutors ask an important question: What really happens to the people we prosecute for possession of drugs? Technically, a Violation of the Uniform Controlled Substances Act (VUCSA) for possession of even a tiny amount of heroin, cocaine, or methamphetamine is a felony under state law. I utilized my discretion in 2009 to file possession of less than 3 grams of drugs in our misdemeanor district court. At least, I thought, no one would go to prison from a King County prosecution for their drug addiction. We would file a lesser crime, solicitation to possess a controlled substance, in district court and allow a plea to a gross misdemeanor in lieu of a felony trial in superior court. Here is what really happened to the people we charged with this lesser crime. First, it took an average of one year to resolve the case. Since it was no one’s priority, it took up to six months for the police to send us the case, where it piled up in a backlog of cases. Another three to six months would pass before the case was filed. We then sent a summons and notice of the charge to the last known address of the person caught with the drugs, which was unlikely actually to reach them. When they failed to appear for the court hearing, which they probably never knew about, an arrest warrant was issued from the bench. Eventually, when the person would be arrested, they would be booked into jail. At some point during this long due-­process exercise, the person would spend an average of 15 days in jail—­not as punishment, but because of arrest warrants for failure to appear. Finally, after public defenders were appointed and multiple court appearances happened, the person would

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plead guilty and be sentenced to minimal consequences for their crime, always with credit for time served and usually with nothing else. At no time during this process was the person offered any help with their drug issue. Our court was not set up for this, and probation services for these high-­needs people were out of the question. I had hoped to do less harm to people caught with drugs, but this misdemeanor process still resulted in arrest and incarceration long enough for them to lose any stability they had, forcing them to detoxify in jail. In fall 2018, I announced that my office would stop this practice and presumptively decline to file (“deflect”) cases involving possession of less than 1 gram of the substance they had been caught with. One gram is what a daily drug user needs for a day, about the contents of a Splenda packet, or the weight of a single M&M (plain, not peanut). Deflecting simple drug possession cases involving less than a gram would save the county an estimated three million dollars. I wanted to redirect that money to case management and outreach through the LEAD program. King County leaders accepted my authority to make this decision, enabling me to gain their political support for an additional three million dollars in funding for the LEAD program to expand to Burien, a suburb just south of Seattle. Other cities within King County were wondering where their LEAD program was. I wanted to offer them a response that would be more about help and less about handcuffs. Some critics were upset that I had deflected these drug cases away from the courthouse before we had built sufficient capacity within LEAD to help everyone police arrested. Building a behavioral health system to help everyone who needs it is a worthy aspiration, but waiting for that to happen meant that it would never happen. As long as we continued to process people addicted to drugs through the court system, there would be no sense of urgency to build anything else. While we built a public health response to the tiniest of drug cases, we continued to prosecute people in our misdemeanor courts for possession of drugs in amounts between 1 and 3 grams. There is no evidence that this is helpful, so we used our imagination to rethink this court appearance. We made it about an offer of help. Now, once a person has been summoned to court to be held accountable for a drug possession charge, they are connected to service providers, either through a community court or through a court clinician, who will meet with the

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person in a confidential setting. The point is to use this intervention to make an offer of assistance within a harm reduction framework. This is often described as the “Portugal model” in recognition of the approach taken in 2001 in that nation, which had Europe’s highest rate of intravenous drug use and HIV and hepatitis C. In a trip to Lisbon in 2019, sponsored by Fair and Just Prosecution, twenty US prosecutors from major counties saw the compassionate harm reduction approach of street outreach workers to help drug users. We witnessed firsthand how the medical approach could work to bring down addiction, overdose, and the level of human misery associated with poverty and addiction. In 1974, Portugal had just emerged from a half-­century of fascist rule, where the local police operated as a potent instrument of political repression. When the addiction crisis—­and the associated HIV/AIDS epidemic—­hit the country in the 1980s, the instinct of elected lawmakers was to ask doctors, not police, to help manage it as a public health matter. People caught with less than a gram of heroin in Portugal are not arrested but receive a citation to appear before the Dissuasion Commission. There, they discuss with public health officials how they might do less harm to themselves and their neighborhood. This is where an offer of help is formally made by the government. Drug users have human rights in Portugal, including the right to health care. There is no reason that jurisdictions in the United States could not replicate this approach. It will take political courage and/or a citizens’ initiative to make this happen. Oregon approved a ballot measure to adopt this model in the 2020 general election.4 It will require new funding to build the apparatus of help, but where will we find the money to build greater access to treatment? In Washington State, a citizens’ initiative led to the regulation and taxation of cannabis in November 2012, a reform that was unthinkable from the state legislature. This new state crop raised more than $350 million in tax revenue in 2018, but none of it was dedicated to providing treatment on demand. There is a certain harmony to taxing a new intoxicant to help people struggling with SUD. It was a missed opportunity for our state to allow this windfall of new revenue to be dispersed into the state’s general fund instead of spending some of it on expanding treatment and outreach to our most marginalized people.

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There is a way, but is there a will? Then New York Times columnist Nicholas Kristoff visited Seattle and spent the afternoon with our LEAD case managers in the summer of 2019. Kristoff observes in his essay: As I see it, the problem is that while Seattle has done an outstanding job halting the war on drugs, it hasn’t done well in financing the war on addiction. It closed the law enforcement toolbox without fully opening the public health toolbox.

Kristoff focused on my own family’s challenge with substance use disorder involving my younger sister, Shelley. I have written and spoken about her struggles throughout her life with multiple drugs, culminating in a 15-­year battle with opioids, especially heroin. I offer my story not because my family is special; it is every family’s story in twenty-­ first-­century America. I also offer it because she got better through counseling and medication-­assisted treatment. When Shelley was prescribed buprenorphine, she became a different person, and I could be with my sister again. She had plenty of other problems to deal with, but with buprenorphine she no longer needed to find heroin three times a day to avoid getting sick. She stayed stable on buprenorphine until her death at age 51 from a common infection that her body could no longer fight. It was the needle and the damage done over time that led to her vulnerability. Shelley won’t show up as one of the 72,000 Americans who died in 2018 from a drug overdose, but street drugs and alcohol ravaged her body and shortened her life expectancy. The TV series Frontline also came to Seattle when we developed the LEAD program. The interviewer was impressed by our public health approach but was skeptical that we had not employed the same approach in the late 1980s when crack cocaine was the substance and the people arrested were disproportionately Black. Now that heroin was impacting white communities he asked why we view this not as a crime but as a public health crisis. My response: “Just because wisdom is slow to arrive doesn’t mean you should ignore it when it does.” My evolution as a prosecutor was slow, but I cannot ignore the science behind SUD treatment. We need to build a medical approach to this disease and leave behind our failed strategy to punish people into sobriety. The War on Drugs has always been fundamentally a war on drug users. We rarely see major for-­

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profit drug dealers in our courts, just the sick, vulnerable, and marginalized. For these individuals, a harm reduction approach works far better than incarceration and prosecution. King County’s experience with LEAD demonstrates that law enforcement can play an important role in implementing harm reduction strategies. Harm reduction describes an approach to addressing the SUD by directly targeting drug-­related harms rather than drug use itself. “Harm reduction” means simply helping a person do less harm to themselves and thus to the neighborhood where they reside. Harm reduction can encompass practices such as supervised consumption sites, needle exchanges, low-­barrier non-­abstinence-­based housing and employment initiatives, street drug chemical testing, distribution of Naloxone for overdose prevention and reversal, psychosocial support, and the provision of information on safer drug use. Extensive evidence demonstrates that these practices are cost-­effective and have a positive impact on individual and community health. Central to harm reduction is the principle that institutions must structure their services to meet drug users “where they’re at.” Started in the Belltown neighborhood of downtown Seattle in 2008, LEAD is a partnership between unlikely allies: the Seattle Police Department, King County Prosecuting Attorney’s Office, Seattle City Attorney’s Office, the ACLU, and the Public Defender Association (PDA). PDA is a nonprofit organization led by Lisa Daugaard that, despite its name, does not represent individuals accused of crimes but instead works on the reform of the criminal justice and public safety systems. Daugaard was able to obtain private grants to fund LEAD for the first four years, proving that connecting case managers to street drug users, with the support of law enforcement, could reduce recidivism and improve public safety and the health of individuals. The teamwork that makes LEAD function as intended includes regular communication about clients among police officers, prosecutors, and case managers. Central to this information-­sharing is the waiver of certain medical privacy rights by the clients. They may come into LEAD with preexisting legal entanglements and continue to get arrested while being in the program. The prosecutor’s role is to consult with the police on the activities of the client in the neighborhood and with the case manager about incremental progress seen to date or about dates when

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in-­patient beds will become available. In this way, prosecutors make informed decisions about whether to file new charges against a LEAD client. Sometimes we file charges to get their attention, and sometimes we hold back so as to not interrupt the arc of progress through harm reduction. LEAD has served more than 800 people with chronic SUD, dual diagnosis, and decades of homelessness. They are the most difficult populations to assist, but the LEAD case managers who work for the REACH program from Evergreen Treatment Services have proven beyond a reasonable doubt that the harm reduction approach works for the individual and the community. Evaluations from the University of Washington have proven that LEAD is effective. Harm reduction saves lives and improves quality of life by allowing drug users to remain integrated in society. The alienation and marginalization of people who use drugs often compound the reasons why they engage in unsafe drug use. Harm reduction also reduces health care costs by reducing drug-­related overdoses, disease transmission, injury, and illness, as well as hospital utilization. For many people served by the LEAD program, the offer of help they received upon their arrest for a drug crime might have been their first. The case managers are recruited for their fearlessness, resourcefulness, and willingness to find their clients in alleys and encampments. Many of the clients will need these services for life; others can leave on their own when they are ready and able. I no longer talk about “solutions” to the chronic homelessness challenges facing major cities and small towns alike. No government has solved this crisis, but we can manage it better than we have. We should acknowledge that our choices are “strategies”—­ideas to invest in, evaluate, and adapt to manage the crisis and reduce the harm to individuals and neighborhoods. Viewing homelessness, poverty, and addiction as primarily the job of the criminal legal system to address is a strategy, but it is one that lacks any scientific basis to support its efficacy. I am unaware of any scholarly evaluation that proves that coerced treatment and incarceration from the courts actually work to reduce suffering and to help people recover from the dire straits of the SUD and the trauma of the streets. If prosecution and criminal justice sanctions worked to cure people of their SUD, we would have proven that long ago while we were feverishly prosecuting millions of people for being drug-­addicted in America.

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The COVID-­19 epidemic pushed the overdose crisis off the front pages, but addiction and death continue to plague all communities in America. After a brief dip in 2018, overdose deaths in 2019 soared, to more than 72,000 Americans. Drug overdose deaths reached a record high of 93,331 in 2020.5 Social isolation has always been a component of substance use disorder, and it was required in most communities during the pandemic. More treatment and less prosecution still make up the recipe, but with a new sense of urgency to build stabilizing services to meet the growing needs of people struggling with addiction.

Pillar Three: Advocate Change in Procedure and Sentencing Laws to Promote Fairness and Transparency Before you accuse me, take a look at yourself. —­Ellas McDaniel (aka Bo Diddley)

Our criminal justice system is built to accuse people of wrongdoing, but the system itself contains elements that are unfair to the people caught up in it. Fixing these things is essential to bolstering our legitimacy. Pillar Three contains all of the activity between arrest and sentencing. Within this vast swath of criminal procedure lies numerous areas deserving of scrutiny and reform. This is where the prosecutor’s obligation to the scrupulous defense of the accused’s Constitutional rights is most pronounced. Failure to uphold the protections of the Fourth, Fifth, Sixth, and Eighth Amendments undermines the legitimacy of our authority to convict and control justice-­involved people. The prosecutor’s core function is to hold people accountable for their violent conduct and to seek incapacitation of that individual in the interests of public safety. Prosecutors are entrusted with ensuring that the most serious crimes are handled professionally and in line with constitutional principles. Prosecutors encounter crime victims and their families during the most traumatic moments of their lives, and while prosecutors are not their lawyers, it is natural for prosecutors to want to advocate for victims and to work to minimize the trauma associated with their role in the justice system. This is necessary and satisfying work. Many prosecutors describe the righteousness of this aspect of the job. Supporting crime victims, secur-

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ing lengthy prison sentences for people who commit outrageous acts of violence, and fulfilling the public’s expectation that the prosecutor will hit hard at the worst crimes in the community—­this can be full-­time work, and few prosecutors are criticized for a lack of mercy for the people responsible for their community’s most extreme violence and harm. Indeed, crimes of domestic violence, sexual assault, murder, vehicular homicide, armed robbery, and aggravated assault represent the bulk of the caseloads for most offices. These crimes dramatically alter the lives of victims and their families, often leaving a lifetime of grief, pain, and loss. They are not matters easily suited for alternative resolutions. In these cases, the adversarial role of prosecutors and defense attorneys before the court is the traditional path for case resolution. While there is interest in expanding restorative justice methods to help victims of violent crimes heal, these practices are still mostly aspirational, with notable exceptions such as Common Justice in Brooklyn.6 The Third Pillar of reform underscores that, in the prosecution of serious crimes, how prosecutors secure convictions is as important as whether they do. Criminal procedure is not a strategic game within the adversarial system. It is the way that prosecutors demonstrate the fairness and transparency of the process and outcome: open discovery, fair plea negotiations, supporting robust public defense resources, and strict adherence to constitutional guarantees. In every case, it is our system that is first on trial. Can we follow the rules? Share our information with defense? Seek a fair outcome? Prosecutors must adhere to such rules or risk undermining the results of their work to convict the guilty. Court rules and legal procedures vary widely among the more than 2,300 criminal justice systems in the United States. The prosecutor in each jurisdiction has significant influence over the reform of the procedure followed that leads to a determination of accountability in court. But the principles of fairness, transparency, and protection of constitutional rights is the same in each jurisdiction. In this chapter, I cannot do justice to the entirety of criminal procedure reforms that are necessary. Among the areas ripe for review are: adoption of filing and disposition standards to guide the discretion of deputy prosecutors, bail reform and pretrial disposition alternatives, discovery and body-­worn camera evidence, plea-­bargaining and the trial penalty, voir dire (jury

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selection) and the trial process, sentencing, fines and probation, and the potential unintended consequences of alternatives to incarceration such as extended home detention and probation. These are dynamic areas of local concern, and this list is by no means exhaustive. Every local court system has a culture, and the goal should be to ensure that the person charged can wage a fair fight. It is what each of us would want if we were in the defendant’s chair. A more perplexing area of Pillar Three is our collective community response to serious violence. Violence has dominated the development of humankind, particularly in America, where it has never been hard to find a gun. Homicides claimed 16,214 American lives in 2018—­nearly 45 people murdered every day. As alarming and unacceptable as that statistic is, that number has fallen from a peak of violence in the early 1990s, when we averaged more than 24,000 murders per year. The conditions lingering from 2020 and 2021—­anxiety, depression, isolation, and despair—­will only amplify the violence in our nation. In a New York Times survey of 25 large cities across America, murder cases were up 16 percent over the year before.7 Preliminary FBI estimates show an overall 25 percent increase in killings in 2020. In King County in 2020,8 our homicide response team, which goes to most murder scenes to assist in the investigations, exceeded its 2019 totals by the end of July. We continued to file murder cases throughout the months of the 2020 isolation order. But while cases were coming into the system, few cases were resolved, leading to a historic backlog of pending felony cases threatening to overload the court system. Violence shapes our communities every day, but we seem to understand little about why it happens and how to prevent it. Prosecutors interested in reform have an obligation to understand violence and to work with partners in other disciplines to treat it as a public health challenge as well as a criminal matter. The causes of violence can be taught and prevented, but these are disciplines beyond our scope here. Instead, I want to mention three categories of violence that we have prioritized in my office: urban violence, domestic violence, and the abolition of capital punishment (state-­sanctioned violence). I will then discuss why prosecutors can promote the integrity and fairness of the system by establishing second-­look processes and developing mechanisms to support the recovery of victims of violent crime.

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Urban Violence

In his book Reflections on a National Epidemic, Dr. James Gilligan links the human tendency to resort to force to our need for self-­esteem. He observes that “[v]iolence is an attempt to replace shame with pride.”9 When a person has been insulted, or feels diminished or threatened by another, certain neurochemicals are released in the brain in response to that shame. Most of us have nonviolent means available to us to protect or restore our wounded self-­esteem. But if you did not have protective factors to help you recover from that shame, and if you were young with diminished capacity to resolve the flood of cortisol to your prefrontal cortex, and you were challenged and embarrassed in front of your peers, then a violent reaction to the external source of shame might seem like a natural, maybe even uncontrollable reaction. If you also had a gun in your pocket, then this momentary insult might prove life-­altering for all parties and bystanders. And, for a brief moment, while you were inflicting violence on the people who caused shame, there would be a sense of pride, of satisfaction, of the power of sweet revenge. The prisons in America are full of men and women who responded to their shame with violence in a few moments that forever and senselessly changed, or ended, lives. The people we convict of violent crimes are not violent most of the time. Their violence occurred in an episodic response to an incident that caused them dishonor and they did not know how to withdraw or deescalate the situation without furthering their sense of shame. Punishment will follow. But how do we prevent violence from happening in the first instance? For several years, we have been collecting and analyzing data from every act of gun violence in King County. Measuring these events reveals stark patterns of highly concentrated gun violence within communities of color and among young men. In King County, almost half of victims and people charged with gun violence were under the age of 25, and more than 75 percent of shooters and gunshot victims were people of color. Our analytics developed a social network of names of people most often associated with gun violence events. Many of the people in the network have not yet committed a crime but are nevertheless at high risk of violence. Once we became aware of this, we began a partnership with community organizations employing credible messengers doing street outreach. We have shared the names of young people who are at

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extremely high risk of violence with these organizations, and the county has helped to fund these outreach efforts. Since the people are not yet involved in the justice system, we do not ask for details about the intervention strategies or their individual measures of success, just that a connection be attempted. If we adopted a true public health approach to violence, we would teach our children and ourselves alternative ways to cope with stress, including how to deal with shame. We would learn that our physiological and neurochemical reaction to shame was normal and that we were not powerless to control an initial impulse to strike out against the source of the disrespect. This takes practice, role-­playing, modeling, and patience. We employ community-­credible messengers to engage with young people when they are first charged with felonies such as illegal gun possession, car theft, and robbery, which are often entry-­level crimes to more serious violence. The point of community intervention is to listen to young people who have been raised in environments where violence is common and where the fear of violence leads to decisions to carry guns. Credible messengers can challenge the notion that carrying a gun makes a young person safer, and they can offer alternative thoughts about responding to shame without violence. This needs to be funded as if it were a public health crisis, because it is.

Addressing Domestic Violence

The single best predictor of future violence is past violence, and one common denominator in the history of people convicted of serious violence is domestic violence. People who hurt the ones they supposedly love will have even less hesitation to use violence on people they do not know. The Domestic Violence (DV) Unit in our office is our largest, combining misdemeanor and felony matters, employing a team of victim advocates to make early contact with victims, and working on safety planning and protection orders. We partner with a network of community agencies, shelter providers, and other advocates to develop a coordinated strategy that serves the interests of survivors, law enforcement, and the community. Domestic violence was not always a priority for law enforcement, even though DV homicides account for about one-­third of our murders. The word “domestic” before “violence” was originally meant, in

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my opinion, to diminish the seriousness of this kind of violence and to minimize the public’s interest in violence that happened within a private domicile. This kind of violence was something less than “public” violence. Men beating the women and children they lived with was, for centuries, of no concern to the government. During the 1980s, attitudes and laws began to change. One change was to require the arrest of a DV suspect at the scene to remove the threat from the home. The response prior to the mandatory arrest rule typically involved the responding officers separating the parties temporarily and asking the man to walk around the block to cool off. Women were always the losers in these situations, whether or not they called the police. Now this practice, along with mandatory treatment for batterers, is being called into question as ineffective interventions that may make things worse for victims. Our response continues to develop to give victims the support they need to become survivors. When you examine domestic violence, even for a moment, you see that violence within the home is worse than general violence outside of an intimate partner relationship—­and has far-­reaching negative consequences for society. The effects of violence within the home, and the infliction of trauma on women and children, can last a lifetime and destroy feelings of safety and security. Domestic violence is an “adverse childhood experience” that can impact physical and mental health of those exposed to it for the remainder of their lives. How we encourage victims of DV to utilize our justice system, and how we actually assist in their increased safety, are important reforms included in our Third Pillar. Victim safety starts with disarming the abuser. We know the role that firearms play in the threats, intimidation, injuries, and death associated with DV. That is why we need to disarm people engaging in violence in the home. For thirty years, our Protection Order Advocacy Program has helped people living in fear of an intimate partner obtain a court order restraining the abuser. A more recent challenge for my office has been to enforce judicial orders to remove firearms from domestic violence abusers, as well as Extreme Risk Protection Orders. Women living in homes where there is both chronic domestic violence and a firearm are five times more likely to be murdered than women living in troubled homes without guns.10 Removing guns at the critical time of separation, and enlisting legal authorities to stop violence, will save lives.

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Extreme Risk Protection Orders, sometimes called “red flag laws,” allow a family member or the police to petition a court to order the temporary removal of a firearm from a person exhibiting symptoms of mental illness and homicidal or suicidal ideation. We have also used this law to disarm a self-­proclaimed neo-­Nazi who was training others to use military-­style rifles in what he called the “inevitable race war.” We also utilized the tool to disarm a potential mass shooter who posted photos and veiled threats on social media. The King County Prosecuting Attorney’s Office, partnering with local police and victim advocates, has a unit devoted to removing firearms from homes during dangerous times. The unit has learned to disarm subjects peacefully and no doubt has saved lives. Another critical innovation in prosecution is to provide DV victims priority access to an attorney to ensure that their civil legal needs are met. Nothing evens out the playing field in an abusive relationship like having an attorney to fight for the rights of the victim/survivor. Knowing that numerous legal issues can affect the life of a survivor of domestic violence, we have partnered with several civil legal aid providers to give priority attention to victims of domestic violence and sexual assault. Victims can become survivors more quickly when they have their own lawyer asserting their rights in areas the prosecutor cannot, such as domestic law, housing, employment, immigration, and benefits.

Ending the Death Penalty

Comprehensive criminal justice reform must also include the abolition of the death penalty. For much of the past three decades, I was a prosecutor in a state that had the death penalty as one of two options for punishment for the crime of Aggravated Murder in the First Degree. Aggravated murder meant usually that there were multiple victims or that the victim was a police officer. In Washington State, this ultimate punishment was rarely carried out, with only five people put to death in forty years, three of whom requested a speedy execution date. In 2010, I witnessed the execution of Cal Brown. As King County Prosecuting Attorney, I chose to sit alongside the family of the young woman Brown had kidnapped, tortured, and murdered nineteen years earlier. It was the second time the family had been summoned to the death chamber at the prison in Walla Walla. The first execution was

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stayed at 5 p.m., while we were in the parking lot. The death chamber in the penitentiary in Walla Walla has high ceilings because it once housed the gallows for hanging inmates. Cal Brown chose to receive a lethal injection, administered by the superintendent of the prison. I sat with the family of the victim and members of the media in this surreal setting and listened to his last words. After we watched Brown die, and the room went silent, the younger sister of the victim said: “Now we don’t have to think about him anymore.” The family had feared that the man who murdered their beloved daughter and sister would somehow be released or have his conviction reversed during the two decades they had to endure the legal process. At that moment, I realized two things: The death penalty had put this poor family through so much unnecessary anguish, and we could have provided the relief they needed with a life sentence, where the entire process would have taken about three years to complete. This process had just prolonged their grief and anxiety. Understanding the finality of death and the margin of error—­ whatever that might be—­in the criminal legal system, where all the moving parts are human, makes capital litigation unique. Seeking the death penalty has meant kick-­starting a defense effort that would involve multiple lawyers and staff and would deliver the keys to the county budget. “Death is different” goes the mantra. So, in the few cases where we received defense requests for additional funding and additional delays, we never objected. In our state the stakes were high, but the penalty was so rarely carried out that capital punishment was neither a deterrent nor a just punishment. In states such as Washington, where the public appetite for capital punishment was less fervent than in other states, it soon became apparent that the affluence of the county prosecuting the defendant was the most important determinant factor. In our state, county government is responsible for the costs of the criminal justice system, with the state government picking up only a tiny fraction of the costs. Smaller rural counties—­where, paradoxically, political support for the death penalty was highest—­were in no position to fund years of capital litigation. Newly elected prosecutors in those jurisdictions were quietly advised by county commissioners that there was no room in the budget for capital punishment and that the prosecutor should not think about seeking it, no matter what kind of egregious violence was involved in the crime.

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Cost is not the only problem. When viewed through the lens of America’s history of racial injustice, there is no doubt that the death penalty is also directly linked to our history of lynching and racial terror. It destroys trust in the communities most impacted by crime, and the racial disproportionality of men sentenced to death undermines attempts to justify capital punishment as fair and just. I realized that I could not simultaneously be a reformer and also support the death penalty. As president of our state prosecutors association, I was able to get support from most of the 38 other elected prosecutors to ask the legislature for a referendum. If we were going to embark on this long and expensive litigation to apply capital punishment, we thought, let’s find out if the citizens still want this law on the books. “No thanks,” said the legislature. Nobody wanted to call for the question—­proponents saw no need to vote, and abolitionists were afraid to lose that election in this deep-­blue state. Ultimately, the state supreme court did what the legislature could not do. It abolished the death penalty in a 2018 decision, State v. Gregory. In her lead opinion, Chief Justice Mary Fairhurst concluded: “The death penalty is unequally applied—­sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant.” She added: “Our capital punishment law lacks ‘fundamental fairness.’”

Taking a Second Look: Conviction Integrity, Clemency, and Excessive Sentences

The Third Pillar also includes the obligation to look at older cases that have gone through the office to ask whether the right person was convicted and also whether the sentence was fair and in line with modern practice. In our state, we have no parole system for most cases. So, if the prosecutor will not take a second look, then nobody will. Sentencing review includes systemic and independent examination of claims of wrongful conviction. Prosecutors can also initiate reviews for potential excessive sentencing, clemency and pardons, and resentencing motions to reconcile past sentences with modern practice. When I was first elected, in 2007, I asked my team to pull all the “Three Strikes” cases that had been prosecuted in our office since that law was passed. Washington State was the first to adopt such a law, by a

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citizens’ initiative in 1993. It called for a sentence of life without the possibility of parole (LWOP) for people convicted of their third crime from a list of “strike” offenses. This led to the possibility of an LWOP sentence for three second-­degree robberies. Prior to the three strikes law, the sentence for the third robbery was 15 to 20 months; afterward, it was LWOP. The only release mechanism written into the law was executive clemency, a power reserved for the governor of the state. Our interest in looking backward at old cases that had gone through the office with an eye toward rehabilitation and justice has created a robust clemency practice in our community, led by the nonprofit Seattle Clemency Project, which enlists private attorneys to handle these matters pro bono. We have just completed our twenty-­second successful commutation of an LWOP sentence under this law, thanks to the willingness of our state’s governors over the years to utilize this unique power. Twenty men and women were sent to die in prison for crimes on the three strikes list. The vast majority of those sentenced were people of color. Our willingness to support the release of these men and women, and the willingness of governors to agree, returned people to their communities and built immeasurable goodwill toward our office. Some of the people we helped release work with youth who are at risk of violence and arrest. Others have good jobs and are caring for their families. There is no guarantee, but the chance of recidivism can be reduced with proper reentry support.

Helping Victims of Violent Crime: Recovery through Meaningful and Sustained Support

Critics of criminal justice reform often accuse progressive prosecutors of being anti-victim. The reforms we are talking about most are focused on changing the way we respond to the people who commit crimes. But the safety—­and recovery—­of crime victims must be at the forefront of our efforts. Victims of crime are better served by a system that recognizes that the demographics of crime victims most often resemble the perpetrators of crime. Victims are often from the same neighborhood or the same family as the person who caused the harm. Sometimes they inhabit the same body—­people who simultaneously suffer harm and inflict it. Asking victims of violent crime to trust the

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justice system is a lot to ask. It has to be worth the risk to them and hold the potential to make their lives better. The groundbreaking surveys by the Alliance for Safety and Justice have answered the questions Who are crime victims? and What do they really want? It turns out that the vast majority of crime victims are poor and, more likely than not, are people of color. These surveys also revealed though that 70 percent of crime survivors prefer alternatives to prison such as community supervision and treatment, and 80 percent would support reducing sentences for people in prison who participate in rehabilitative programming. Mostly, crime victims express the desire for the person who committed the crime to stop doing harm. Recovery for crime victims cannot be limited to the sanctions imposed on the perpetrator. Crime victims may need immediate support and access to stabilizing services, things that we all need, such as housing, hope, and connections to people who care. Victims should have the option to participate in restorative justice events to facilitate their healing. The people whom we label “victims” are involuntary participants in our court system and often they are the most vulnerable and marginalized people in our community. The victims of violent crime may themselves already have a history of being involved in the justice system. These are the victims of crime for whom we are often the only voice. We plead with them to cooperate with us so that we can win our cases, and sometimes we threaten to incarcerate them with material witness warrants if they do not comply with the court process. Most of the people who are property-­crime victims do not know who stole from them. The same cannot be said for victims of violent crimes, including sex offenses. Most of these victims know the person who beat, strangled, shot, stabbed, raped, or molested them prior to the infliction of harm. They may fear ongoing harm from the men who hurt them, and some often receive threats based on their personal vulnerabilities, which could include immigration status and/or drug dependency. The prioritization of services to victims of violent crime is where American values of justice and compassion are severely tested. Although we spend $80 billion per year locking up people who commit acts of violence, we have mostly failed to step up to meet the true needs of people who were hurt. Helping victims of violent crime is yet another profound

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issue of equity and social justice. We have the power to build a response to crime that includes an opportunity to provide services and support to the victims who need it most—­and in the ways that they ask. Pretrial detention in local jails accounts for about two-­thirds or more of all local inmates. With the onset of COVID-­19, suddenly we needed to reduce the jail population to provide the distancing needed to protect incarcerated people and jail staff. In King County, we embarked on a project to reduce our average population from more than 1,900 to less than 1,300 and to keep it there. During this time, the state supreme court issued a rule to prohibit failure-­to-­appear warrants, which had an impact on the number of people booked. We also invested in CO-­LEAD, run by the same organization that runs LEAD, to take advantage of the sudden influx of motel capacity in our county. Dozens of people who had been in jail awaiting felony trials were released to housing and case management through this innovative program. County leaders have agreed to keep the jail population at 1,300 for two years to achieve necessary budget savings and to test the innovations that could lead to less reliance on pretrial detention. With twice the number of cases awaiting resolution and more than 170 murder cases to get to trial, some actor in the system had to take extraordinary action to maintain the ability to process cases with some adherence to speedy trial rules, which had been suspended for months during the pandemic. Of course, the only actor in the system who could dismiss hundreds of felony cases to clear the way for restarting the courts is the prosecuting attorney. As I write this, we are facing that daunting task of reviewing pending cases, as well as those ready to be filed, to weed out lower-­level cases to protect our capacity to try the most serious cases. The public outcry over a mass dismissal is predictable, but if individuals who were facing a felony charge have had no further arrests, they may get a break and not have to face a judge for their 2020 transgressions. That is the only way to focus our resources on the most violent cases and clear the path to regain court functionality. Only the gatekeeper can make that happen and ensure that the courts have the ability to do their work.

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Pillar Four: Make the Case for Prison Reform It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones. —­Nelson Mandela

If you take exception to my characterization of American policy makers as historically punitive, please consider as evidence the state of the prisons we have built and filled across the nation. Many are fortresses built during the twentieth century to warehouse large numbers of people all at once. Many modern prisons often have the characteristics of the so-­called supermax facility, with large wings designed for solitary confinement. Some prisons are run by for-­profit corporations, in an unfortunate trend of outsourcing punishment to the lowest—­and least accountable—­bidder. Prisons have been intentionally located in rural areas even though most incarcerated people are from the cities. They provide stable jobs for the local populations but further isolate the largely urban women and men sentenced there, removing them from their families and from a population base of potential volunteers to oversee rehabilitative programming. Running a prison system is not easy work, and it takes a significant effort just to hire and train enough corrections officers to staff cell blocks full of inmates. These corrections officers are not selected based on their ability to coach inmates but are instead trained to control them. It is common for the culture within institutions to become dehumanizing, tribal, and adversarial. Prisons are full of people who were shamed into an act of irreparable violence. In Washington State, 70 percent of the people in state prison are there for what we would call “violent” crimes: murder, aggravated assault, sex crimes, and armed robbery. Most are men—­more than 90 percent of inmates are male—­and most are guilty of the conduct that landed them there. These men who caused great harm in the free world were also most often the products of their own adverse childhood experiences and their own victimization. Few of the programs within the prisons designed to help inmates deal with their personal traumatic life experiences even though such self-­knowledge is a prerequisite to making the personal change we intend by the sentence of confinement.

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Punishment is a reflection of our values. If our goal of punishment is to have prison serve as a “one-­and-­done” experience, then we must envision, build, and sustain a new type of penal institution and prisoner experience. We cannot expect today’s institutions to truly be trauma-­ informed therapeutic environments where adults who were never stakeholders in society can learn to deal with their pain, control their impulses, adopt new critical thinking skills, and develop a useful trade to lead to gainful employment upon their release. Those goals will seldom be realized within America’s current prison culture. While DAs don’t run prisons, imprisonment is the end result of our criminal process. We are all consumers of the output of the Department of Corrections when defendants become inmates. We have a right and responsibility to understand what happens inside our state and federal prisons and to ask the big questions about punishment. We, as prosecutors, can start the movement toward a more humane system of incarceration and punishment by pursuing widespread public education about what prison is really like. That education should help the public understand prison here in the United States, as well as in more progressive countries such as Germany and Norway. I have personally visited many prisons over my career and sat in circles with men and women to better understand their experiences and the results of our criminal justice process. I have recently pledged to bring other prosecutors from our office and around the state to visit with incarcerated men and women and make such an experience a part of our office mandatory training curriculum. Prosecutors should not be reluctant to peer inside the prison walls for a better understanding of what we are recommending for another person’s life experience. Today our state, like many others in the United States, is running its prisons above the rated capacity and rationing rehabilitative programs due to budget cuts. Yet, there is no appetite for building new institutions. I recently challenged a legislative committee to take 1 percent of what it will cost to build the next prison (about $2.5 million) and allow us to invest that money into prison programming and reentry support. That is the kind of bold action that can reduce recidivism, improve public safety, and reduce the prison population. The political reality is that no elected official ever lost an election due to indifference to the conditions of state prisons. We continue to believe that recidivism is always the fault

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of the incarcerated person, never a benchmark measurement of state leaders who design and fund our system of punishment. We will know whether the movement of criminal justice reform is really a movement when candidates for state offices begin to articulate a new purpose for punishment and voice a concern over the current conditions and outcomes for the individuals within their state prisons.

Pillar Five: Invest in “No Return” Strategies to Enable Successful Reentry Recidivism is usually viewed as a behavioral problem—­a continuation of criminal conduct or a failure of rehabilitative transformation. Choice, motivation, and agency lie at the heart of this behavioral perspective. —­B ruce Western, Homeward: Life in the Year after Prison (2018)

Each year, we release about nine million people from county and city jails and more than 650,000 people from state and federal prisons. The national statistics measuring recidivism for these Americans are daunting: Nearly 68 percent will be rearrested within three years of release, and 83 percent will be rearrested within nine years. The unemployment rate for formerly incarcerated people is above 27 percent compared to less than 5 percent for the general population. The formerly incarcerated are also ten times more likely to be homeless compared to the general public.11 For these returning citizens, is recidivism really a choice they make? Or are there larger legal and social barriers working to return them to incarceration? The men and women who have done time and paid debts for their crimes continue to be punished, and continue to pay, long after they complete the sentences the courts imposed. Denied the things that we all need to stabilize our lives and succeed—­a place to live, a source of income, and a degree of hope for the future—­formerly incarcerated people can be trapped in a cycle of incarceration and reincarceration. If America were truly the land of second chances, we would insist on a better homecoming for people coming out of jail and prison. Supporting reentry is the only strategy that can limit the continued growth of mass

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incarceration, yet Americans and their elected leaders are largely indifferent to these statistics and the suffering underlying them. There are, however, obvious strategic investments that could improve the chances of an individual transitioning from incarceration. In Washington State, where we incarcerate at a rate that is about half the national average and where our prisons are nevertheless more than 100 percent full, the legislature created the Statewide Reentry Council several years ago. I serve as cochair along with a woman who was formerly incarcerated and is now an attorney and a candidate for the legislature. Our mission is to be the conscience of the legislature and to bring forth proposals to reduce the collateral consequences of a felony record that do not correlate to public safety. For several decades, legislators have restricted the opportunities of people with criminal records to obtain professional licenses, housing, and government benefits. In addition to state-­sanctioned discrimination, private discrimination abounds to keep people with felony convictions from applying for jobs, renting apartments, and even volunteering in their communities. Reentry reform includes an examination of the dozens of local and federal collateral consequences of felony records and also relief from excessive legal financial obligations, as well as regaining the right to seek professional licenses and, most symbolically, the right to vote. Disenfranchisement of people with felony records serves no criminogenic purpose and has a long history as a strategy to continue the political oppression of people of color. Two states—­Maine and Vermont—­allow incarcerated people to vote. There is no reason to continue preventing people from participating in the basic democratic society of which they are the product of and to which they will someday return. In many ways, incarcerated people experience firsthand the impact of the priorities of their elected officials and have a unique perspective on what needs to change to improve conditions for all of us. By providing ballots to incarcerated people, we send a powerful message that they have a stake in the community where they will someday return. Prosecutors should also engage in reentry reform by establishing units within their offices to assist formerly incarcerated people with vacating old convictions that trigger collateral consequences and to help them obtain relief from excessive legal financial obligations imposed in older cases. Recidivism is a shared failure of the individual wrongdoer and of

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the society that failed to define a purpose for punishment and to establish an end to that punishment. The fear and anger directed at people who break the law led us to build institutions to dehumanize people while they are incarcerated and to stack the deck against them upon their release. In the end, the public pays the cost for recidivism and the cycles of prosecution and punishment. The individuals and their families stuck in this cycle of reoffense represent a collective and predictable policy failure that we all must share. Reentry reform seeks to clear a path for a person who has been punished to regain a toehold in the community and to seek what we all need to be successful—­a place to live, a source of income, and a ray of hope that things will improve in the future. Overhauling America’s prison system, as suggested by Pillar Four, might be too daunting a task to begin. But smart new investments supporting customized reentry plans for returning individuals hold the promise of improving the rate of recidivism, reducing the incarcerated population, and increasing public safety. It is also a crucial test of American values.

Conclusion Prosecutors are not required by law to be agents of change. Most DAs still occupy the traditional roles in the case-­processing lane and successfully campaign on being “tough on crime.” The progressive prosecutors I know all face extraordinary institutional resistance from multiple sources, including police unions, elected officials, and the media. The newly elected DAs whom I have met are people of courage and conviction, and they endure a daily barrage of mean tweets, hate mail, and worse. This is especially true for the DAs who are women of color. The motivation to bring reform within the Five Pillars requires that elected prosecutors are willing to take a stand to correct a system out of balance. It must be about more than career success or political gain, because neither of those is guaranteed to the one who speaks the truth and works for change.

Criminal Justice Reform Means Building Something New Our efforts to change America’s justice system must always be rooted in an awareness of America’s history of racial injustice and the unbroken link

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of deeply embedded systemic efforts to oppress and marginalize communities of color, particularly the descendants of former slaves. America’s settlers from England fled the religious and economic repression forced on them by a king who claimed a divine right to rule over them, to force them into unpaid labor, and to incarcerate or kill them for their challenge to his rule. These same settlers who fled English tyranny had no qualms about their own right to murder and enslave Native Americans and to sell them into forced labor in the West Indies. And beginning in 1619, men and women kidnapped from Africa were sold as property throughout the new world. Even after the Civil War, where 1.5 million American casualties were suffered over the right to own another human being, the oppression continued. America is a land of paradoxes—­home of the free, unless you are a slave, an immigrant, or a “criminal.” There are many writers and activists now telling these truths about our history more powerfully than I can, and I have learned a lot from them. America owes reparations to the descendants and the modern communities of the people who were “legally” kidnapped, tortured, enslaved, and lynched. Their unpaid labor created great wealth for the nation, and their immeasurable suffering built American industry even as the laws written by white men continued their systemic oppression. After the Civil War, and the short-­lived period of Reconstruction, we experienced systematic and intentional acts of domestic terrorism to ensure that Black people knew that equality was not a serious promise. These acts of racial terror—­ brought so brilliantly to light by the modern work of Bryan Stevenson’s Equal Justice Institute—­were not crimes committed by individuals; they were sanctioned acts of violent oppression of Black people that were encouraged by those in authority, including district attorneys, most of whom did nothing in the face of a mob violence on the courthouse lawn. From the end of the Civil War until the end of World War II, many people in power in America recognized the political value in the more than 4,000 public murders of Black Americans by vigilante groups of white racists, yet they did nothing to dissuade it. It took skillful lawyers to expertly draft laws to marginalize Blacks despite the eloquent promises of liberty and justice for all. Attorneys are complicit as a profession in our history of racial injustice—­a nd they remain so today, unless we begin to dismantle the vestiges of racism baked into the DNA of our nation and its laws.

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2020 Vision and the Five Pillars of Criminal Justice Reform | 93

“2020 Vision” Means Do It Now and Go Big One obvious form of reparations is to reform the criminal laws that have disproportionate impacts on people of color. The legitimacy of our authority in communities most impacted by crime is at stake. When we ask people to dial 911, provide witness statements, and testify in court, they have to first believe that our system is fair and will treat them with dignity and respect. Another motivation for change must be articulated in terms of our shared value of public safety—­something we all support. Public safety is always the prosecutor’s top priority, and it is demonstrably enhanced by efforts to make our system fairer and more just. Where one stands on public safety may depend on where one lives. The reluctance of so many people impacted by crime to dial 911 and participate in our justice system should be a major concern to all policy makers. The greatest challenge we face is to build trust among the communities most impacted by crime and the police, prosecutors, and courts. Erecting the Five Pillars in partnership with the community is a good place to start. The movement of electing progressive prosecutors is an exciting and important phenomenon, but it is more interesting to think about its potential than to study what has been done so far. In truth, the reforms around the nation led by DAs have been modest, empowered by the exercise of prosecutorial discretion yet subject to political resistance from powerful actors. The essence of criminal justice reform is to envision a better response to crime, find partners in the community to help build it, and find the political will to sustain it. The Five Pillars of criminal justice reform require imagination. Albert Einstein said that “[i]magination is more important than knowledge. For knowledge is limited to all we now know and understand, while imagination embraces the entire world, stimulating progress, giving birth to evolution. It is, strictly speaking, a real factor in scientific research.”12 So, can we imagine a society where we deflect and divert some acts of criminal misconduct away from the courthouse and toward a community ready to construct a teachable moment? Can we imagine sustaining a public health response to our behavioral health crisis? For people struggling with addiction and mental health? Can we imagine a criminal justice system that is dedicated to fairness and transparency and embodies the humility to

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review its own work with that lens? Can we imagine prisons and punishment designed to repair broken people and teach them how to succeed in society? Can we imagine welcoming home people we sent to prison and investing in them to make them valued members of our community? You may say I’m a dreamer, but I’m not the only one. We have lost the trust and participation of the people most impacted by crime and seriously tested the legitimacy of our authority to wield power in those communities. The reform of the criminal justice system is one of the great civil rights issue of our times. Everything should be on the table as we scrutinize our local criminal justice system and envision a new approach that will share our power with our community, build trust, and improve public safety for all. Every prosecutor in America can begin this existential effort by erecting the Five Pillars of reform in their own jurisdiction. If not now, then when? If not us, then who? Notes

1 Lydia Saad, Substance Abuse Hits Home for Close to Half of Americans, Gallup (Oct. 14, 2019). 2 Pew Research Center, America’s New Drug Policy Landscape, Apr. 2, 2014. 3 Seattle Is Dying—­McNeil Island, KOMO News, Apr. 10, 2019, https://m.youtube. com. 4 Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative (2020), https://ballotpedia.org. 5 Josh Katz, Abby Goodnough and Margot Sanger-­Katz, In Shadow of Pandemic, U.S. Drug Overdose Deaths Resurge to Record, NY Times (July 15, 2020). 6 Danielle Sered, Until We Reckon, Violence, Mass Incarceration, and a Road to Repair (2019). 7 Jeff Asher and Ben Horwitz, It’s Been ‘Such a Weird Year.’ That’s Also Reflected in Crime Stats, NY Times, (Aug. 24, 2020), www.nytimes.com. 8 Lois Beckett and Abene Clayton, US Saw Estimated 4,000 Extra Murders in 2020 Amid Surge in Daily Gun Violence, The Guardian, March 24, 2021. 9 James Gilligan, M.D., Violence: Reflections on a National Epidemic (1997). 10 Sarah Mervosh, Gun Ownership Rates Tied to Domestic Homicides, but Not Other Killings, Study Finds, N.Y. Times (July 22, 2019). 11 Timothy Hughes and Doris James Wilson, U.S. Bureau of Justice Statistics, Reentry Trends in the U.S., www.ojp.usdoj.gov (2002). 12 Albert Einstein, Einstein on Cosmic Religion and Other Opinions and Aphorisms 97 (2009).

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3

Transforming the Culture Internal and External Challenges to a New Vision of Prosecution Angela J. Davis

Prosecutors wield the most power in the criminal legal system. They control the justice system through their charging and plea-­bargaining choices because they have almost unlimited authority and discretion when making those decisions. When one considers the fact that up to 98 percent of all criminal cases resolve through guilty pleas,1 it is not much of a reach to say that prosecutors come close to predetermining the outcome in the vast majority of criminal cases. Given that reality, the largely unchecked discretion of prosecutors cannot be understated. When a prosecutor decides to charge an individual with a crime, she brings that person into the criminal justice system with all of its very serious consequences: the possibility of jail or prison, a criminal conviction, and all of the debilitating collateral consequences of that conviction. The prosecutor decides whether a person will be charged and what the charge will be. She decides whether there will be a plea bargain and what that deal will be. These decisions, made behind closed doors, often occur with little or no accountability to anyone other than to other prosecutors. The lack of transparency in the exercise of these all-­important responsibilities can lead to abuse. The United States Supreme Court recognized this potential in Berger v. United States. The Court made plain that it is the duty of the prosecutor not to seek convictions but instead to seek justice.2 How one defines seeking justice traces directly to the office’s culture. Too often, abuses have occurred because of a prosecutorial culture that defines success by the rate of convictions. Few would disagree that the criminal justice system’s reliance on mass incarceration has been flawed and the system needs fundamental reform. The United States boasts the 95

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highest incarceration rate in the world with 2.1 million people in its prisons and jails and 4.5 million people under some form of supervision—­ either probation or parole.3 Stark, unwarranted racial disparities plague every step of the justice process, from arrest through sentencing. People of color represent 37 percent of the general population, yet they make up 67 percent of the prison population. Black men are six times as likely to be incarcerated as white men, and Latino men are twice as likely to be incarcerated as white men.4 Although the causes of mass incarceration and racial disparities are complex and varied, the policies and practices of prosecutors have greatly contributed to these problems. The charging and plea-­bargaining decisions of prosecutors play a critical role. When a prosecutor chooses to charge an individual with a crime and to engage the formal legal system, she contributes to the phenomenon of mass incarceration. When a prosecutor chooses to charge one individual with a crime but declines to charge another similarly situated individual accused of the same crime, she creates an unwarranted disparity. Prosecutors have not traditionally engaged in the sort of reflection that might lead to system change. Instead of examining their role in contributing to mass incarceration and racial disparities, they have been content to operate in a reactive mode. Police make arrests and bring cases to the prosecutor, and the prosecutor decides whether to charge, often making decisions based on the recommendations of police officers. Prosecutors see themselves as making pragmatic choices driven by circumstance. Larger goals take a backseat or are simply someone else’s responsibility. As a consequence, few prosecutors think about the impact of their decision-­making on the broader problems in the criminal justice system or their power to effect positive change and needed reforms. However, implicit in these case-­by-­case decisions are patterns and practices that fundamentally shape the operation of the justice system. In recent years, some elected district attorneys (in some jurisdictions, state’s attorneys or commonwealth attorneys) have committed to a new model of prosecution—­one that views the prosecutor’s responsibility to “do justice” as including a commitment to fairness and racial equity in the criminal justice system. These so-­called progressive prosecutors ran for office on criminal justice reform platforms, promising to use their power and discretion to implement policies to reduce the incarceration

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rate and to make the system fairer for all. Many of them unseated incumbents who had served for many years, demonstrating public support for a new breed of prosecutor who will work to transform the criminal justice system. It should come as no surprise that these prosecutors have faced opposition—­both during their campaigns and after their elections. They undoubtedly knew that they would be challenged and would be seen as a threat to the status quo. However, few anticipated the virulence of the criticism and attacks. Police unions, police departments, city and county councilmembers, mayors, and judges have engaged in open attacks. The most recent former president of the United States and the former United States Attorney General used their bully pulpits to level criticisms against them. These progressive prosecutors have also faced hostility from the assistant district attorneys within their own offices who worked under previous district attorneys. Probably the most surprising critiques have come from some of the voters who elected them—­ many of whom were impatient for change and disappointed when the elected prosecutors were not acting as quickly as they expected. This chapter examines the progressive prosecution movement, exposing the internal and external challenges facing the movement in general and the particularized racial and sexist attacks leveled against women of color. It will also propose ideas for resolving the many challenges that progressive prosecutors face to provide needed support to this nascent and important reform movement.

Defining the Progressive Prosecution Movement State and local governments prosecute 90 percent of all criminal cases in the country. The vast majority of prosecutors are elected officials. Although, in theory, the electoral process should serve as the mechanism of accountability for prosecutors, it rarely does. First, the most important decisions—­charging and plea-­bargaining—­occur out of sight and behind closed doors. The lack of transparency in the prosecution function makes it nearly impossible for the average voter to see what prosecutors do or to understand how they make decisions. So, it is difficult for their constituents to hold them accountable or in check. Second, many district attorneys run for office unopposed and then run

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for reelection as incumbents. These prosecutors rarely devote much time to campaigning given the lack of opposition. On the rare occasions when they have faced a challenger, they have tended to run on very broad public safety and “tough on crime” themes. The communities most impacted by prosecutorial practices and policies rarely enjoy the opportunity to question the district attorneys about the work they do, the choices they make, and the impacts on the communities within their jurisdictions. The net result is that the same district attorney may serve for decades with little accountability or turnover.5 In recent years, however, district attorney races have begun to change. Organizations such as Color of Change and the ACLU6 have worked to inform the public about the critical role of the prosecutor in the criminal justice system and the importance of district attorney races. Since 2015, at least two dozen incumbent DAs who served for decades as traditional law-­and-­order prosecutors have faced challenge and defeat by individuals who promised to implement a progressive agenda that would reduce the number of people in prisons and jails. More and more incumbent prosecutors face challengers, and many of them now understand that a substantial percentage of voters wants a different model of criminal justice—­one that provides alternatives to incarceration for nonviolent offenders, rehabilitation and treatment for those who need it, and fair treatment of victims and defendants.

Identifying the Common Levers for Change There should be no litmus test for determining who qualifies as a “progressive” prosecutor. However, a number of common issues have emerged from the field as the progressive prosecution movement has taken hold. These issues include cash bail, charging decisions, diversion programs, wrongful convictions, the death penalty, juvenile justice, and police accountability. Obviously, not all progressive prosecutors address these issues in precisely the same way or to the same degree. As elected officials, they represent their constituents, and the appetite for criminal justice reform varies from jurisdiction to jurisdiction. Some jurisdictions looking to initiate reforms may move more conservatively than others. Thus, progressive prosecution in Columbus, Mississippi, will likely not track what occurs in Philadelphia, Pennsylvania. Similarly, if

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the district attorney enacts policies that her constituents do not accept, she may face backlash during the next election. Voters may choose to abandon progressive prosecution and resort to the traditional model of prosecution. The successful implementation of many new policies requires the cooperation of the community and other officials in the criminal justice system. In the end, any prosecutor who works to implement the most effective policies possible in her jurisdiction that will reduce the number of fewer people in prisons and jails, eliminate racial disparities, and achieve fair treatment for both victims and defendants should be viewed as a “progressive prosecutor.” Let’s take a closer look at the range of issues that progressive prosecutors frequently look to address in the movement toward fairer prosecutions.

Cash Bail The use of cash bail has emerged as an important issue in the criminal justice reform movement. In most states, persons who are arrested must pay cash bail to be released, even though they are presumed innocent. If a person cannot afford the amount set by the judge, she will remain in jail until the court resolves the case. Many individuals, detained for minor offenses, simply cannot afford bail, whereas those charged with more serious offenses who can afford to pay will be released. This results in wealth-­based incarceration. The consequences of a single bail decision can have far-­ranging consequences for the defendant’s case and subsequent life. Many detained defendants who cannot post bond feel pressured to accept plea bargains to obtain their release, but that choice means incurring a conviction just to get out of jail. Not surprisingly, given the racial and economic inequities in this country, people from marginalized communities and people of color are disproportionately detained pretrial. Most progressive prosecutors across the country have run on the promise to reform the bail systems in their jurisdictions. Soon after she took office, Cook County State’s Attorney Kim Foxx announced that her office would support the release of individuals charged with nonviolent offenses who were detained pretrial because of their inability to post

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bonds of $1,000 or less. She also issued guidelines to the prosecutors in her office, ordering them to ask for pretrial release in appropriate cases.7 San Francisco District Attorney Chesa Boudin implemented a more sweeping bail policy, forbidding the assistant district attorneys (ADAs) in his office from requesting cash bail in any case. The policy does permit ADAs to request pretrial detention for individuals charged with certain violent offenses who they believe pose a danger to the community or who may be a flight risk.8 Other progressive prosecutors have implemented bail policies that occupy various points on the spectrum between the policies of Foxx and Boudin.9 But the overall goal involves reforming the cash bail system to avoid monetizing pretrial freedom and criminalizing poverty and to reduce the racial impacts of pretrial detentions.

Charging Policies and Diversion Diversion programs and specialty courts have operated for decades. Almost all jurisdictions have some form of diversion that involves the dismissal of the case upon the fulfillment of certain conditions. Most jurisdictions divert first-­time offenders charged with low-­level offenses. While important, these programs have not put even a dent in the mass incarceration problem. Likewise, the specialty courts in most jurisdictions that seek to rehabilitate defendants with substance abuse, mental health, and other problems and keep them out of prison have not substantially reduced the prison population. Some have even been criticized as being ineffective. Progressive prosecutors have sought to expand the use of diversion programs and to change their nature to include individuals charged with more serious offenses who may not be first offenders. Some also have declined to prosecute individuals charged with low-­level and nonviolent offenses and have made other changes in their charging policies to decrease the incarceration rate. For example, Suffolk County District Attorney Rachael Rollins issued a list of fifteen mostly low-­level offenses that she would decline to prosecute, absent exceptional circumstances.10 The list includes minor misdemeanors such as trespassing, petty larceny, and drug possession, but it also includes drug possession with intent to distribute. State’s Attorney Foxx declined to charge retail thefts as felonies unless the value of the property was at least $1,000 or the defendant

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had 10 or more prior felonies, even though Illinois law permits felony retail theft charges for property worth $300 or more.11 King County Prosecuting Attorney Dan Satterberg cofounded the Law Enforcement Assisted Diversion (LEAD) program, which involves police officers immediately directing individuals in possession of less than a gram of illegal drugs or engaged in prostitution to needed services.12 Individuals in the LEAD program are never booked, charged, or brought to court. Philadelphia District Attorney Larry Krasner issued a comprehensive and detailed memorandum to his ADAs, implementing charging, plea-­bargaining, and sentencing policies to reduce the number of individuals in the criminal system and the length of their sentences.13 He announced that he would no longer charge marijuana possession, possession of marijuana paraphernalia, and prostitution (if the defendant has fewer than three prostitution convictions). Krasner also instituted a policy in homicide cases of charging only the level of homicide that can be proven beyond a reasonable doubt. The purpose of this policy was to end the common prosecutorial practice of overcharging in order to gain an advantage at the plea-­bargaining stage. Krasner also requires ADAs to obtain his approval for any plea offer that exceeds 15 to 30 years in prison. Brooklyn District Attorney Eric Gonzalez launched Justice 2020, another criminal justice reform initiative. The initiative’s launch committee included community members, formerly incarcerated people, and members of the police department who all provided input. One of the initiative’s goals is to “make jail ‘the alternative.’”14 Gonzalez’s directives include offering pre-­plea diversion for all drug possession cases, sealing or expunging marijuana convictions, and recommending parole when a defendant has completed the minimum sentence. Once again, although the methods vary, the common overarching goal is to create meaningful alternatives to the formal legal system of convictions followed by incarceration. These progressive prosecutors are working to reimagine ways to address unlawful behavior while still working to keep communities safe.

Wrongful Convictions More than 2,500 wrongfully convicted people have been exonerated since 1989.15 One of the leading causes of wrongful convictions is

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prosecutorial misconduct. Other causes include mistaken eyewitness identification and faulty forensics. Many progressive prosecutor offices have established Conviction Integrity Units (CIUs) to identify, remedy, and prevent wrongful convictions. There are about 50 CIUs in prosecutor offices across the country. About half operate in offices that are not run by progressive prosecutors. However, almost all district attorney candidates running on a progressive platform have pledged to establish a CIU within their offices. Conviction Integrity Units must be properly staffed with sufficient attorneys to be effective.16 For example, former US Attorney for the District of Columbia Ronald Machen opened a CIU in 2014 and assigned two attorneys to investigate wrongful conviction claims. To this day, the unit has not dismissed a single case. Similarly, the Sacramento District Attorney’s Office opened a CIU in 2013 and has yet to produce an exoneration.17 By contrast, State’s Attorney Kim Foxx’s CIU deployed a full team to examine cases. Their work culminated in the office dropping charges against eighteen wrongfully convicted men on November 16, 2017—­Chicago’s first mass exoneration.18 She also publicly and privately apologized to them, even though she was not personally responsible for the convictions. Larry Krasner dismissed charges against ten wrongfully convicted men since taking office.19 Because CIUs often investigate cases alleging misconduct by current or past members of their offices, it is important that they are run by individuals from outside the prosecutor’s office. That outside perspective helps the unit fight the instinct to protect one’s own. Some chief prosecutors have actually reached across the adversarial line to hire former defense attorneys to run their units and to collaborate with local offices of the Innocence Project to free the wrongfully convicted. As progressive prosecutors’ offices set about making reforms, they remain mindful of the need to rebuild trust in the integrity of the system. They do so by identifying and taking steps to remedy, correct, and prevent false convictions.

The Death Penalty Shortly after Orlando State Attorney Aramis Ayala took office in 2016, she publicly announced that she would never seek the death penalty.

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Then–­Governor Rick Scott promptly transferred all death-­eligible cases from her office to a state’s attorney in a different county. Ayala challenged his decision, but the Florida Supreme Court ultimately ruled in the governor’s favor.20 Like Ayala, some progressive prosecutors in jurisdictions where the death penalty is a sentencing option have made the decision not to bring capital cases. George Gascon, recently elected district attorney in Los Angeles, ran on a platform promising not to seek the death penalty in murder cases and to work to resentence those who had previously been condemned to death in Los Angeles County. His reasons for opposition mirror those of other progressive prosecutors: (1) It is a failed and costly policy; (2) it does not deter violent crime; (3) it is racially biased; and (4) it risks executing innocent people.21 However, some see it as too politically risky to take a hard position against the death penalty when running for office, especially after Ayala’s experience. Some progressive prosecutors have privately stated that they would never seek the death penalty, but when asked about the issue in public they have stated they would use discretion in each eligible case.

Juvenile Justice All states have a provision that permits prosecutors to charge juveniles as adults. The laws vary from state to state. Some provide that juveniles may be automatically charged as adults for certain offenses, while others permit prosecutors to file motions to transfer juveniles to adult court. The minimum age for charging juveniles as adults also varies from state to state. Prosecutors have total discretion when deciding whether to charge juveniles as adults. In 2012, in Miller v. Alabama, the United States Supreme Court held that juveniles may not be sentenced to a mandatory sentence of life without parole.22 Consequently, all juveniles serving mandatory life without parole had to be resentenced. Many have been resentenced to very lengthy sentences that are the near-­equivalent of life without parole. Many progressive prosecutors take the position that no juvenile should be charged as an adult and, after Miller, have committed to seeking a resentencing that would provide care and rehabilitation consistent with a juvenile disposition. Larry Krasner offered deals to many of the juvenile

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lifers that would make them immediately eligible for release. However, judges in some of these cases rejected such deals.23 It is extremely rare for judges to reject otherwise legal plea bargains.

Police Brutality and Other Police Misconduct Few issues have received more attention in recent years than the use of excessive force by police officers. It is difficult to estimate the number of people killed by police each year because no national database for police shootings exists and there is no requirement that police departments report such shootings. However, existing data reveals that police shoot and kill Black Americans at more than twice the rate of white Americans.24 Hispanic Americans are also killed at a disproportionate rate.25 From the time of slavery to the lynchings of the nineteenth and twentieth centuries to the present day, Black people have been unlawfully killed by police officers and other law enforcement agents who were sworn to uphold the law.26 Although these killings have persisted for centuries, they have received renewed attention in recent years because of cell phone cameras and social media. The Black Lives Matter movement, founded in 2013 in response to George Zimmerman’s acquittal of the murder of Trayvon Martin, has led the struggle to end these killings and to hold guilty police officers accountable. Despite numerous protests27 and some legislative efforts,28 the killings have persisted with remarkable frequency.29 Prosecutors bear responsibility for holding police officers accountable. Sadly, most of them have not. They rarely charge the officers,30 and in the few cases in which prosecutors have brought charges, juries have rarely convicted.31 In fact, the many protests around the country were as much about prosecutors’ failure to charge the police officers or to secure a conviction as they were about the killings themselves.32 A number of reasons explain prosecutors’ hesitancy to charge police officers. One reason is the existing professional relationship between prosecutors’ offices and police departments. Police and prosecutors serve on the same law enforcement team. Prosecutors rely on police to investigate cases and to testify as witnesses at trial. Police unions often contribute to prosecutors’ campaigns when incumbents are running for reelection.33 Thus, there is an inherent conflict of interest when pros-

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ecutors investigate police misconduct, prompting calls for independent prosecutors or state attorneys general to investigate these cases. Some former chief prosecutors have suffered the consequences of their failure to charge police officers who killed unarmed individuals. They were voted out of office. Former Cuyahoga County Prosecutor Timothy McGinty declined to charge the officers who killed 12-­year-­old Tamir Rice in 2014. When Michael O’Malley ran against McGinty in 2016, McGinty’s failure to prosecute the officers became an important issue in the campaign. O’Malley won the election and unseated McGinty. Similarly, former Cook County State Attorney Anita Alvarez delayed charging the officer who killed 16-­year-­old Laquan McDonald for more than a year. She brought charges only after a judge ordered her to release a videotape that revealed clear evidence of officer Jason Van Dyke’s guilt. State Attorney Kim Foxx ran against Alvarez on a progressive platform to reform the criminal justice system. There were many allegations of misconduct against Alvarez, but Alvarez’s handling of the Van Dyke case undoubtedly contributed to her defeat.34 Progressive prosecutors should hold police officers accountable for misconduct and should bring criminal charges when appropriate, regardless of the nature of the misconduct. If police officers break the law, they are criminally liable, as anyone else would be. If there is an actual or perceived conflict of interest, an independent prosecutor should be enlisted to investigate and prosecute cases brought against officers. Some progressive prosecutors have already made good on campaign reform promises by holding offending police officers accountable. For example, Ramsey County Attorney John Choi charged the police officer who killed Philando Castile.35 Larry Krasner has charged police officers with homicide and has also charged police officers for engaging in illegal stop-­and-­frisk practices.36

Unpacking the Internal and External Challenges Facing Progressive Prosecutors Like any new leader who wants to implement sweeping changes, newly elected progressive prosecutors face the challenge of transforming offices full of ADAs with entrenched views about what it means to be a prosecutor. After all, many ADAs have been working in the same offices for years

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and have become accustomed to following the traditional model of prosecution. Many were loyal to their former bosses and believed in the work they were doing. Understandably, they would be apprehensive about, if not hostile toward, a new leader who criticized their work and promised to put an end to some of the work they had been doing for years. However, when the newly elected prosecutor has never worked in the office and does not have preexisting relationships with the ADAs, she is seen as an outsider and will find it more difficult to implement a new vision of prosecution. This is especially true if the newly elected prosecutor has never served as a prosecutor. Such was the experience of Larry Krasner. Krasner started his career as a public defender. When he ran for district attorney of Philadelphia in 2017, he was a civil rights and criminal defense attorney who frequently sued the Philadelphia Police Department. Krasner had not only never served as a prosecutor; he was a fierce adversary of the Philadelphia District Attorney’s Office. A number of ADAs publicly opposed his candidacy. Krasner fired 31 ADAs during his first week in office and immediately began the process of hiring a team committed to implementing the changes he promised to fulfill. By spring 2018, 80 staff members had left the office. Two individuals claiming to be ADAs in Krasner’s office opened anonymous Twitter accounts and attacked Krasner and his new policies. Krasner pressed forward, hiring new staff who believed in his vision. In addition to the obstacles to change emanating from within the prosecution offices, newly elected progressive prosecutors can face opposition from numerous external sources. Some of these opponents oppose change, while others expect change at a quicker pace than the prosecutor has been able to deliver. The most vocal opponents often include police departments, police unions, city and county council members, district attorneys from other jurisdictions, and even judges. Progressive prosecutors can also face challenges from the voters who elected them if they do not deliver on the promised reforms. Rachael Rollins, the district attorney for Suffolk County, Massachusetts, was elected in 2018. During her campaign, she pledged to work toward ending mass incarceration and unwarranted racial disparities in the criminal justice system. Rollins also promised to decline the prosecution of 15 nonviolent offenses absent exceptional circumstances. One of the most extreme oppositions to her pledge occurred before she was

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even sworn in. On December 23, 2018, an Indiana-­based police organization filed a complaint against her with the Office of Bar Counsel, arguing that her decision to decline prosecution of the 15 offenses constituted attorney misconduct.37 After Rollins implemented the policy, Massachusetts Public Safety and Security Secretary Thomas A. Turco III harshly criticized her and claimed that she was putting crime victims at risk. Rollins even faced challenges from the bench. During her first year in office, she moved to dismiss a disorderly conduct charge against a counterprotester. A municipal court judge refused to dismiss the charge, and Rollins filed a petition with the Massachusetts Supreme Judicial Court. The higher court ruled in Rollins’s favor, noting that “[t]he prosecutor’s sole authority to determine which cases to prosecute, and when not to pursue a prosecution, has been affirmed repeatedly by this court since the beginning of the nineteenth century.”38 Larry Krasner faced external challenges from those who opposed his policies and from those who supported them. The Philadelphia Police Department, the Philadelphia chapter of the Fraternal Order of Police (FOP), and the US Attorney for the Eastern District of Pennsylvania were among the many criminal justice organizations and officials who vehemently opposed Krasner’s new vision of prosecution. The FOP filed a lawsuit against Krasner, and US Attorney William McSwain publicly castigated Krasner and his office. Krasner also faced opposition from progressive groups who were disappointed in his decision to oppose a new appeal by the incarcerated activist Mumia Abu-­Jamal. Krasner was even disinvited from the “Rebellious Lawyering” conference at Yale Law School because of his opposition to Abu-­Jamal’s appeal.39 The experience of Dallas District Attorney Jon Cruezot also exemplifies the difficulties prosecutors face when they are challenged from both ends of the spectrum. Cruezot, a former judge and prosecutor, ran on a progressive platform. After assuming office, he began to implement promised reforms, including declining the prosecution of certain low-­ level thefts and dismissing more than a thousand marijuana cases.40 The president of the Dallas Police Association and even the governor of Texas spoke out against Cruezot’s policies. The governor eventually sent troopers from the Texas Department of Public Safety to Dallas to “assist” with policing, resulting in more than 11,000 citations being issued to Dallas residents. In addition to the police and the governor,

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Cruezot’s critics included members of Mothers Against Police Brutality and other community groups who criticized him for failing to bring charges against a number of police officers who were involved in the fatal shootings of Dallas residents.

Special Attacks Rooted in Racism and Misogyny But perhaps the most vehement and extreme reactions have targeted Black women chief prosecutors. Many who oppose these prosecutors and their policies have unapologetically resorted to explicitly racist and sexist vitriol and personal threats in an effort to intimidate them. Cook County State’s Attorney Kim Foxx has been attacked by several groups, including Chicago chapter of the Fraternal Order of Police. On April 1, 2019, it sponsored a rally against Foxx. Members of three white nationalist groups—­the Proud Boys, the American Guard, and the American Identity Movement—­attended the rally and carried “Foxx Must Go” signs. The Southern Poverty Law Center and the Anti-­Defamation League have identified members of these groups as either white nationalists or white supremacists.41 Foxx also received death threats that included racist language after she dismissed charges against the actor Jussie Smollett (discussed below).42 State Attorney Aramis Ayala in Orlando received a threatening letter with racist language after she announced her decision not to seek the death penalty. A week later, Ayala received a second envelope that appeared to have come from the same person. The second envelope contained a noose made from green twine taped to a postcard.43 Baltimore City State Attorney Marilyn Mosby received a racist voice-­ mail message criticizing her for attending and speaking at a rally in support of St. Louis Circuit Attorney Kim Gardner. The caller used racist and sexual slurs. The voice mail ended with this: “If we’d known you all were going to be this much f-­-­-­-­-­g trouble, we would have picked our own f-­--­ ­--­ ­g cotton.”44 Although many Black women chief prosecutors face attacks that are implicitly or explicitly racist and/or sexist, none have been as extreme as those faced by St. Louis Circuit Attorney Gardner, who became the first African American circuit attorney in the city’s history. Gardner ran on a criminal justice reform platform, promising to take action to reduce the

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city’s racially disproportionate jail and prison population and to implement other reforms to make the system fairer for all. Soon after she took office in 2017, Gardner was attacked by the St. Louis Police Department and the St. Louis Police Officers Association (the department’s union). Members of the police department, which is 66 percent white, had been engaging in racist behavior even before Gardner was elected. Between 2014 and 2019, more than 40 current and former St. Louis police officers posted racist messages on Facebook, including one suggesting that African Americans should move to another country to “pay their own welfare.”45 Other posts declared “Black Lives Splatter Because Blue Lives Matter.”46 St. Louis’s police department and police union began their confrontations soon after Gardner took office. They publicly criticized her decision to decline prosecution in cases that relied on the investigation performed by 28 officers, each with a history of lying in their police reports and under oath. The police union issued a statement alleging that Gardner “has refused to do her job, put criminals ahead of the public, put police officers in unnecessary danger, acted unethically, lied to the public, misused public resources, lied in Court of Law, ignored the rule of law and undermined the fundamental safety of the citizens of St. Louis.”47 Jeff Roorda, the business manager of the police union, threatened Gardner during a radio interview, proclaiming that she should be removed from office “by force or by choice.”48 The attacks escalated when Gardner began an investigation of former Missouri governor Eric Greitens. Greitens’s hairdresser had accused him of sexual assault, taking photos of her nude body, and threatening to share the photos publicly if she exposed their affair. When the police department and FBI refused to investigate, Gardner hired William Tisaby, a former FBI agent, to assist. Members of the police department accused Tisaby of lying under oath and tampering with evidence with Gardner’s knowledge. They requested that a judge appoint an independent prosecutor to investigate Tisaby and Gardner. The judge agreed and appointed Gerald Carmody, a close friend of Greitens’s attorney. As part of the investigation, the police department executed a search warrant in Gardner’s office and seized the email server that contained all of her employees’ emails and the files of investigations of police misconduct. Tisaby was ultimately indicted for perjury. Governor Greitens resigned in May 2018.

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During Gardner’s investigation of the allegations against Greitens, she received a number of racist, threatening letters. One letter called her a “crooked, lying, NIGGER C-­-­-­” and a “lowlife NIGGER BITCH.”49 Another letter called her a “dumb s-­-­-­burr head” and a “dumb nigger bitch” and further stated “you’re not going to beat these white boys.”50 Yet another letter contained an explicit threat, declaring that “[i]f you don’t leave something will be done about you.”51 On January 13, 2020, Gardner filed a federal lawsuit against the City of St. Louis, the police union, Carmody, Roorda and others, alleging a violation of 42 U.S.C. §1985. The lawsuit accuses the defendants of a “racially motivated conspiracy” and alleges that they have attempted to “remove her from the position to which she was duly elected—­by any means necessary—­and perhaps to show her successor what happens to Circuit Attorneys who dare to stand up for the equal rights of racial minorities in St. Louis.”52 Three days after the lawsuit was filed, Gardner received yet another threatening letter rife with racist and sexual invective, including “You are a low life crooked lying nigger bitch!” and “Get out Nigger C-­-­-­! Nothing but a Black nigger slut. Plus—­no brains—­just air.”53 Eleven elected Black women prosecutors issued a statement of support for Gardner, and many of them came to St. Louis to attend a rally with her supporters on January 14, 2020, the day after the lawsuit was filed. The statement noted that Gardner’s experience is “emblematic of the types of attacks that we, as Black women prosecutors, have faced around the country.”54 Several chief prosecutors spoke at the rally describing their own experiences. A number of white male progressive prosecutors have acknowledged that they have not faced the same level of vitriol as Black women elected prosecutors. Larry Krasner stated: “It’s obvious that a lot of Black women prosecutors are facing racism and sexism. . . . To the best of my knowledge, none of the other progressive prosecutors have faced the daunting proposition of police coming into their offices with warrants and seizing servers.”55

Attacks on the Legitimate Exercise of Prosecutorial Discretion Most elected progressive prosecutors ran for office because they understood the almost limitless power and discretion of prosecutors and they

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wanted to wield that power and discretion to transform the criminal justice system. They believed that, once in office, they would redirect that discretionary might to decline prosecutions, dismiss cases, free the wrongfully convicted, and make other decisions that would reduce the jail and prison population. Although they undoubtedly expected some opposition, few anticipated the intensity of the backlash. Some of the judicial responses to the decisions of progressive prosecutors have been both surprising and hypocritical. The United States Supreme Court consistently has upheld the power and discretion of prosecutors. According to the Court in Bordenkircher v. Hayes, “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”56 In United States v. Armstrong, the Court cited United States v. Chemical Foundation, Inc. for the proposition that “[t]he presumption of regularity supports” prosecutors’ decisions and that “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”57 In Armstrong v. United States,58 McCleskey v. Kemp,59 and other cases, the Court repeatedly affirmed prosecutorial discretion. Armstrong, McCleskey, and Bordenkircher all involved criminal defendants challenging the exercise of prosecutorial discretion. Mr. Armstrong sought discovery to support his claim of selective prosecution based on race. Mr. McCleskey alleged that the prosecutors sought the death penalty in ways that discriminated based on race. Mr. Bordenkircher challenged the constitutionality of a prosecutor’s threat to charge him with more serious offenses if he declined a plea offer. In each case, the Court upheld the prosecutors’ decisions against the accused, affirming prosecutors’ power to exercise discretion as they saw fit. However, when progressive prosecutors looked to exercise discretion to withhold or narrow prosecutions to “move conduct better addressed with public health responses out of the justice system,”60 some courts have responded negatively. In a number of cases involving progressive prosecutors’ attempts to free the accused, lower courts attempted to restrain their discretion, contradicting a consistent line of Supreme Court cases. Interestingly, when a lower court judge attempted to reject District Attorney Rachael Rollins’s decision to dismiss a disorderly conduct

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charge, that ruling was immediately reversed by the highest court in Massachusetts. However, judges’ decisions to restrain the decisions of progressive prosecutors in other cases have not yet been overturned. State Attorney Kim Foxx dismissed charges against the actor Jussie Smollett, who reported to police that he had been the victim of a homophobic and racist attack. Smollett allegedly staged the attack and was charged with 16 counts of felony disorderly conduct. Foxx recused herself from the case because of conversations she had had with a relative of Smollett when it was believed that Smollett was a crime victim. She assigned the case to someone else in her office who ultimately dismissed the charges against Smollett in exchange for his agreement to pay $130,000 to cover the costs of the investigation into his false report.61 The decision sparked widespread criticism. The mayor, police union, and others sharply condemned Foxx and her office for dismissing the charges, and a judge appointed a special prosecutor to investigate the decision to dismiss the charges and explore other grounds for charging Smollett. The judge’s decision to appoint a special prosecutor to investigate a prosecutor’s exercise of discretion was unprecedented. The case law makes clear that prosecutors possess the sole discretion to decide whether or not to bring charges. Prosecutors dismiss cases against defendants every day and are never required to explain their decisions. The decision to dismiss charges against Smollett was consistent with Foxx’s policy of devoting her office’s resources to the prosecution of serious, violent offenses. Smollett fit the profile for dismissal, as he was a first-­ time offender charged with a nonviolent offense. Yet the judge took the extreme—­and arguably unconstitutional—­step of appointing a special prosecutor (who ultimately brought charges against Smollett). The special prosecutor also conducted a yearlong investigation of Kim Foxx and her office. On August 17, 2020, he issued a report, finding no criminal wrongdoing while concluding that Foxx abused her discretion—­a conclusion with no basis in fact or law.62 The appointment of a special prosecutor to investigate Circuit Attorney Kim Gardner’s handling of the Greitens investigation was not the only example of judicial interference with her prosecutorial responsibilities. Gardner filed a petition to free a wrongfully convicted man named Lamar Johnson after her newly established Conviction Integrity Unit

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thoroughly investigated his case and concluded that he was innocent. Gardner joined the Midwest Innocence Project in a motion for a new trial that would ultimately result in his release after 25 years in prison. Circuit Judge Elizabeth Hogan made the unusual decision to appoint the state attorney general to intervene in the case, then denied Gardner’s motion. She appealed the decision to the Missouri Supreme Court. Forty-­five prosecutors from across the country—­Republicans and Democrats, traditional and progressive—­filed an amicus brief in support of Gardner. The brief noted: “Addressing past injustices such as wrongful convictions is a core duty of an elected prosecutor.”63 One hundred and six law professors who teach legal ethics also filed a brief supporting Gardner, noting that “[p]rosecutors’ responsibility as ministers of justice includes a responsibility to rectify the conviction of innocent persons.”64 Gardner filed criminal charges against Mark and Patricia McCloskey for brandishing guns at peaceful protestors on June 28, 2020. The attorney general and governor of Missouri and even the president of the United States at the time attacked Gardner for charging the McCloskeys.65 Gardner has received numerous death threats since bringing the charges, and the McCloskeys’ attorney filed a motion to remove her from the case. In addition, the state Senate passed a bill that would give the state attorney general the power to prosecute some homicides in St. Louis. The Missouri Association of Prosecuting Attorneys issued a strong statement criticizing the legislation, calling it “an unprecedented usurpation of the authority of a locally elected prosecutor.”66 The bill ultimately failed to advance in the state House of Representatives.67 In 2019, Parisa Dehghani-­Tafti was elected as the Commonwealth’s Attorney for Arlington County and the City of Falls Church in Virginia. A former public defender in the District of Columbia and former legal director of the Mid-­Atlantic Innocence Project, Dehghani-­Tafti ran for office on a criminal justice reform platform, promising to reduce the incarceration rate, work to eliminate cash bail, broaden diversion programs, and end the prosecution of marijuana possession. On March 4, 2020, the chief judge and three other judges of the Circuit Court for Arlington County issued a standing order requiring prosecutors in Dehghani-­Tafti’s office to file motions providing a detailed accounting of all the factual bases for their decisions to decline the prosecution of a case or to dismiss charges.68

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It appears that when prosecutors are exercising discretion in ways that contribute to mass incarceration and racial disparities, courts defend and affirm their decisions. However, when they use that same discretion to try to end or reduce mass incarceration and racial inequities, some judges and other officials in the criminal justice system find such conduct to be an abuse of discretion.

Strategies for Overcoming the Challenges and for Transforming the Culture The challenge for the newly elected progressive prosecutor is figuring out how to transform the culture of her office to implement criminal justice reform successfully. Good management and leadership skills are key. The district attorney should know how to organize and supervise her staff, set goals and expectations, and evaluate the performance of employees. However, management is not the same as leadership. As Anthony Thompson points out: “The best leadership involves engaging others in a collaborative process of imagining, defining, and working toward a common cause or greater mission that is meaningful for the enterprise and for its stakeholders.”69

Taking Steps to Enable Internal Transformation There are, of course, different styles of leadership. No single approach will work in every office or jurisdiction. The most effective approach will likely depend on the DA’s personality, background, and jurisdiction. Is the new DA a former prosecutor or a former defense attorney? Does she have a history with the office she inherited? Is that history positive or negative? To what extent did her predecessor’s policies and practices diverge from her own? Is there an appetite for change in the office among the current ADAs, or are they committed to the status quo? Regardless of the newly elected DA’s style of leadership, she will need to adjust her approach depending on the answers to these questions. A former defense attorney who has never prosecuted a case may not have the same leeway or credibility with her new staff as a prosecutor who was one of their colleagues. The newly elected DA who plans radical changes immediately may face more opposition than someone

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with a moderate, gradual rollout. Regardless of the approach, there are certain guidelines that all newly elected DAs should follow to effect cultural transformation. At a minimum, all DAs should hire their own executive team before taking office, and they should engage in frequent communication, education, and training to reorient their staff.

The Executive Team Every district attorney must hire an executive team to help implement her goals. The chief prosecutor cannot be everywhere at all times and cannot do everything on her own, even in a small office. She will need help with communication, education, training, and supervision. She should begin to assemble her executive team even before being elected. She will need individuals who are experienced criminal lawyers (as prosecutors and defense attorneys), administrators, and supervisors. She should also be confident that members of the executive team are loyal to her vision but will not hesitate to give her honest feedback and advice.

Communication Newly elected district attorneys should communicate with their staff early and often. No member of the staff should learn about a new policy or practice for the first time from a newspaper article. On day one, the DA should meet with the entire staff to set out her vision and expectations and to inform the staff of her intentions to communicate with them on a regular basis. She should then schedule a series of meetings with divisions and individuals to discuss the transition and address their concerns. These meetings should be two-­sided conversations; the DA should not only provide information but also listen and learn from her staff. This is especially true for DAs who have never prosecuted in that office or who have never served as a prosecutor. Listening and being open to suggestions are essential qualities for building trust, and staff members may have good ideas and may persuade the DA that a particular policy or practice is not feasible or needs revision to work.

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Education Education of the staff is paramount to successful implementation of the district attorney’s goals. If the ADAs do not understand why they are being asked to abandon or drastically change the way they have been doing their work, they will not likely commit to the new vision. While some who oppose the new policies will leave the office voluntarily, others will stay and comply begrudgingly or refuse to comply. Thus there is the need for ongoing education. The DA should require all ADAs to attend a lecture series that includes classes on mass incarceration, racial disparities in the criminal justice system, implicit bias, the role of the prosecutor in perpetuating mass incarceration and racial disparities, the cash bail system, and the criminalization of poverty, among other topics. The lectures should be conducted by individuals who have expertise in these topics. Attendance should be mandatory, and an ADA’s failure to attend the lectures should be taken into account during her performance evaluation. There undoubtedly will be opposition to mandatory classes. Prosecutors have difficult jobs and many work long hours. Requiring them to attend classes while fulfilling their daily duties and responsibilities may be seen as overly burdensome. ADAs in the trial division may not be able to attend lectures during regular work hours, so the classes may have to be offered in the evenings or on weekends or virtually. Also, if provided with sufficient notice, ADAs should be able to schedule trials and other hearings around the dates of the lecture series. Many offices require employees to attend mandatory training to secure the skills necessary to perform their job responsibilities. Education on these important topics at the core of the district attorney’s goals is essential to the implementation of her vision. Thus, these classes should be treated no differently from education and training on any topic or skill essential to the fulfillment of the employee’s duties and responsibilities.

Training After the ADAs have completed the lecture series and have an understanding of why the DA has realigned the goals of the office, they must be trained on how to fulfill those goals. This training will vary

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among offices, depending on the type of policies and practices that the district attorney intends to adopt. However, she should not leave the implementation of the policies to the discretion of the ADAs unless and until the ADAs are trained. For example, it is not enough for the DA to establish a general policy of declining the prosecution of nonviolent offenses. All ADAs may not have the same understanding of what constitutes a nonviolent offense. The DA must provide specific, detailed instructions on which offenses are eligible. Similarly, broad admonitions against overcharging will not suffice. There should be a supervised process to assure that ADAs are charging only those offenses that they can prove beyond a reasonable doubt. All ADAs should be trained on exactly how to implement the new policies; the policies should be in writing; and supervisors should carefully oversee the implementation of the policies—­at least until the ADAs have proven that they can exercise their discretion consistently within the policy without close supervision.

Termination of Staff Some ADAs who oppose the newly elected district attorney will resign, while others will stay. If education, training, and supervision do not successfully engage staff lawyers, then the DA may need to fire them. Laws regarding staff termination vary from state to state. Some ADAs serve at the pleasure of the chief prosecutor, while others enjoy job protection. Any ADA who refuses to fulfill her job responsibilities as they have been defined by the district attorney should be terminated, consistent with the laws of that jurisdiction. Some newly elected DAs have terminated ADAs without giving them a chance to comply with the new policies and practices. Immediate termination may be necessary in some circumstances. For example, the district attorney should have her own executive team committed to her vision. Much like we accept the norm that people will submit their resignation when a new executive takes office, the senior staff should expect that the DA will want to build her own team. In most instances, she will need to replace existing senior staff with her own team. Although it may be possible to reorganize the existing structure and transfer existing staff to other positions, this option may not always be available or desirable.

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There are also practical reasons why mass terminations are not usually feasible. The implementation of new policies and practices will take time. In the meantime, there will be arraignments, status hearings, trials, and other court proceedings that cannot be put on hold while the new DA educates and trains her staff. If the new DA is either a former criminal defense attorney or a former prosecutor from a different office, she will need existing staff to provide continuity during the transition.

Tapping National Resources The new district attorney will undoubtedly need outside help with training and education. DAs without prior management experience will also need management training for themselves and their senior staff. There are a number of organizations that provide this assistance to newly elected progressive prosecutors as they transition from candidate to officeholder. For example, Reshaping Prosecution is an initiative of the Vera Institute of Justice that provides support and assistance to progressive prosecutors at no cost. Directed by a former prosecutor, the project “assists prosecutors’ offices in implementing concrete, data-­informed policy and practice reforms to reduce the reach and impact of the criminal legal system, promote racial equity, and increase the public’s confidence in their office.”70 It partners with individual district attorney offices to provide the advice, education, and training necessary for successful implementation of their new policies and practices. Reshaping Prosecution invites interested DAs to submit applications. The application process involves the submission of answers to a series of questions about their commitment to criminal justice reform and their ability to collect and track data. The DA and her executive team are interviewed via videoconferencing, and the project director and staff conduct site visits at the district attorney’s office and with members of the community. After the selection process, the project engages with the DA offices for 12-­to 18-­month periods. The first step in the process is data gathering and analysis to determine the impact of decisions at various stages of the process. This data is used to inform decision-­making and measure progress. The project then helps the DA develop the specific policies to “re-

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duce incarceration, promote racial equity, and increase transparency.”71 After the policies have been developed, the project provides training on how to implement the policies and education on mass incarceration and the history of racial injustice in the criminal justice system. Reshaping Prosecution has been very successful in assisting progressive district attorneys. The project director and staff currently work with seventeen prosecution offices at varying levels of engagement. The project’s work with the office of St. Louis Circuit Attorney Kim Gardner has already demonstrated measurable progress. The project helped Gardner develop and implement policies and practices that have reduced the number of people in jail and prison by treating incarceration as a last resort. These policies include bail reform, a new declination and charging policy, new sentencing recommendations and practices, and the vast expansion of diversion. As of January 2020, the declination policy resulted in a 58 percent declination rate and the clearance of a backlog of more than 25,000 cases. The office’s diversion programs connected more than 300 people to services and support without crippling them with a criminal conviction.72 Reshaping Prosecution also partnered with the Institute for Innovation in Prosecution at John Jay College to create the Dignity, Racial Justice, and Prosecution Initiative. The initiative “brings together racial justice scholars, forward-­thinking prosecutors, individuals directly impacted by the system, and other stakeholders to develop tools for rooting prosecution both in human dignity and in the human capacity to grow and change.”73 Although many of the newly elected DAs come to the job with prior supervisory and management experience, some do not. Of those who do have management experience, very few have managed an entire office. It is important that anyone managing a team of employees has the necessary skills to perform her duties. However, these skills are particularly important for a DA attempting to transform an office by changing its mission, policy, and practices. The Management Center (TMC) is an organization that provides management training for organizations and other entities that are working for progressive social change on a variety of issues. According to TMC’s website: “We want to see more social change in this country. We know that producing it is hard. Disparities in money and power mean

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that social justice advocates need to fight not just as effectively as their opponents, but more effectively. That’s where The Management Center comes in: we help social justice leaders learn how to build and run more effective organizations so that they can get better results.”74 TMC provides trainings for managers at all levels and for staff on a variety of topics, ranging from basic management to racial equity and inclusion. The training sessions range from two hours to two days with in-­person and online options. Some of the in-­person training involves TMC staff coming to clients, and others are conducted at the TMC office in Washington, DC. Alyssa Schuren, a partner at TMC, has worked with nine progressive prosecutor offices. She and her staff have assisted with transition, reorganization, when and how to terminate staff, and other management issues. Schuren has also helped each DA figure out how to best use her skills and talents to implement the mission of the office. TMC charges clients on a sliding scale based on the office’s budget. There are other organizations that provide assistance and training for the newly elected progressive prosecutors. One such organization is Prosecutor Impact (PI), founded and directed by the former prosecutor Adam Foss. It seeks to “provide prosecutors . . . with the tools, data and training to make compassionate, fair, and informed decisions that demonstrate a commitment to the safety of the public, the well-­ being of the victim, as well as the betterment of the person charged with the crime.”75 PI conducts three-­, five-­, and 10-­day training sessions for junior, midlevel, and senior ADAs. Prosecutors spend significant time engaging with individuals incarcerated in prisons and jails and with victims and criminal defendants in various settings, including domestic violence shelters and homeless shelters. This part of the training seeks to break down barriers between ADAs and the people affected by their decisions. The goal is for ADAs to understand the lived experience of both the accused and the victims and to appreciate their dignity as human beings. PI also provides subject-­matter training by experts on a number of topics, including the history of racism in America, mass incarceration, implicit bias, racial equity, and poverty. Another important management resource is Fair and Just Prosecution (FJP), directed by another former prosecutor, Miriam Krimsky. It “brings together newly elected local prosecutors as part of a network

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of leaders committed to promoting a justice system grounded in fairness, equity, compassion, and fiscal responsibility. These recently elected leaders . . . are supported by FJP’s network through ongoing information sharing, research and resource materials, opportunities for on the ground learning, in-­person convenings, technical assistance, and access to national experts.”76 FJP produces issue briefs and other publications on a variety of topics. It also has created a network and community of progressive prosecutors who support each other by signing on to statements and briefs in support of prosecutors who are under attack for implementing progressive policies. For exposure to the latest thinking and innovations in criminal justice reform, the district attorney can turn to the Institute for Innovation in Prosecution (IIP) at John Jay College. IIP “provides a collaborative national platform that brings together prosecutors, policy experts, and the communities they serve to promote data-­driven strategies, cutting-­ edge scholarship, and innovative thinking. The IIP is dedicated to criminal justice that promotes community-­centered standards of safety, fairness, and dignity”77 and has established a number of projects that provide training to progressive prosecutors. The “Re-­entry Simulation” is an interactive event that allows participants to experience the many challenges that prisoners face when they are released from prison.78 “Inside Criminal Justice,” a joint initiative with the Manhattan District Attorney Academy and the Center for Justice at Columbia University, is a semester-­long seminar for Manhattan ADAs and incarcerated individuals from the Queensboro Correctional Facility.79 IIP also hosted a three-­year executive session on “Reimagining the Role of the Prosecutor in the Community” that brought together progressive prosecutors from around the country along with policy makers, academics, legal professionals, and individuals directly impacted by the criminal justice system. The executive session produced papers on a wide variety of important topics essential to the success of reform-­minded prosecutors.80

Paving the Way for External Acceptance of Reforms As progressive prosecutors work to alter the culture of their offices, they also face external opposition and challenges to their visions and goals. As the examples earlier in this chapter illustrate, officials from

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law enforcement, state and local government, and courts will sometimes use their power to try to obstruct reform efforts. Progressive prosecutors also face challenges from supporters who are often eager to see immediate change. Two of the strategies for managing internal opposition—­communication and education—­are also key to managing external challenges. Communication with criminal justice and elected officials is essential to the success of the newly elected district attorney. As soon as the DA is elected (and perhaps even before), she should schedule meetings with the chief judge of the court, the presiding judge of the criminal division, the public defender, the head of the probation department, the police chief, the mayor, and other key officials. There should be individual and group meetings. The purpose of the meetings is to inform all parties of the policies and practices that the DA plans to implement. It is important that she actively listen to the concerns of all parties and be open to suggestions that do not conflict with or undermine her policies. Communication will naturally involve education of all parties on why and how the DA plans to implement new policies and practices. These meetings should take place before the policies are implemented—­ideally during the transition period before she takes office. The police chief should not learn about a DA’s plans to decline prosecution of low-­level offenses from the media. Likewise, the DA should meet with the chief judge of the court if she intends to take a stance opposed to cash bail before her bail policies are implemented. Making the case externally will mean presenting data and best practices to demonstrate that her policies will not threaten public safety. A number of progressive prosecutors have collected such data.81 It is imperative that the DA meet with the local public defender—­at first individually and then with other criminal justice officials. The public defender will likely welcome the DA’s planned reforms and will be able to provide valuable advice on whether and the extent to which the reforms will be effective. For example, the DA may plan to start or expand a diversion program. The public defender is best positioned to inform the DA about whether there are financial or other obstacles that would prevent clients from complying with the conditions of the program. The DA may plan to establish a Conviction Integrity Unit. The

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public defender will be able to provide the DA with key information to ensure the success of the unit. Communication with—­and education for—­all parties must be ongoing throughout the DA’s tenure. Some jurisdictions have created Criminal Justice Task Forces that include the heads of all criminal justice offices and agencies. These task forces meet on a regular basis to share ideas and work together to improve the system. If there is an existing task force, then the DA might use that forum to regularly report on her policies and receive feedback from all parties. The DA should start a task force if one does not already exist. Communication and education may not prevent opposition to reforms, but these regular meetings should be helpful to the DA’s successful implementation of her goals. Progressive prosecutors are elected because a majority of their constituents want criminal justice reform. Some were elected with the active support of community leaders and organizations. The community leaders, activists, and other individuals who supported these candidates are often quite eager to see a reversal of policies and practices that have previously been in place. However, most of the DA’s constituents will not understand how difficult it is to change the status quo or how much time it takes to implement substantial reforms. Thus, the DA must also educate and communicate with her constituents on a regular basis to inform them of the progress she is making and the challenges she faces. Most voters know very little about the intricacies of the criminal process. The DA should provide constituents with as much information as possible about the process of implementing policy changes so that they will have realistic expectations about how long it will take to fulfill campaign promises. The DA should also listen to her constituents and seek their advice and feedback, especially from crime victims, the formerly incarcerated, and others who have been impacted by the criminal justice system. These individuals will be able to educate the DA and her staff on whether a particular policy is needed and how it might be improved and most effectively implemented. Constituents can also be helpful to a DA whose policies are under attack by other officials within the criminal justice system. Community groups can issue statements of support for the DA and/or send letters to a police chief or judge who attempts to block the DA’s policies. Many

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local judges are elected officials, and police chiefs are often appointed by mayors (who are themselves elected officials). These officeholders understand the importance of listening and responding to dissatisfied voters. Community groups also play the very important role of holding the DA accountable. If a DA makes a promise and fails to deliver for no justifiable reason, she should be held accountable—­throughout her term and when she is up for reelection. Regular meetings and other methods of communication will remind the DA of her responsibility to her constituents. Brooklyn District Attorney Eric Gonzalez established the Office of Public Engagement to ensure regular communication with members of the community. Staff members of this unit of his office regularly attend and participate in community board meetings, police precinct council meetings, and civic association events, with the goal of keeping community members informed and listening to their concerns.82 Reshaping Prosecution, Prosecutor Impact, and the Institute for Innovation in Prosecution all assist newly elected prosecutors with community engagement. Many offices may not have the resources to staff an entire unit devoted to community engagement or the ability to retain the services of any of the organizations who assist newly elected DAs. However, all offices—­event those with limited resources—­can and should schedule regular meetings with community stakeholders and all members of the public to educate, communicate with, and receive advice from their constituents.

Conclusion: The Need for a National Progressive District Attorney Organization The National District Attorneys Association (NDAA) is a nonpartisan organization that purports to represent state and local prosecutors throughout the nation. It was founded in 1950 and has more than 5,000 members.83 NDAA conducts extensive training programs and provides technical assistance and advice to district attorney offices. It also files amicus briefs in the United States Supreme Court and provides testimony and advice to the United States Congress and the executive branch on a range of issues.

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The American Prosecutors Association (APA), founded in 2009, is another national organization that represents district attorneys and city attorneys. The APA’s stated mission is to “act[] as a global forum for the exchange of ideas, allowing prosecutors to collaborate with all criminal justice partners, conducting timely and effective technical assistance and providing access to technology for the enhancement of the prosecutorial function. In addition, APA serves as an advocate for prosecutors on emerging issues related to the administration of justice and development of partnerships. APA keeps prosecutors informed about and involved with changes in both law and practice through regular training sessions, comprehensive publications, legislative analysis and amicus activity.”84 Neither the NDAA nor the APA has promoted true criminal justice reform or provided support to progressive prosecutors who have been under attack. In fact, the NDAA issued a press release sharply criticizing State Attorney Kim Foxx’s decision to dismiss the charges against Jussie Smollett.85 There is no national organization that provides direct support to progressive prosecutors. Progressive prosecutors would greatly benefit from membership in a national organization that provides support, training, and technical assistance to prosecutors committed to true criminal justice reform. There are only a few organizations that provide assistance and support to these prosecutors, and they are able to partner with only a limited number of prosecutors. A national progressive prosecutor organization would provide training, technical assistance, and best practices on a range of topics relevant to the implementation of criminal justice reform policies. It would also provide opportunities for progressive prosecutors to meet on a regular basis, share ideas, and support each other. There are statewide prosecutor organizations in most states, but like the national organizations, they support the traditional model of prosecution. Philadelphia District Attorney Larry Krasner withdrew from the Pennsylvania District Attorney Association, calling it “the voice of the past.”86 Many statewide prosecutor organizations lobby their state legislatures to pass harsh sentencing laws and criminal justice policies that are antithetical to criminal justice reform. These organizations are often successful at blocking legislative reform proposals. Progressive prosecutors in at least two states have formed their own organizations to promote a reform agenda in their state legislatures.

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Eleven Virginia chief prosecutors formed Virginia Progressive Prosecutors for Justice with the stated purpose of promoting criminal justice reform in the state legislature.87 Progressive prosecutors in California established a similar organization, Prosecutors Alliance of California, with the same goal.88 The progressive prosecution movement is growing. During every election cycle, there are candidates for district attorney who promise to implement policies that will reduce the incarceration rate, eliminate unwarranted racial disparities, and end cash bail. Many pledge to decline the prosecution of minor offenses, expand the use of diversion, and establish Conviction Integrity Units. Those who do their best to implement these reforms often face tremendous challenges internally and externally. Some have faced extreme attacks that may discourage others from running for office on a progressive agenda. Because prosecutors play such an important role in the criminal justice system, those who are truly committed to reform and who work hard to fulfill their promises should be supported. That being said, those who use the “progressive” label without the commitment and hard work should be held accountable. Education and training of prosecutors and all stakeholders, as well as the active involvement and participation of the community, can sustain this important movement, which is essential to achieving justice within the criminal legal system. Notes

1 Padilla v. Kentucky, 559 U.S. 356, 372 (2007) (“Pleas account for nearly 95% of all criminal convictions.”); Overview of Federal Criminal Cases, www.ussc.gov, at 8 (noting that 97.4% of federal defendants pleaded guilty in fiscal year 2018). 2 Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”). 3 Bureau of Justice Statistics, NCJ 251211, Correctional Populations in the United States, 2016 (2018), www.bjs.gov. 4 Criminal Justice Facts, The Sentencing Project, www.sentencingproject. org. 5 Ronald F. Wright, Beyond Prosecutor Elections, 67 SMU L. Rev. 593, 601 (2014), https://scholar.smu.edu (“[O]ver 80% of prosecutor incumbents run unopposed in both general elections and in primaries.”).

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6 About, Color of Change, https://colorofchange.org; see, e.g., Know Your DA in PA, www.knowyourdainpa.org; Meet Your DA, https://meetyourda.org; DA For Maine, https://daforme.com. 7 Cook County States’ Attorney, State’s Attorney Foxx Announces Major Bond Reform (June 12, 2017), www.cookcountystatesattorney.org. 8 Evan Sernoffsky, San Francisco DA Chesa Boudin Ends Cash Bail for All Criminal Cases, S.F. Chron. (Jan. 22, 2020), www.sfchronicle.com. 9 Suffolk County District Attorney’s Office, The Rachael Rollins Policy Memo 14–­15, app. B (Mar. 2019) http://files.suffolkdistrictattorney.com; Read Wesley Bell’s New Policies, Issued Jan. 2, 2019, St. Louis Post-­D ispatch (Jan. 3, 2019), www. stltoday.com; Claire Sasko, DA Krasner Will Drop Cash Bail for Most Non-­Violent Crimes, Philadelphia Magazine (Feb. 21, 2018), www.phillymag.com. 10 Charges to Be Declined, Rollins4DA.com, https://rollins4da.com [https:// perma.cc/7E6X-ZTZ6]. 11 Steve Bogira, The Hustle of Kim Foxx, Marshal Project (Oct. 29, 2018), www. themarshallproject.org. 12 Law Enforcement Assisted Diversion, www.kingcounty.gov. 13 Krasner Internal Memorandum, www.documentcloud.org. 14 Justice 2020, www.brooklynda.org. 15 The National Registry of Exonerations, www.law.umich.edu. 16 Josie Duffy Rice, Do Conviction Integrity Units Work?, The Appeal (Mar. 22, 2018), https://theappeal.org. 17 Id. (noting that some conviction integrity units, including those in Washington, DC, and Sacramento, “have yet to exonerate a single person”). 18 Jason Meisner, State’s Attorney to Dismiss 18 Convictions Tied to Former Chicago Police Sergeant, Chicago Tribune (Nov. 16, 2017), www.chicagotribune.com (stating that Foxx dismissed eighteen convictions of fifteen men due to their connection to a corrupt police officer). 19 Tom Jackman, As Prosecutors Take Larger Role in Reversing Wrongful Convictions, Philadelphia DA Exonerates 10 Men Wrongly Imprisoned for Murder, Washington Post (Nov. 12, 2019, www.washingtonpost.com. 20 Gov. Rick Scott Wins Legal Battle against State Attorney Aramis Ayala, WKMG (WTSP), Aug. 31, 2017, www.wtsp.com. 21 See George Gascon’s campaign platform, https://georgregascon.org. 22 Miller v. Alabama, 567 U.S. 460, 465 (2012). 23 Samantha Melamed, Philly Judges Block DA Krasner’s Deals for Juvenile Lifers, Philadelphia Inquirer (Apr. 6, 2018), www.philly.com. 24 Police Shootings Database 2015–­2020, Washington Post, www.washingtonpost.com. 25 Kenya Downs, Why Aren’t More People Talking About Latinos Killed By Police?, PBS (July 14, 2016), www.pbs.org. 26 Angela J. Davis, Policing the Black Man: Arrest, Prosecution, and Imprisonment, Pantheon B ooks xii (2017) See also Katie Nodjim-

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27

28

29

30

badem, The Long, Painful History of Police Brutality in the U.S., Smithsonian Magazine, www.smithsonianmag.com. See Channing Joseph and Ravi Somaiya, Demonstrations across the Country Commemorate Trayvon Martin, N.Y. Times (July 20, 2013), www.nytimes.com (detailing the hundreds of protests across the United States that followed the acquittal of George Zimmerman); Ryllie Danylko, Tamir Rice Supporters Protest in Downtown Cleveland in Response to Grand Jury Decision, Cleveland.com, www.cleveland.com (noting protests that followed after a grand jury failed to indict Cleveland police officers for killing 12-­year-­old Tamir Rice). Ethan Corey, How the Federal Government Lost Track of Deaths In Custody, The Appeal (June 24, 2020), https://theappeal.org (explaining how Congress passed the Death in Custody Reporting Act in 2014 but the Department of Justice has failed to implement major procedures of the law). Many states have passed laws, some more effective than others, to reduce police violence. See Bill Chappell, New California Law Says Police Should Kill Only When “Necessary,” Nat’l Pub. Radio (Aug. 19, 2019), www.npr.org; Ellee Watson, Mixed Results on Indiana Police Body Camera Law Signed by Mike Pence, CBS News (July 18, 2016), www. cbsnews.com; Gregory Yee, How South Carolina Is Working to Train All Officers on Recognizing Mental Illness, De-­Escalation Strategies, Post & Courier (July 15, 2017), www.postandcourier.com. See Jon Swaine, Michael Brown Shooting: “They Killed Another Young Black Man in America,” The Guardian (Aug. 12, 2014), www.theguardian.com; Deborah Bloom and Jareen Imam, New York Man Dies after Chokehold by Police, CNN, www.cnn.com; Philando Castile Shot By Police in Minnesota, Reports Say, a Day after Alton Sterling Shooting, CNBC (July 7, 2016), www.cnbc.com; Dallas Officer Who Fatally Shot Unarmed Black Man Told 911: “I Thought It Was My Apartment,” USA Today (Apr. 30, 2019), www.usatoday.com; Victoria Albert, 911 Call from Breonna Taylor’s Shooting Death Released: “Somebody Kicked in the Door and Shot My Girlfriend,” CBS News (May 29, 2020), www.cbsnews.com; Patty Nieberg and Thomas Peipert, Colorado Reopens Inquiry into 2019 Death of Elijah McClain, a Black Man Put into Chokehold by Police, Chicago Tribune (June 25, 2020), www.chicagotribune.com. Amelia Thomson-­DeVeaux et al., Why It’s So Rare for Police Officers to Face Legal Consequences, FiveThirtyEight, https://fivethirtyeight.com (detailing the many reasons that police officers are rarely charged with crimes, including law enforcement’s close relationship with prosecutors’ offices). See also Ferguson Cop Darren Wilson Not Indicted in Shooting of Michael Brown, NBC News (Nov. 24, 2014), www.nbcnews.com; Jason Hanna, No Charges against Officers in Alton Sterling Death; Other Videos Are Coming, CNN, www.cnn.com; Michael Balsamo et al., Justice Department Won’t Charge New York Officer in Eric Garner’s Death, PBS (July 16, 2019), www.pbs.org; Chris Hagan et al., No Criminal Charges for Sacramento Police Officers Who Fatally Shot Stephon Clark, Nat’l Pub. Radio (Mar. 2, 2019), www.npr.org.

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31 Kevin Rector, Charges Dropped, Freddie Gray Case Concludes with Zero Convictions against Officers, Baltimore Sun (July 27, 2016), www.baltimoresun.com; Erik Ortiz and Phil Helsel, Jury Acquits Tulsa Officer Betty Shelby in Shooting Death of Terence Crutcher, NBC News (May 17, 2017), www.nbcnews.com; Mitch Smith, Minnesota Officer Acquitted in Killing of Philando Castile, N.Y. Times (June 16, 2017), www.nytimes.com; Meagan Flynn, Cop Cleared of Murder after Shooting Unarmed, Naked Man Whose Last Words Were, “The Police Are My Friends,” Washington Post (Oct. 15, 2019), www.washingtonpost.com. 32 Linda Poon and Marie Patino, CityLab University: A Timeline of U.S. Police Protests, www.bloomberg.com. See also Tessa Duvall et al., Senior Citizens Facing Charges after Sit-­In for Breonna Taylor at AG Daniel Cameron’s Lawn, Louisville Courier Journal (Aug. 20, 2020), www.courier-journal.com (detailing protests that erupted after Kentucky’s attorney general failed to file criminal charges against the police officers involved in the killing of Breonna Taylor). 33 Tom Perkins, Revealed: Police Unions Spend Millions to Influence Policy in Biggest US Cities, The Guardian (June 23, 2020), www.theguardian.com. 34 Bogira, The Hustle of Kim Foxxwww; Dana Ford, Anita Alvarez Concedes Bid for Third Term in Chicago, CNN (Mar. 15, 2016), www.cnn.com. 35 Chao Xiong, Police Officer Charged in Fatal Shooting of Philando Castile, Star Tribune (Nov. 17, 2016), www.startribune.com. 36 Victor Fiorillo, Krasner Announces Homicide Charges against Ex-­Cop Who Shot Fleeing Black Suspect, Philly Mag (Sept. 4, 2018), www.phillymag.com; Max Marin, Philly DA Larry Krasner Is Going after Police for Illegal Stop-­and-­Frisks, Billy Penn (Oct. 4, 2018), https://billypenn.com. 37 Kaitlin Flanigan, Police Group Accuses Suffolk DA-­Elect of “Reckless Disregard” for Massachusetts Laws, NBC B os. (Dec. 28, 2018), www.nbcboston.com; see Nat’l Police Assoc., In re: Formal Complaint and Demand for Investigation of Alleged Attorney Misconduct by Suffolk County District Attorney-­Elect, Ms. Rachael Rollins (Dec. 23, 2018), https://nationalpolice.org. 38 Alyssa Vaughn, Mass. Supreme Court Rules in Rachael Rollins’ Favor in Straight Pride Protest Dispute, B oston Magazine (Sept. 9, 2019, 1:26 PM), www.bostonmagazine.com. 39 Eoin Higgins, Larry Krasner Responds to Progressive Critics: Mumia Abu-­Jamal Appeal Is “Incredibly Complex and Nuanced,” The Intercept (Feb. 9, 2019, 8:22 AM), https://theintercept.com. 40 Ariel Ramchandani, A Texas Prosecutor Fights for Reform, The Atlantic (Oct. 24, 2019), www.theatlantic.com. 41 Tom Schuba and Matthew Hendrickson, How Groups Tied to White Nationalists Are Targeting Chicago and Kim Foxx, Chicago Sun-­Times (Apr. 27, 2019), https://chicago.suntimes.com. 42 Karma Allen, State Attorney Kim Foxx Gets Death Threats after Dropping Jussie Smollett Charges, ABC News (Apr. 23, 2019), https://abcnews.go.com.

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43 Christal Hayes, State Attorney Aramis Ayala Receives Noose in the Mail, Orlando Sentinel (Apr. 20, 2017), www.orlandosentinel.com. 44 Christina Carrega, Top Prosecutor Receives a Racist Voicemail, Posts It on Social Media, ABC News (Jan. 18, 2020), https://abcnews.go.com. 45 Lara Bazelon, A Progressive Prosecutor Pledged to Reform the System. The System’s Fighting Back., Slate (Feb. 25, 2020), https://slate.com. 46 Id. 47 Sam Clancy, War of Words Continues as NAACP Calls for Firing of Police Union Spokesman after Gardner Comments, KSDK-­T V (Sept. 26, 2019), www.ksdk.com. 48 Id. 49 Complaint at 18, Gardner v. City of St. Louis et al., No. 4:20CV00060 (E.D. Mo. Jan. 13, 2020), www.courtlistener.com. 50 Id. 51 Id. 52 Id. at 3. 53 RJ Vogt, Perjury Scandal Can’t Blot Out Prosecutor’s Conspiracy Claim, L aw360 (Jan. 26, 2020), www.law360.com. 54 Aaron Morrison, Black Women Prosecutors Rally Behind St. Louis Circuit Attorney over Backlash, The Appeal (Jan 17, 2020), https://theappeal.org. 55 Vogt, Perjury Scandal. 56 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). 57 United States v. Armstrong, 517 U.S. 456, 464 (1996) (citing United States v. Chemical Foundation, 272 U.S. 1, 14–­15 (1926)). 58 Armstrong, 517 U.S. at 464 (“The Attorney General and United States Attorneys retain ‘broad discretion’ to enforce the nation’s criminal laws.”) (internal citations omitted). 59 McCleskey v. Kemp, 481 U.S. 279, 296–­97 (1987) (describing a prosecutor’s “wide discretion” as “essential to the criminal justice process”). 60 Fair and Just Prosecution, Statement in Response to Attorney General Barr’s Remarks to the Fraternal Order of Police (Aug. 16, 2019), https://fairandjustprosecution.org. 61 Aamer Madhani, Jussie Smollett Case: City of Chicago to Sue Actor over Alleged Hoax Attack, USA Today (Apr. 4, 2019), www.usatoday.com (explaining that the city of Chicago originally sued Smollett in state court to collect the $130,000 but that Smollett removed the suit to federal court); see Chicago v. Smollett, No. 19 C 4547, 2019 WL 5393994 (N.D. Ill. Oct. 22, 2019) (denying Smollett’s motion to dismiss for failure to state a claim). 62 Julia Jacobs, Smollett Case: Special Prosecutor Finds “Abuses of Discretion,” N.Y. Times (Aug. 17, 2020), www.nytimes.com. 63 Brief of 45 Prosecutors as Amici Curiae Supporting Respondent at 12, Missouri v. Johnson, Cause No. 22941-­03706A-­01 (Mo. Feb. 10, 2020) (No. SC98303), https:// themip.org.

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64 Brief of Legal Ethics Scholars as Amici Curiae at 29, Missouri v. Johnson, No. ED108193 (Mo. App. E.D. Oct. 23, 2019), https://bloximages.newyork1.vip.townnews.com. 65 Karma Allen, AG, Governor Want Case against Gun-­Wielding Couple Dropped, ABC News (Jul. 21, 2020), https://abcnews.go.com; Jemima McEvoy, Trump Defends St. Louis Couple Who Pointed Guns at Protesters, Forbes (Jul. 14, 2020), www.forbes.com. 66 Press Release, Mo. Ass’n of Prosecuting Att’ys, Statement of the Missouri Association of Prosecuting Attorneys on Concurrent Jurisdiction Following Passage of HB2 in Senate (Sept. 3, 2020), www.prosecutors.mo.gov. 67 Elizabeth Eisele, Bill Targeting Kim Gardner Fails to Pass Missouri House as Special Session on Crime Ends, KMOV4 (Sept. 16, 2020), www.kmov.com. 68 Order Governing Criminal Docket Procedures, https://app.box.com. 69 Anthony C. Thompson, Dangerous Leaders: How & Why L awyers Must Be Taught To Lead, 10 (2018). 70 Vera Institute of Justice, Reshaping Prosecution program, Become a Partner, www. vera.org. 71 Vera Institute of Justice, Reshaping Prosecution program, Learn More, www.vera. org. 72 Vera Institute of Justice, Request for Proposals, https://storage.googleapis.com. 73 Dignity, Racial Justice, and Prosecution, www.prosecution.org. 74 The Management Center, About Us, www.managementcenter.org. 75 Prosecutor Impact, The PI Vision, https://prosecutorimpact.com. 76 Fair and Just Prosecution, About FJP, Our Work and Vision, https://fairandjustprosecution.org. 77 Institute for Innovation in Prosecution, Our Mission, www.prosecution.org. 78 Reinventing Reentry, www.reinventingreentry.org. 79 Institute for Innovation in Prosecution, Inside Criminal Justice, www.prosecution. org. 80 Institute for Innovation in Prosecution, Executive Session Papers, https://orchidbullfrog-43e9.squarespace.com. 81 Philadelphia District Attorney’s Office, Ending Mass Supervision: Evaluating Reforms in the Philadelphia District Attorney’s Office, 14–­15 (Apr. 2021), www. docdroid.net; Reclaim Chicago, The People’s Lobby & Chicago Appleseed Fund for Justice, Sentences of Incarceration Decline Sharply, Public Safety Improves During Kim Foxx’s Second Year in Office 1 (July 2019), www.thepeopleslobbyusa. org; Milton J. Valencia, Study Shows No-­Prosecution Policies May Work, B oston Globe, www.bostonglobe.com (noting that data supports Suffolk District Attorney Rachael Rollins’s policy of diverting those accused of “certain low-­level crimes to social services programs”). 82 The Brooklyn District Attorney’s Office, Community Engagement, www.brooklynda.org.

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83 National District Attorneys Association, About NDAA, https://ndaa.org. 84 Association of Prosecuting Attorneys, Programs, www.apa-inc.org. 85 National District Attorneys Association Statement on Prosecutorial Best Practices in High Profile Cases, Mar. 27, 2019, https://ndaa.org. 86 Chris Palmer, Philly DA Larry Krasner Withdraws Office from Statewide Prosecutors Group, Philadelphia Inquirer (Nov. 16, 2018), www.inquirer.com. 87 Daniel Nichanian, Eleven Prosecutors Form a Progressive Alliance in Virginia, The Appeal, (July 28, 2020), https://theappeal.org. 88 Marisa Lagos, New Alliance of Progressive DAs to Push Criminal Justice Reform in California, KQED, (Sept. 15, 2020), www.kqed.org.

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4

Rethinking How Prosecutors Deal with Race and Implicit Bias William C. Snowden

“I’d give him his job back at Deanie’s today if he were released.” That statement, made by the victim in my client’s case, demonstrated that he was not afraid of my client, had forgiven him, and wanted restorative justice, not retribution. But the prosecutor’s office would ignore this view and follow its own sense of justice. Prosecutors did not know my client, could not see the individual in the offender, and could not see the value of a second chance. Instead, what they saw was a Black armed robber whom they believe deserved nothing more than to be in prison despite the wishes of the victim in the case. What led to this set of circumstances? Here are the facts. My client, Jerry,1 was waiting at the bus stop, on his way to a shooting range with his firearm legally visible on his hip. Louisiana is an open-­carry firearm state. Jerry had applied for a job with a private security firm, and his second interview was coming up. The application process included a firearms test, so Jerry wanted to be prepared. While waiting for the bus, an old coworker of Jerry’s, Nelson,2 rode his bike up to Jerry to say hello. After the two began talking, Jerry asked Nelson about an incident that had happened a few months earlier. Money had been taken out of Jerry’s wallet during his shift at Deanie’s, a local seafood restaurant. Nelson had been Jerry’s manager there. Nelson had discovered Jerry’s wallet near the restaurant’s dumpster and returned it to Jerry. But the cash had been missing. Jerry suspected Nelson had something to do with the theft but had no proof. After speaking with Nelson for a little bit, Jerry’s suspicions returned, and he decided to get even. “Gimme your bike,” Jerry said. “I’m not giving you my bike,” replied Nelson. Jerry then removed his gun from his hip, pointed it toward the ground and said, “Nah, gimme your bike.”

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Nelson complied. After Jerry rode off on the bicycle, Nelson went to the nearby police station and reported what had happened. The police arrested Jerry minutes later riding the bicycle. Jerry had no prior convictions, and he had never even been arrested. This was his first offense, and he was charged with armed robbery with a firearm, which carries 15–­99 years in prison if convicted at trial. As Jerry’s public defender, trying to arrange for Jerry to enter a guilty plea to a reduced charge, I first met with the assistant district attorney (ADA) assigned to the case. I was unsuccessful. I spoke with Jerry, as well as Jerry’s mom and cousin, who came to every court date, about the ADA’s unwillingness to offer a plea deal, which meant we would have to go to trial. Jerry’s mom cried after every court appearance. It hurt to see her son in an orange jumpsuit and chains. She simply could not believe, or accept, that her son could possibly be facing 15–­99 years for this type of case. Since I had no luck with the ADA, I went to the Orleans Parish District Attorney himself and requested a plea deal. My proposal was inspired by a plea deal I witnessed a private attorney secure in a different section of court. That case involved much more violent facts involving a defendant who had prior felony convictions. I was seeking a reduction in charge from armed robbery with a firearm down to simple robbery. I requested a seven-­year sentence with all but two of the seven years being suspended. The remaining five years would be served on probation. Jerry would have to serve two years in custody, which he already had credit for, and five years under the supervision of the Louisiana Department of Public Safety & Corrections, Probation/Parole Division. After my pitch to the district attorney, he shared his concern that Jerry had been carrying a gun. When I asked why, the DA described the fear he would have experienced had he seen Jerry downtown with a gun. “Because he’s Black?” I asked. The DA quickly claimed that he did not know Jerry’s race. That assertion seemed unlikely given all the racial cues in the file the DA had reviewed before our meeting. The file even included Jerry’s mug shot. The DA said he would think about our proposal. Ultimately, he rejected it, and instead offered Jerry ten years in prison. I thought about what the DA must have seen in Jerry that made him seem less deserving of a plea deal he had offered to an arguably more vi-

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olent defendant in a similar situation. What was more worrisome about Jerry compared to what he saw in the private attorney’s client? I will never know. But I am forced to think about the role that race played in this case—­Jerry’s race and mine. I am forced to wonder: What role did the white race of the private attorney’s client play? Or the white private attorney’s race? These are questions of bias that actors in the justice system too often miss or dismiss. Also dismissed in Jerry’s case were the wishes of Nelson—­the person who was robbed. Not only was Nelson willing to give Jerry a job at Deanie’s, Nelson did not want Jerry to go to prison. Nelson told me he was not going to testify against Jerry at trial. But I knew this district attorney had no problem issuing material witness warrants, arresting victims, and having them testify in orange jumpsuits and in chains themselves. With a remorseful defendant and a forgiving survivor of crime not interested in imprisonment, one might think this case would easily be resolved. However, we had a DA who, while willing to exercise discretion in other armed robbery cases to lower a white defendant’s prison exposure, was unwilling to budge off a double-­digit plea offer for Jerry. Sadly, Jerry’s case is not an anomaly. It demonstrates how district attorneys can use their discretion to decide who goes to prison and for how long and who does not. Take this case and multiply it by the thousands of cases DAs prosecute during their tenures to understand the prosecutor’s role in fueling, or ending, mass incarceration. Many DAs justify “tough on crime” policies by pointing to the authority given to them by the law. For decades, DAs in Louisiana have used laws such as the habitual offender statute to lock up thousands of people and literally throw away the key. The practice of mass incarceration hinged on a myth that incarceration keeps society safe. Of course, if incarceration really promoted community safety, then Louisiana would be the safest state in the country. It is not. Put simply, Louisiana locks up far too many Black people. I moved to Louisiana to do criminal justice work precisely because it is the prison capital of the world.3 I come from a blended background: My father is a Black man from El Dorado, Arkansas, and my mother is a white woman from Corning, Iowa. Through my upbringing I have learned the peculiarities of race in the United States, and through my

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work I have been exposed to the racism of our criminal legal system. As a public defender for five years, I was a participant-­observer in the New Orleans criminal legal system. All my clients were poor, and almost all were Black men—­regardless of the charge. In New Orleans, we colloquially call the criminal legal system “Tulane & Broad,” because those are the names of the intersecting streets where most of the criminal legal system actors are located. The criminal district court, the jail, the bail bondsmen, police headquarters, municipal and traffic court, and the DA and public defender offices are either located at or within a few blocks of that intersection. Five years at Tulane & Broad gave me a front row’s perspective on a system that needs changing. Although I have the stories to prove it, I have come to realize that stories such as Jerry’s need numbers to provide context and urgency. Today, I am the New Orleans director for the Vera Institute of Justice. Through research, data, and policy, Vera works with government and community partners as part of our mission to drive reform. We work urgently to build and improve justice systems that ensure fairness, promote safety, and strengthen communities. Since 2006, our work in New Orleans has helped safely reduce the jail population from a monthly average of 6,500 people before Hurricane Katrina to 1,100 in 2020. To inspire systemic change, Vera’s work has highlighted the harms that bail, fines, and fees pose to New Orleans. The practice of extracting money from vulnerable families does nothing to promote community or safety. And Vera is supporting the city to build alternatives to jails for its residents who find themselves at the intersection of mental illness and the criminal legal system. Vera does this work—­and more—­in New Orleans in addition to states around the country because we envision a society that respects the dignity of every person and safeguards justice for everyone. In the wake of George Floyd’s killing, it appears that the country has reached a tipping point. We can lean in to a reimagined criminal legal system with equity as its foundation. Or we can fall back to the all-­too-­familiar pillars of white supremacy that have upheld the inequities and mistreatment of Black people, Indigenous people, poor people, and other people of color. Too often, we look for quick answers to the racial disparities in our criminal legal system. It is easy to think these disparities are solely the product of racist prosecutors and that, by weed-

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ing out the bad apples, we can save the entire bushel. But the roots of our problems grow beyond obvious explanations of overt racism and explicit bias. Digging deeper, the pages below will unearth how our implicit biases play a role at every stage of prosecution and what we can do to check those effects. To understand the source of our implicit biases, I also explore what prosecutors should know about racism in the United States and its connections to the criminal legal system.

Race in Justice: A Brief Examination of the Criminal Legal System’s Racist Underpinnings If past is prologue, it makes sense to understand how racism—­overt and implicit—­has shaped and misshaped our criminal legal system. The overrepresentation of Black people in our criminal legal system causes some to suggest falsely that Black people are more criminal than others. The easy answer to this overrepresentation is to blame the individual. But similar racial disparities exist in other systems including education, health, and housing, indicating that something else is in play. “There is nothing wrong with Black people that ending racism can’t solve.”4 Black people make up almost 13 percent of the total US population.5 Yet, Black people “are incarcerated at more than 5 times the rate of whites.”6 Specifically, Black men represent approximately 35 percent of those incarcerated.7 Future predictions are just as grim: One in three Black men born today can expect to be incarcerated in his lifetime, compared to one in six Latino men and one in 17 white men. Black women are similarly impacted: one in 18 Black women born in 2001 is likely to be incarcerated sometime in her life, compared to one in 111 white women.8

Racial disparities are the product of racial discrimination, which has played a role historically in oppressing Black people since they were brought to this country.9 Racism has been defined in different ways over the years, but there are two definitions that are particularly salient for twenty-­first-­century prosecutors. First, Ibram X. Kendi, a professor of history defines racism simply: “[I]t is any concept that regards one racial

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group as inferior or superior to another racial group in any way.”10 The second definition, offered by the writer Ijeoma Oluo, explains racism as “any prejudice against someone because of their race, when those views are reinforced by systems of power.”11 Ijeoma Oluo also aptly elaborates that “how we define racism also determines how we battle it.”12 Defining racism in the criminal legal system is one of the first steps a twenty-­first-­century prosecutor can take to advance racial equity. To define it and begin to grapple with it, prosecutors must be exposed to US history, including the evolution from slavery to mass incarceration in this country. The Thirteenth Amendment abolished slavery: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”13 The exception for criminal punishment provided a lane for this country’s original sin to evolve and persist. On the heels of the passage of the Thirteenth Amendment, states rushed to enact laws, criminal codes, and policies to exploit the carved-­ out exception to the abolition of slavery. The elimination of Black people’s free labor posed a significant threat to the South’s economy.14 The US racial caste system was created to support the wealth-­generating system of slavery primarily making white men rich. The end of slavery theoretically should have ended that system.15 But it did not die—­“the idea of race lived on.”16 Indeed, the country looked to deploy other systems of control to enable white landowners to extract free labor from Black people.17 White Southerners thrived on a caste system that elevated their group over Blacks. So, the Reconstruction era was particularly threatening to the racial order they had invented. Black advancement occurred with increased literacy rates. Blacks ran for and won political office. Blacks were attending public schools, owning businesses, and more.18 These accomplishments fundamentally put the idea of white supremacy at risk. To reverse and thwart Black progress, Southern states began introducing measures such as Black Codes and vagrancy laws to contain and control Black people. These efforts were intended to restore the racial order whites were familiar with when Blacks were enslaved people. They also served as a gateway to restoring a low or no-­cost labor force.

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Black Codes were passed specifically to control the newly freed Black population.19 These new laws applied only to Black people and subjected them to criminal punishment for acts such as not having proof of employment.20 These Black Codes criminalized normal behavior such as walking at night.21 Vagrancy laws were not laws that looked to advance public safety. They were laws that provided law enforcement a powerful tool to control Black people, to put them back in servitude, and to enforce a racial order from which whites benefitted socially and financially. And they were quite effective. For the first time in the country’s history, many state prison systems held more Black prisoners than white. The country had learned to exploit the Thirteenth Amendment exception: They thought, If we make people criminals, we can make them slaves. The exception provided the textual link between slavery and mass incarceration. Convict leasing became the updated version of slavery whereby “prisoners were contracted out as laborers to the highest private bidder”22 and worked at mines and large plantations. No rights or protections existed for an enslaved person before the Thirteenth Amendment; neither did they exist for a convicted person—­Black people once again became slaves of the state.23 Of course, Northern states wanted to create racial order based on notions of white supremacy as well. High arrest rates and excessive enforcement of laws applied to Blacks for being “suspicious” fueled the narrative of the inferiority of Blacks.24 These racist policies led to higher incarceration rates for Black people, and these rates were then used as proof to associate Blacks with criminality.25 We see echoes of Black Codes today, through the heightened policing of Black and Brown people doing nothing more than living their lives: sitting in a coffee shop while Black,26 hosting a BBQ while Black,27 and napping on campus as a graduate student while Black28 are but a few examples. The suspicion of Black and Brown people can be traced back to the earlier period of US history where white people misappropriated the legal system to reclaim and maintain a racial order they devised and preferred. In Louisiana, convict leasing began before the Civil War and continued until 1900.29 The conditions of convict leasing were, in some instances, worse than slavery because, unlike a slaver, the state had no monetary investment or property interest in the livelihood of a convicted

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person.30 The Louisiana State Penitentiary, more commonly called “Angola,” was formerly the Angola plantation. Its name is derived from the country from which many of its enslaved people originated.31 Today, it is still considered a prison plantation. Also, at the turn of the twentieth century, Mississippi transitioned away from a convict leasing system and opened up its own state penitentiary, Parchman Farm.32 Similar to Angola, Parchman was a plantation, with cotton production being its main source of revenue.33 Mississippi used the people convicted “to build railroads, to mine coal and iron, and to fell timber, make turpentine, clear land and grow cotton.”34 Convict leasing and, eventually, overincarceration of Blacks were part of restoring the racial hierarchy that whites had invented. Racial terror was another component. Between 1877 and 1950, there were 4,075 documented racial terror lynchings in the United States.35 Lynching was a disturbing mix of domestic terrorism and social entertainment. In 1905, Hollywood released D. W. Griffith’s film Birth of a Nation, fueling stereotypes that Black men were predators, animals, and destined to rape white women. That sensationalized fiction also inspired the resurgence of the Ku Klux Klan as a heroic entity to protect civilized society—­namely, white people. The vivid images and blatant falsehoods of Black men being hyper-­dangerous and excessively violent confirmed the narrative that Black people were different and needed control. The incarceration of Black men was more easily accepted. And when the twentieth century ushered in more policies and laws that dramatically increased the rates at which Black and Brown people had contact with the criminal legal system, very few balked. In fact, we had become so accustomed to blaming the individual that it was easy to ignore the failings of other systems, such as housing, education, and employment, that ultimately contributed to higher rates of poverty in Black and Brown communities. National policies were developed that restricted access to resources and excluded Black people from the benefits of a growing economy. For example, the 1935 Social Security Act36 excluded agricultural and domestic workers, the majority of whom were Black and Brown people. The Servicemen’s Readjustment Act of 1944, better known as the G.I. Bill, was designed to provide returning World War II veterans with resources and support to purchase homes and to access college and graduate school after serving our country.37

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White veterans were able to use the G.I. Bill to buy suburban homes in neighborhoods with good schools and thus began building generational wealth through homeownership. Unfortunately, due to practices such as redlining, banks refused to approve mortgages for homes in Black neighborhoods. Similarly, restrictive covenants in suburban neighborhoods meant that Black veterans simply were not able to benefit from these national programs to build home equity and wealth in the same ways as their white veteran counterparts. Despite declarations that certain laws and policies were race-­neutral, one cannot ignore the racist impact they had. Higher poverty rates ultimately correlate with crime rates,38 not race. Despite this, race is used to color the lens through which we view each other, and our racialized associations of criminality create an acceptance and comfort with higher rates of incarceration for Black and Brown people. To chart a new path for the criminal legal system, twenty-­first-­century prosecutors must understand this country’s racist legacy. The events highlighted above are but a small sample of the ways that the criminal legal system simply continued the process begun by slavery. The racial disparities widely experienced today cannot be fully understood without understanding that throughline. Our current criminal legal system was born out of policies aimed at controlling Black bodies. So, from enslavement to Jim Crow to today’s mass incarceration epidemic, this country has used laws to control Black people as a means of social power, and to protect public safety. It is incumbent on today’s prosecutors to be alert to the ways that race manifests in criminal justice—­ranging from those individuals and communities we target for enforcement to those individuals we assign the task of enforcing and prosecuting the laws. Racial equity in our criminal legal system will be attained only when race is no longer a predictor of outcome.

Prosecuting Fairly District attorneys exercise tremendous influence in the criminal legal system. Their discretion over whether or not to prosecute and their unchecked authority make them incredibly powerful. As with every other actor in the legal system, their decisions are subject to implicit biases. What social science has revealed is the pervasive nature of biases

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and the fact that those biases influence discretionary judgments when information is limited, time is pressed, and our brains are taxed. We will explore six different domains that are ripe for implicit bias in the prosecution of a case: (1) charging; (2) bail; (3) discovery; (4) plea-­bargaining; (5) jury selection; and (6) postconviction litigation. And we will explore the role that implicit bias can play at each discretionary point. “Implicit bias,” often happening at an unconscious level, is the brain’s automatic and instantaneous association of stereotypes or attitudes toward certain people or groups.39 Messages are communicated in our brains sometimes at a frequency of which we are not consciously aware. We all have implicit biases, not because we are all bad people but because we have been exposed to certain stereotypes over the course of our lives; our brains have stored this information and these associations in an area that is recalled unconsciously. These stereotypes can be based on race, gender, age, and a variety of other elements of identity. Researchers have developed tools to help us understand our implicit biases. The Implicit Association Test (IAT) is one such tool. The IAT measures the time it takes for someone to associate certain words with certain images.40 The science suggests that the speed at which our brains make these associations indicates the existence of a schema already established in our brains.41 Prosecutors should take the IAT to examine their personal results. What does implicit gender bias look like? In the 1970s, the five top orchestras in the United States were made up of less than 5 percent female musicians.42 Yet we know that men do not play instruments any better than women.43 To combat this gender bias, blind auditions were introduced by putting in place a divider between the musician and the judges of the performance.44 The screen was positioned to prevent visual cues from activating the gender biases of the judges.45 The screen helped, but something was still activating the judges’ gender bias. They then asked the musicians to take off their shoes. Why? Because the sound of the women’s shoes clicking on the stage activated a gender bias.46 By arranging the blind auditions to prevent the influence of the implicit gender bias, it is suspected that the percentage of women in orchestras between 1970 and 1996 increased by at least 25 percent.47 The ways our implicit biases can be activated are not always obvious. Cues such as a person’s skin color, age, gender, and accent can activate

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implicit biases.48 One study looked at how a writer’s race influenced the discovery and reporting of errors in a memorandum. A legal memorandum was drafted and distributed to 60 different law firm partners who agreed to be part of a writing analysis study.49 The partners were told that the author of the memo was “Thomas Meyer,” a third-­year associate and alumnus of New York University School of Law.50 The only difference in the memoranda distributed to the partners was that half received information indicating Meyer was Black and the other half received information that he was white.51 When Meyer was Black, partners found 5.8 out of the 7 spelling and grammar errors contained in the memorandum.52 When Meyer was white, partners found only 2.9 out of the 7 errors.53 The partners even described the third-­year associate differently. The white Thomas Meyer was described positively: a “generally good writer but needs to work on . . . ,” “has potential,” and “good analytical skills.”54 By contrast, the Black Meyer was described more negatively: “needs lots of work,” “can’t believe he went to NYU,” and “average at best.”55 From philharmonic orchestras to corporate law firms, we know that implicit biases influence daily decisions. The criminal legal system is no different. As a public defender, I lived in the courtroom and cannot ignore the ways in which implicit bias affected my own advocacy. This occurred in court one day while I acted as the public defender representing the 15 people in the “box.” The box is where the people are held in the courtroom awaiting their first appearance hearing—­the arraignment. The box is made up of wooden pews with a larger wooden banister separating the box from the well of the courtroom. First appearances are just that: the first time a person arrested for a crime in New Orleans appears before a judge. In arraignment hearings, three things will happen: (1) a determination whether there is probable cause to believe a crime occurred; (2) an assessment of eligibility for representation by a public defender; and (3) the setting of bail. On this day, the first row of the box held five young Black men wearing orange jumpsuits and shackled in metal chains. In the second row were five more young Black men wearing orange and chains. And in the third row were five women—­four young Black women and one elderly white woman, all in orange and chains. When I saw the older white woman, she stood out to me. I thought to myself, What is she doing here?

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I sat down at the defense table and flipped through the stack of police report summaries for the day. To my right was the assistant district attorney. To my front was the judge, and to my left was the box holding the 15 people who had been charged. I interviewed everyone in the first row, the second row, and the third row. When I got to the older white woman, I asked her, “What happened? What’s going on? Why are you here?” Her eyes were puffy; I could tell she had been crying. She explained she came to New Orleans from St. Louis to hop on a cruise with her girlfriends. Upon returning to port, she was arrested for an outstanding St. Louis warrant for issuing a bad check. She was very apologetic, wanted to repay whatever money was owed, and declared she must not have balanced her checkbook properly. This woman had spent the last day or so in the notoriously poorly run, dangerous, and hazardous Orleans Parish Prison, and I felt bad for her. I wanted to do everything I could to help get her out of this situation. I tried to figure out how to contact her friends even though she had none of their phone numbers memorized. I thought of ways to try to send messages to family through social media. I was motivated to do anything for this woman because I did not feel she should be there. Let us pause here. There I was—­the person responsible for representing virtually everyone in that box. I was the one person whom each should have been able to count on to believe in the presumption of innocence, and the only discomfort I felt that day was for the older white woman. I was accustomed to seeing Black people wearing orange and chains. I am not proud of that. But I share this experience as an example of how my implicit biases impacted the way I viewed the people I represented. Implicit biases affect all of us—­and prosecutors are no exception. Implicit biases influence the way we evaluate others. At every stage of a criminal case, prosecutors are assessing the defendant, making judgments about the case, and making decisions that will affect lives. Their perceptions will color how they deploy their discretion.

Charging The crime(s) a person is charged with sets the tone for the case. The charge establishes the person’s sentencing exposure as well as the

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parameters for plea-­b argaining. And the prosecutor decides what charges should issue based on the facts of the case presented to them by the police. In screening the case for acceptance or refusal, a prosecutor may review body-­camera footage, police booking photos, physical descriptions of the accused person, and any other evidence available at that time. During this screening process, the prosecutor will have a sense of the defendant’s appearance. Research reveals that a person’s physical size can activate biases influencing what charges to file. For example, a Black man’s physical size can cause him to be misjudged by being perceived as more criminal and aggressive. That perception can increase the level of charges he will face.56 One study showed that identically sized men were perceived differently, with Black men being seen as stronger, larger, and more muscular than their white counterparts.57 This misperception can falsely create a notion that the person poses more of a threat than they actually do. Implicit racial biases also influence the perception of individuals involved in drug cases. If prosecutors see a file with a young Black male possessing drugs, they may be more inclined to associate him with dealing drugs versus simply using drugs.58 That association can lead to a higher charge, such as possession with intent to distribute drugs, which will certainly carry a higher exposure to punishment than a simple possession charge. Such overcharging can determine a host of factors in an individual’s criminal case, including eligibility for probation, the range of possible fines and fees, and sentencing outcomes. This tainted perception of people as being more criminal than they are also influences the decision whether to charge youth in the juvenile justice system versus the adult system. Black kids are more likely to be charged as adults when compared to white kids.59 One suggestion as to why this may be the case: some white people’s inability to accurately assess the age of a Black child.60 If Black kids are seen as older than they are, then they may be seen as more dangerous and more criminal, which then helps to justify charging them as adults.61 Charging can also be affected by a prosecutor’s sense of the reasonableness of a defendant’s behavior. The validity of a self-­defense claim should not be colored by the individual’s race, but sometimes it is. Here, as an example, I highlight a self-­defense case in which both the Black and white suspect behaved the same way:

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The prosecutor might be inclined to believe that the [B]lack suspect acted too quickly in shooting the unarmed man, while the same prosecutor might be inclined to believe that the white suspect—­not only unencumbered by these negative associations but also bolstered by positive stereotypes such as lawful, trustworthy, and successful—­acted reasonably in discharging his weapon.62

Charging should not be influenced by a prosecutor’s implicit racial biases but should be guided by a predictable set of criteria. The American Bar Association (ABA) is the largest organization of lawyers in the United States. Its members include lawyers from around the country practicing in a wide variety of areas, including criminal law. The ABA has established prosecutorial standards most recently published in 2017. Among those standards, as related to charging, are 16 different elements a prosecutor should consider when deciding to file, decline, maintain, or dismiss criminal charges.63 A sample of these elements includes: the strength of the case, the extent or absence of harm caused by the offense, and any improper conduct by law enforcement.64 The ABA further states: “A prosecutor should strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of the prosecutor’s authority.”65 Charging is a vital stop along the journey of a criminal case, setting the stage for what is yet to come. Charging can be adjusted (up or down) from the day of arraignment until trial, and prosecutors must be alert to the ways that their implicit biases influence their decisions. Some steps to curb the power of implicit racial biases should be adopted. First, prosecutors should engage in practices that ensure charging decisions are monitored to prevent racially disparate outcomes. Recording each individual charging decision and providing for individual case reviews are good practices. Second, prior to actually engaging in charging decisions, line prosecutors as well as supervising attorneys should participate in implicit bias training as a way to raise their knowledge about biases that may be in play and ways they can slow down their own thinking to counter the involuntary triggering of biases. Finally, as part of the office’s performance evaluations, individual meetings should take place with prosecutors whereby their charging decisions are reviewed to identify individual judgments and to detect patterns.

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Bail Historically, bail has been designed to achieve twin outcomes: (1) ensure appearance in court while (2) promoting public safety. However, there are mixed opinions as to whether bail actually accomplishes those objectives. Here is how it works. A judge sets a specific monetary amount as bail, which the accused must post to be released from custody pending trial. The accused or the accused’s family either pays that entire amount to the court themselves, or they utilize a bail bondsman. Bail bondsmen do not require payment of the entire amount set by the judge. Instead, the accused must post a premium, usually 10–­12 percent, to the bondsman. That premium is never returned regardless of the outcome of the case. If the accused person’s family can post the entire amount to the court, the full amount will be returned regardless of the outcome of a case so long as the accused appears in court. The judge decides the amount of bail to set in a given case in accordance with several factors. The prosecutor will proffer facts to the court based on the police accounts. He will also make a recommendation regarding the appropriate amount of bail given his assessment of the danger to society the accused may pose, as well as any risk of flight. The defense attorney will make arguments and present facts for the judge to consider relating to the accused’s ties to the community, work history, education, and other facts to paint a personal portrait of the accused. Each of these three actors, as with all people, have implicit racial biases that influence their actions at a bail hearing. Studies have shown that “[B]lack Americans are stereotyped as being less intelligent, lazier, and less trustworthy than white Americans.”66 Given these stereotypes, a prosecutor may view the job history, education, and community ties of the accused with more skepticism if the defendant is Black as opposed to white.67 Even though prosecutors do not set bail (that is the judge’s job), they have the choice to request bail in a certain amount or to recommend some form of supervised on unsupervised release. If ADAs perceive things less favorably, such as where the accused resides or his community ties, the ADA might incline toward a request for bail rather than a noncustodial pretrial arrangement. Cash bail is one of the key steps in the criminal legal system that is vulnerable to racial bias. Bail factors alone are subject to a high de-

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gree of individual discretion. Arraignments in criminal court are often fast-­paced affairs during which implicit biases can come into play. There are two steps prosecutors can take to help reduce the influence of their biases at bail hearings. First, prosecutors should utilize a detention eligibility framework that creates a finite number of cases for which the prosecutor will request bail. This will make prosecutors assess which cases actually require bail to be set rather than operating under the impression that only a select few cases should be eligible for release. Second, prosecutors should slow down and tailor the bail recommendation to the individual, not the charge. Implicit biases exist in quick decision-­making. When we slow down, our brains process information more efficiently and accurately.

Discovery John “JT” Thompson was wrongfully convicted not once but twice. Prosecutors made the strategic decision to proceed on an armed robbery case first, and the state won a conviction against JT. What the trial jury never knew was that the prosecutor in the case deliberately withheld blood-­spatter evidence showing that the actual perpetrator’s blood was type B. JT’s blood was type O.68 One month later, the prosecution tried JT on the second case, involving the murder of a hotelier. That wrongful robbery conviction strategically prevented JT from testifying. Largely because of the prior armed robbery conviction, prosecutors successfully argued that JT should receive the death penalty. JT served 18 years in prison—­including 14 on death row—­for crimes he did not commit. Gerry Deegan, one of the prosecutors who tried the case, confessed on his deathbed that he had hidden the DNA results proving JT could not have been the perpetrator.69 He also removed pants with the blood on them from the evidence room.70 Gerry confessed this to his colleague Michael Riehlmann, who kept quiet about that deathbed confession for five years before signing an affidavit. This happened simultaneously as an investigator discovered the difference in blood types. The Louisiana Supreme Court vacated the robbery conviction, and the death sentence was converted to a life sentence. JT was eventually retried on the murder charge and was acquitted in 35 minutes. JT would later say: “If I’d spilled hot coffee on myself, I could have sued the person who served me the

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coffee . . . but I can’t sue the prosecutors who nearly murdered me.”71 These were JT’s words reacting to the state supreme court’s reversal of his $14 million damages award in his civil suit against the District Attorney’s Office for the 18 years he wrongfully served in prison. Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana, and Korey Wise (known as the “Exonerated Five”) were children of color wrongfully convicted for a rape in New York City’s Central Park. Ava DuVernay’s Netflix series When They See Us chronicles their journey from arrest to wrongful conviction to exoneration and all that occurred in between. The title of the series aptly describes the very issue of implicit racial bias and how a majority of Americans implicitly see criminals when they see boys of color. The lead prosecutor for the city’s Sex Crimes Unit, Linda Fairstein, ignored the lack of evidence linking the kids to the crime because she was likely too concerned with closing a high-­profile case instead of solving a crime. There was no physical, DNA, or forensic evidence connecting the boys to the crime. Neither was there any evidence placing the boys at the scene of the crime. When the kids were forced to confess falsely, their versions and location of the events were inconsistent and did not match what the physical evidence suggested. Despite the lack of credible evidence implicating the boys, the prosecutors were still determined to convict them. Why would the prosecutor hide DNA results and physical evidence in JT’s case? Why did the lack of evidence implicating the Exonerated Five not raise sufficient doubt in the prosecutor about the boys’ culpability? Implicit racial bias is not the only answer. Both cases received a lot of media attention at the time, and the pressure to close high-­profile cases was acute. The district attorney offices prosecuting these two cases had an interest in securing convictions to demonstrate their competency and ability to establish law and order. Pursuant to a landmark United States Supreme Court case, Brady v. Maryland, prosecutors are required to turn over (disclose) to defense counsel evidence that implicates or exonerates a defendant In instances where prosecutors withhold exonerating evidence, research suggests this may occur due to a prosecutor’s fear of not being able to convict a person whom the prosecutor thinks is dangerous.72 Therefore, prosecutors’ implicit racial biases can influence the way they comply with eviden-

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tiary disclosure obligations under Brady. As the cases above illustrate, prosecutors’ failure to turn over evidence, or their inability to review a case objectively, can lead to innocent people spending time in prison for crimes they did not commit. If our system does not work for the innocent, then it cannot work for the guilty. Perhaps the most significant practice that can diminish the effects of bias in the evidentiary process is “open file” discovery. Under open file discovery, a defendant has access to the prosecutor’s entire file, which reduces the likelihood of any surprises at trial. In discovery schemes where the prosecutor makes judgments about which evidence to reveal and what may or may not be relevant or exculpatory, problems are more likely to ensue. Implicit bias surfaces when individuals need to make quick decisions. It also may come into play when there is an unstated but nevertheless firm belief that the defendant is dangerous. Automatic discovery eliminates any discretion about what information should be revealed, thereby ensuring that all information required to be disclosed pursuant to Brady and other important Supreme Court decisions is shared.

Plea-­Bargaining Since the 1970s, 97 percent of cases at the state and federal levels were resolved through a plea bargain.73 People simply are not exercising their right to go to trial as they have historically. A plea bargain, or plea deal, is an agreement between the prosecution and defense, sometimes with the requisite approval of a judge, to resolve the case without going to trial. There are instances where cases settle in the middle of a trial before a jury has reached a verdict. Plea deals typically include reducing a charge to a lesser one or dropping some charges so the person can plead guilty to fewer charges than originally filed. From the defense side, many factors enter into the decision about whether to go forward with a trial or to seek a plea bargain. Individuals accused of crimes will consider: (1) their culpability or lack of culpability; (2) the strength of the government’s case; (3) sentencing exposure; (4) faith in the jury; (5) faith in their attorneys; (6) the attractiveness of the offer; and (7) overall comfort with risk. Some of the many factors that prosecutors consider, according to the US Department of Justice,

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are: (1) the nature and seriousness of the offense or offenses charged; (2) the likelihood of obtaining a conviction at trial; and (3) the interests of the victim, including any effect on the victim’s right to restitution.74 A study out of Wisconsin shows the significant racial disparities in plea-­bargaining.75 Gender, age, criminal history, and seriousness of an offense can affect the plea deal, leading to longer prison sentences. Race is interwoven in all of these seemingly neutral factors, something that could lead to the expectation that Black defendants could receive lengthier sentences under their plea deals. However, even controlling for these factors, there is a significant Black-­white disparity in sentences as an outcome of plea deals.76 The greatest disparities appear to be driven by cases in which defendants have no prior convictions. This suggests that, in the absence of factors that might suggest a risk of recidivism (offending again), prosecutors may be using race as a proxy for the likelihood of recidivism.77 This disparity is one of many contributing factors to the overincarceration of Black males in Wisconsin, particularly from Milwaukee. “Over fifty percent of Milwaukee’s [B]lack males between 30 and 50 years old are serving, or have at some point served, time in a state prison.”78 The Wisconsin study found that “white defendants are over 25 [percent] more likely [to] see their top charge dropped or amended to a lesser one than Black defendants.”79 This leads to white defendants charged with felonies having their charges reduced to misdemeanors at a rate of 15 percent more than similarly charged Black defendants.80 Moreover, “white defendants initially charged with misdemeanors are approximately 75 percent more likely than Black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.”81 Implicit racial bias certainly plays a role in these disparities. A prosecutor’s implicit racial biases can be activated by an accused person’s race, thereby making the accused person appear more criminal or making the prosecutor believe the person has a higher tendency to recidivate.82 These unconscious assumptions can contribute to a practice of offering worse plea deals to Black defendants than whites. A related phenomenon may be in play in plea-­bargaining: in-­group favoritism, also called “in-­group bias.” This bias is the tendency to favor one’s own group, its members and traits over out-­group members. This occurs when “people automatically associate the in-­group, or ‘us,’ with

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positive characteristics, and the out-­group, or ‘them,’ with negative characteristics.”83 It is related to the familiar notion of “us” versus “them” but operates on an unconscious level. “Stereotypes” are overgeneralized beliefs that we hold about groups and people within that group. Stereotypes can be both positive and negative. In situations where a white prosecutor is evaluating a case involving a white defendant, positive stereotypes can activate on an unconscious level.84 This can cause the prosecutor unknowingly to associate the white defendant with more positive stereotypes: he is essentially a good person, reasonable, and trustworthy.85 Thus, a reduced association of criminality can lead to a better plea deal with a shorter sentence. By contrast, for a cross-­racial scenario with a white prosecutor and Black defendant, the opposite may occur. Implicit racial stereotypes might trigger associations with violence and hostility, leading to a worse plea offer for the Black defendant and the possibility of a longer sentence.86 While there are different phenomena that could influence plea deals between prosecutors of color and Black defendants, it is salient to address the white prosecutor/Black defendant scenario because 95 percent of elected prosecutors are white.87 As a counterweight to implicit bias, prosecutors should ensure they are tracking race and gender data as it relates to the types of plea deals made. This feedback loop can help identify any trends in the plea deals offered by individual prosecutors. Tracking can also help the office assess the aggregate the ways in which the office resolves cases and for which defendants. In addition to tracking data, prosecutors should adopt the practice of articulating, on the record, the purpose of the plea deal; the expected impact on the survivor of crime, the accused person, and the overall community; as well as the cost associated with the resolution. Making a record of the “justice impact” can force the prosecutor to slow down and think more carefully about the ways a proposed deal actually advances justice.

Jury Selection Jury duty should be regarded as one of the most sacred civic duties in this country. However, such is not always the case. It is a unique way to access power, ensuring that a person receives a fair trial and that the will of the community is engaged in the decision to convict or acquit

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someone. Given the importance of the jury and its centrality in our notions of justice, it is not surprising that juror discrimination is illegal and that there are protections in place to thwart it. Yet, juror discrimination still exists. When an accused person goes to trial, he and his counsel take part in deciding who will sit in judgment as part of the jury. So does the prosecutor. This process of jury selection is called “voir dire.” During voir dire, each side is essentially deciding who they do and do not want to sit on the jury panel. There are two ways to remove (“strike”) a person from the pool of prospective jurors. The first is by utilizing a strike for “legal cause,” and the second is by using a “peremptory” strike. Striking someone for legal cause is typically rooted in a reason that demonstrates a prospective juror’s inability to be fair or impartial. It can also be utilized if a prospective juror has a scheduling conflict, a language barrier, or some other reason that would prevent the individual from being able to participate fully. When using a strike for cause, the attorney must provide an explanation on the record to the court. Each side in the trial possesses an unlimited number of strikes for cause during voir dire. A peremptory strike is utilized typically when the lawyer does not want that person on the jury for any number of reasons. Each side possesses only a limited number of peremptory strikes during voir dire. Usually, the removal of a juror through a peremptory strike is rooted in strategy. When a lawyer uses a peremptory challenge, the lawyer does not need to provide an explanation unless the other party suspects that the lawyer is striking individuals from the jury based on race or gender. If the other party suspects juror discrimination, he can mount a challenge under Batson v. Kentucky.88 That landmark case creates a framework for assessing whether a peremptory strike is motivated by an illegitimate reason such as the prospective juror’s race or gender. Striking Black jurors once was an explicit strategy sanctioned by some prosecutors’ offices.89 The Dallas County District Attorney’s Office developed and used a manual giving line prosecutors advice on which jurors to keep off of any jury.90 The manual cautioned prosecutors: “Do not take Jews, Negroes, dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.”91 Shortly after Batson was decided in 1986, new strategies emerged on how to sidestep the protections under Batson and remove Black candidates from serv-

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ing on a jury. In Pennsylvania, there is an audio recording specifically describing how to ask questions of Black jurors and then to provide a seemingly race-­neutral reason for removing them even though the peremptory strike was racially motivated.92 Even when there has not been an explicit training session or manual documenting how to make racially motivated strikes, some prosecutors have learned how to strike the voice of difference from the jury while avoiding any professional sanctions from the court. Allow me to offer a few examples. In Louisiana, one court permitted a Black juror to be removed because, according to the prosecutor, “he looked like a drug dealer.”93 In South Carolina, a judge allowed the prosecutor to use a peremptory strike against a Black juror and did not question the prosecutor’s explanation when he said that the Black juror “shucked and jived” when he walked to the witness box.94 In Contra Costa County, California, an appellate court found no illegality in the prosecutor’s utilization of strikes to remove all the Black candidates from consideration in a 2017 trial.95 However, in his concurring opinion, the appellate court judge, P. J. Humes, noted: “The Batson framework not only makes it easy to assert justifications that mask bias but also makes it nearly impossible for trial courts to meaningfully evaluate those justifications.”96 He went on to declare: “The time has come for the Legislature, Supreme Court, and Judicial Council to consider meaningful measures to reduce actual and perceived bias in jury selection.”97 A recent case of juror discrimination in Mississippi involves a man named Curtis Flowers.98 Mr. Flowers went to trial six times. Three of his convictions were overturned by the Mississippi Supreme Court. Two ended in mistrials. Mr. Flowers was convicted in his sixth trial, but the conviction was overturned by the United States Supreme Court due to racial bias in jury selection. The Court found that the district attorney unconstitutionally kept Black people off the jury. The same district attorney, Doug Evans, tried every one of the six cases. Bias in jury selection has been explicit and implicit. As the examples above make plain, protections such as the Batson decision are not enough to prevent bias from infecting jury selection. However, understanding the ways implicit racial bias influences jury selection can help. The stereotypes applied to Black people skew the lens through which they are seen either as appropriate or as unfit. Some prosecutors will

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implicitly associate Black jurors with criminality and strike those jurors, assuming they will be more sympathetic to the defense’s case.99 Other prosecutors may implicitly stereotype Black jurors as having a disrespect for law enforcement and assume that Black jurors will reflexively oppose prosecution of cases involving drugs. Therefore, they strike Black jurors. These assumptions are all being made outside of what is revealed during jury selection. Just by looking at a juror, implicit racial biases may be activated, and attorneys’ perspectives will be shaped and possibly distorted as they decide whether that juror should sit in judgment of the defendant on trial. Another phenomenon that can surface during jury selection is racial anxiety. “Racial anxiety” is the discomfort sometimes experienced during a cross-­racial interaction.100 White people will often experience this anxiety, fearing their words or actions will come off as racist and that as a result they will not be trusted or they will be met with hostility.101 Black people often fear they will be discriminated against or experience hostile or distant treatment.102 Racial anxiety may in and of itself create the negative experiences people are worried about in the first place. When there are cross-­racial interactions, as in jury selection, racial anxiety can influence the dialogue between the prosecutor and jurors. For white people, racial anxiety can manifest itself in awkward attempts to connect and less eye contact; one’s tone of voice might be heard as less friendly and engaging.103 Racial anxiety also affects a person’s cognition, focus, and productivity.104 Given that jury selection is about the interaction between the attorneys and the jurors, behavior interpreted as indicators of a person’s lack of trustworthiness or candor might simply be the manifestation of racial anxiety. Trial lawyers will often say that an advocate can win or lose a case during jury selection. There are a host of factors at work in deciding who ultimately gets selected as a juror for a given case. However, the fairness of a trial should not be jeopardized due to the implicit biases or racial anxiety of a prosecutor. Jury selection is one of the places where implicit biases can play a particularly pernicious role. The selection of jurors requires very quick decision-­making based on only the most rudimentary information about a prospective juror. The Batson framework allows for use of any justification as long as that justification is not race-­ based. Consequently, it is vital that prosecutors’ offices ensure that line

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prosecutors take steps not to violate the rights of people of color to sit on juries, particularly in the case of Black and Latinx community members. A few best practices should be considered. First, during voir dire, prosecutors often ask questions related to a person’s contact with law enforcement or the criminal legal system. The rationale behind the question is that having had contact with the legal system skews one’s sympathies away from the state and toward the accused. In this way, prior criminal system contact becomes a basis for striking those jurors. The problem is that the enforcement practices of most police departments concentrate their attention and arrests in marginalized communities, making it more likely that those with “justice contact” will be Black and Brown people. Thus, prosecutors’ offices should adopt an antibias policy pursuant to which they will not ask, or use, questions regarding a person’s contact or experience with law enforcement or the criminal legal system. If those types of questions are used, then affirmative answers should be presumptively invalid reasons for striking a juror. Second, prosecutors should implement training that focuses on the benefits of selecting juries that represent a fair cross-­section of the community in reaching a just outcome and in preserving the integrity of the justice system. Third, the prosecutors’ offices should enforce strict adherence to nondiscrimination polices in jury composition by reviewing jury trials in which Black and Brown people are excused from jury service to determine whether there are patterns and practices that are discriminatory. Finally, prosecutors’ offices must work diligently to hire attorneys of color. This is not to suggest that prosecutors of color do not also have implicit biases. But diversity in any office can help to surface biases that might otherwise be overlooked.

Postconviction Litigation The role of the prosecutor is to seek justice, not convictions. And justice is not limited by time. Implicit racial biases are one of the many factors contributing to prosecutors getting things wrong. Sometimes those errors lead to innocent people being convicted for crimes they did not commit. When that happens, the role of the prosecutor does not change and should embody the understanding that seeking justice may mean supporting the exoneration of an innocent person. Postconviction

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litigation is often an overlooked area in which prosecutors utilize their discretion, yet it is an important point along the timeline despite the fact that the case has already been adjudicated. Let’s examine a few examples. In 1990, William Lopez was wrongfully convicted of murder in Brooklyn.105 Twenty-­three years later, in 2013, Mr. Lopez’s conviction was overturned by a federal judge, who described the case as “rotten from day one” and ordered a new trial. The federal judge also encouraged Brooklyn District Attorney Charles Hynes to apologize. Instead, Mr. Hynes refused to drop the charges and appealed the federal judge’s decision to vacate the conviction. That same year, Mr. Hynes lost his bid for reelection to Ken Thompson. Before the appeal was heard, Mr. Thompson, Brooklyn’s first Black district attorney, filed a motion to dismiss the appeal. In 1994, Jerome Morgan was wrongfully convicted of murdering Clarence Landry at a sixteen-­year-­old’s birthday party in New Orleans. Jerome was 17 when he was accused of murder. The trial lasted one day, and Jerome was identified as the gunman by two young partygoers, Kevin Johnson and Hakim Shabazz, who were wounded during the shooting. Innocence Project New Orleans (IPNO) discovered errors in disclosures made by the prosecutors at trial, and IPNO cited problems with the identification procedures. Hakim and Kevin later recanted their trial testimony, which was the only evidence linking Jerome to the crime. In 2014, Jerome’s conviction was vacated and a new trial was ordered. Hakim and Kevin had recanted their trial testimony, indicating that detectives had coerced them into identifying Jerome as the shooter. But Orleans Parish District Attorney Leon Cannizzaro fought the ruling reversing the conviction and made clear his intention to reprosecute Jerome. His office also charged Hakim and Kevin with perjury, leading the two to exercise their right not to testify at a new trial for Jerome. Mr. Cannizzaro lost the appellate battles and dismissed the charges in 2016. Hakim and Kevin went to trial and were acquitted in 2017. In 2016, Evangelisto Ramos was convicted of second-­degree murder in New Orleans. At his jury trial, 10 jurors voted “guilty” and two jurors voted “not guilty.” Instead of the mistrial that would have occurred under the laws in 48 other states, Mr. Ramos was convicted and sentenced to life without parole. At the time in Louisiana, the threshold for a verdict was 10 guilty votes; this is called a “nonunanimous verdict.” In

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2018, Louisianans voted to amend their constitution to require unanimous verdicts as in every state but one (Oregon). Mr. Ramos’s appeal, challenging the nonunanimous jury rule that convicted him, went all the way to the United States Supreme Court. The Court ultimately reversed his conviction, finding that the Sixth Amendment right to jury requires a unanimous verdict to convict a defendant of a serious offense.106 The racist origins of Louisiana’s nonunanimous jury scheme are clear. They date back to the Reconstruction era and were formalized at Louisiana’s constitutional convention of 1898. As discussed earlier, the advancement of Blacks in the South during this time frame was met with stark resistance from whites. That backlash extended to the notion that Black people might sit in judgment on a jury. Therefore, Louisiana state legislators designed nonunanimous verdicts to make it easier to convict Black people as well as to silence the Black vote if any Black people were able to get on a jury. The majority of people convicted by nonunanimous verdicts were Black, and the majority of people whose votes did not count on a jury were Black.107 Louisiana’s nonunanimous jury scheme was rooted in racism, Oregon’s is rooted in anti-­Semitism, and neither belongs in our criminal legal system. However, that was not the position that the Oregon and Louisiana state attorneys general took in their briefs filed with the Supreme Court opposing Mr. Ramos’s appeal. Despite knowing about the racist and anti-­Semitic origins of nonunanimous juries, as well as how the law disparately impacted Black people in Louisiana, the attorneys general opposed any change to the law. Despite the unreliability of nonunanimous verdicts, both attorneys general feared the impact that a ruling in favor of Mr. Ramos would have on the number of people previously convicted under their nonunanimous verdict schemes. They were not concerned about the possibility of people being wrongfully convicted; they feared the ripple effect that would be generated by a ruling in favor of Mr. Ramos. In these instances of prosecutors opposing exonerations or fighting to uphold racist and anti-­Semitic laws, confirmation bias is playing a role. “Confirmation bias” is when our brains evaluate and absorb information based on stereotypes confirming our beliefs while ignoring data that contradicts them.108 There are times when a prosecutor will have to decide whether to join the defense in overturning a conviction.

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Confirmation bias makes it difficult for prosecutors to view people they have convicted as anything other than what negative stereotypes suggest. This is particularly true when prosecutors, much like the majority of people in the United States, implicitly associate Black people with criminality. Therefore, when there are claims of innocence supported by facts and evidence, it is sometimes hard for prosecutors to believe those facts and evidence because they contradict what the prosecutors believe to be true: that the person is a guilty criminal. Confirmation bias does not only influence a prosecutor’s perspective on individual cases; it applies to large, sweeping change as well. As seen with Mr. Ramos’s appeal, the implications of the Supreme Court ruling that nonunanimous verdicts are unconstitutional directly impugns the validity of all the nonunanimous convictions attained in Louisiana and Oregon. These are convictions that the prosecutors in those states believed were accurate. Prosecutors should beware of confirmation bias in post-­conviction litigation. Prosecutors working on the appeal should practice taking the perspective of the accused person and should review the record assuming the previous prosecutor got it wrong. The creation of Conviction Integrity Units with participation in the unit from individuals from outside the office will help to address confirmation bias. In addition, specific guidelines that include reviewing cases for instances of racial bias, and prosecutorial misconduct in addition to issues of false confessions, fabricated testimony, proper discovery disclosures and checking forensics will help provide greater accountability and integrity in the convictions obtained by the office.

Making the Deliberate Decision to Acknowledge the Impact of Race If we are to truly achieve race equity in our criminal legal system, conversations about race, racism, and the prosecutor’s role in reducing the racial and ethnic disparities of our jails and prisons need to become the norm for the twenty-­first century prosecutor. Hiring diverse staff to more accurately reflect the community being prosecuted, although helpful and encouraged, is not enough on its own. In the realm of implicit racial bias, there are interventions that can and should be taken now to reduce their impact.

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( 1) Take the Implicit Association Test. Treatment follows the diagnosis. The very first step twenty-­first-­century prosecutors must take to reduce the impact that their implicit racial biases have on their exercise of discretion is to know what their biases are. We all have biases, even toward our own identity group. But prosecutors, as individuals whose decisions profoundly affect the lives and life outcomes of individuals in the justice system, have an obligation to take steps to detect the strength of their subconscious associations and to work to control the effects of those automatic assumptions. Most prosecutors have egalitarian values, making it very difficult to accept their own implicit racial biases when that likely contradicts their self-­perception and external values. Normalizing the discussion of implicit biases in prosecutors’ offices will help to surface these biases, to reduce the discomfort and resistance to acknowledging bias, and to establish protocols to reduce bias. If all new prosecutors take the Implicit Association Test as part of their standard onboarding and training, it will set the stage for addressing the biases at all the different discretion points. ( 2) Collect Data. In addition to the Implicit Association Test, data can reveal implicit biases. Twenty-­first-­century prosecutors need to collect and store gender and racial demographic information of the prosecutor and defendant relating to the action taken at each discretionary point.109 Doing so allows the office to identify any trends or patterns that normally would not be noticed. This data should be reviewed on a quarterly basis and should be incorporated into the annual performance evaluations of the line prosecutors. ( 3) Diversify Exposure to Community. A prosecutor should engage the community beyond the courtroom. Repetitious overexposure to an identity group in criminal cases reinforces and confirms stereotypes that may already exist unconsciously. Expanding a prosecutor’s positive, prosocial interactions with their outgroup and the overrepresented identity group can contribute to bias reduction in the long term.110 This can vary from the neighborhoods in which prosecutors live to formalized community engagement events the office sponsors. By having prosecutors regularly exposed to positive images and relationships with members of the community

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they represent, they can begin to nurture new and positive implicit associations.111 This community interaction can sometimes happen more naturally depending on the in-­group and out-­group identities of the prosecutors in the office. ( 4) Mute Racial Cues during Screening. Racial cues, such as names, addresses, and race-­identifying information, can activate the implicit racial biases of the prosecutor. Masking these cues—­making them unavailable to the prosecutor screening the case—­can reduce the role that implicit racial biases play in deciding what charges to file.112 By masking the racial cues, the charging decision can then be focused on the alleged conduct and the supportive facts. ( 5) Engage in Individuation. This strategy encourages learning individual characteristics of a person in order to prevent stereotypical conclusions from being made about them. Imagine if the first thing a prosecutor learned about an accused person were things such as their hobbies, parenting responsibilities, and employment. In the prosecutor’s mind, such individual characteristics establish a different frame through which to view the accused person. Currently, most prosecutors establish a frame of criminality around the accused person that makes it difficult to find positive personal characteristics that fit into that frame. By evaluating the accused person based on individual attributes and not group stereotypes, prosecutors can reduce the implicit racial bias that may be held toward that person’s identity group.113 ( 6) Develop a “Bias Override Card.” Because we know that a prosecutor’s implicit racial bias can influence every decision during a case, I recommend asking questions at each of the discretion points.114 A “Bias Override Card” would be a series of questions a prosecutor would have to consult or complete before acting. For example, this card could include questions such as What assumptions have I made about the accused person’s identity group? How is my decision specific to this accused person? and What evidence supports any conclusions I have drawn? Bias override cards have been introduced in some jurisdictions with judges. The twenty-­first-­century prosecutor should be familiar with the racist history of this country and the evolution from slavery to mass incar-

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ceration. The stereotypes of many people of color in this country have racist origins colored by the historical treatment of these people. This history provides the foundation for so many of the implicit racial biases we know people have. By utilizing some of the described interventions, the twenty-­first-­century prosecutor can reduce the role that implicit racial biases play in their pursuit of justice. Notes

1 I have changed his name. 2 I have changed his name. 3 Jacob Kang-­B rown, Eital Schattner-­E lmaleh, and Oliver Hinds, People in Prison in 2018., Vera Institute of Justice, 2019. 4 See Andre Perry, Know Your Price: Valuing Black Lives and Property in America’s Black Cities (2020). 5 U.S. Department of Health and Human Services, Office of Minority Health, www. minorityhealth.hhs.gov. 6 NAACP, Criminal Justice Fact Sheet, www.naacp.org. 7 Elizabeth Hinton, LeShae Henderson, and Cindy Reed, An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System, Vera Institute of Justice, 2018. 8 Id. 9 See Ibram X. Kendi, Stamped From The Beginning: The Definitive History of Racist Ideas in America 10 (2016). 10 Id. at 5. 11 See Ijeoma Oluo, So You Want To Talk about Race 26 (2018). 12 Id. at 28. 13 U.S. Const. Amend. XIII (emphasis added). 14 Id. 15 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 26 (2010). 16 Id. 17 Id. at 27. 18 Id. at 29. 19 The 1619 Project, N.Y. Times Magazine, Aug. 14, 2019. 20 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 28 (2010). 21 See Douglas A. Blackmon, Slavery by Another Name: The Re-­E nslavement of Black Americans from the Civil War to World War II (2009). 22 Id. at 31. 23 Id.

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24 See Kahlil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010). 25 Id. 26 Amy Held, Men Arrested at Philadelphia Starbucks Speak Out, NPR (Apr. 19, 2018), www.npr.org. 27 Carla Herreria Russo, Woman Calls Police on a Black Family for BBQing at a Lake in Oakland, HuffPost (May 11, 2018), www.huffpost.com. 28 Christina Caron, A Black Yale Student Was Napping and a White Student Called the Police, N.Y. Times (May 9, 2018), www.nytimes.com. 29 Angola Museum, History of Angola, www.angolamuseum.org. 30 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 31 (2010). 31 Angola Museum, History of Angola. 32 Parchman’s Plantation, www.nytimes.com. 33 Id. 34 Id. 35 See Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror (2017). 36 See U.S. Social Security Administration, The Decision to Exclude Agricultural and Domestic Workers form the 1935 Social Security Act, www.ssa.gov. 37 See Servicemen’s Readjustment Act of 1944, www.loc.gov. 38 Bureau of Justice Statistics, Household Poverty and Nonfatal Violent Victimization, 2008–­2012, www.bjs.gov. 39 See Perception Institute, Implicit Bias Definition and Personal Interventions, www. perception.org. 40 Wilhelm Hofmann, Bertram Gawronski, Tobias Gschwendner, Huy Le, and Manfred Schmitt, A Meta-­Analysis on the Correlation between the Implicit Association Test and Explicit Self-­Report Measures, 10 Pers. Soc. Psychol. Bull (Oct. 2005) (a meta-­analysis on the correlation between the implicit association test and explicit self-­report measures—­PubMed nih.gov). 41 Id. 42 See Claudia Goldin and Cecilia Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians (2000). 43 Based on the lived experience of William C. Snowden, who has played the cello for more than 25 years. 44 See Claudia Goldin and Cecilia Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians (2000). 45 Id. 46 Id. 47 Id. at 738.

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48 L. Song Richardson and Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage, 122 Yale L.J. 2627, 2630 (2013). 49 See Dr. Arin N. Reeves, Written in Black & White—­E xploring Confirmation Bias in Racialized Perceptions of Writing Skills (2014). 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id. 56 Rachel Godsil and HaoYang (Carl) Jiang, Prosecuting Fairly: Addressing the Challenges of Implicit Bias, Racial Anxiety, and Stereotype Threat (Winter 2018), perception.org. 57 John Paul Wilson, Kurt Hugenberg, and Nicolas O. Rule, Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat, 113 J. of Personality & Social Psychology 59 (2017). 58 Sara Steen, Images of Danger and Culpability: Racial Stereotyping, Case Processing, and Criminal Sentencing (2005). 59 Godsil and Jiang, Prosecuting Fairly. 60 Id. 61 See Phillip Atiba Goff, The Essence of Innocence: Consequences of Dehumanizing Black Children, Journal of Personality and Social Psychology 106, no. 4 (2014): 52. 62 Robert J. Smith and Justin D. Levinson, The Impact of Implicit Racial bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012). 63 American Bar Association, Criminal Justice Standards for the Prosecution Function #3–­4.3, Discretion in Filing, Declining, Maintaining, and Dismissing Criminal Charges (2017). 64 Id. 65 Id. 66 Smith & Levinson, The Impact of Implicit Racial Bias at 814. 67 Id. 68 Evidence a prosecutor is trying to use in a case is called “discovery.” 69 James Ridgeway & Jean Casella, 14 Years on Death Row. $14 Million in Damages? Mother Jones (Oct. 6, 2010), www.motherjones.com. 70 Id. 71 Emily Langer, John Thompson, Accused Murderer Exonerated After 14 Years on Death Row Dies at 55, Washington Post (Oct. 5, 2017) www.washingtonpost.com. 72 Smith and Levinson, The Impact of Implicit Racial Bias, at 814. 73 National Association of Criminal Defense L awyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (2018).

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74 U.S. Department of Justice, Principles of Federal Prosecution: 9–­27.420, Plea Agreements—­Considerations to be Weighed, www.justice.gov. 75 Carlos Berdejo, Criminalizing Race: Racial Disparities in Plea Bargaining, 59 B ost. Coll. L. Rev. 1187 (2017). 76 Id. 77 Id. at 1191. 78 Id. at 1204. 79 Id. at 1215. 80 Id. at 1191. 81 Id. 82 Id. at 1238. 83 Robert J. Smith, Justin D. Levinson, and Zoë Robinson, Implicit White Favoritism in the Criminal Justice System, 66 Ala. L. Rev. 871, 895 (2015). 84 Smith and Levinson, The Impact of Implicit Racial Bias at 817. 85 Id. 86 Id. 87 Women Donors Network, Justice for All, https://wholeads.us. 88 Batson v. Kentucky, 476 U.S. 79 (1986). 89 See Equal Justice Initiative, Illegal Discrimination in Jury Selection: A Continuing Legacy (2010). 90 See Miller-­El v. Cockrell, 537 U.S. 322 (2003). 91 Id. 92 Id. at 15. 93 State v. Crawford, 873 So. 2d 768, 783 (2004). 94 State v. Tomlin, 384 S.E.2d 707, 708–­09 (1989). 95 People v. Gary Timothy Bryant, Jr., et al. (2019), www.courts.ca.gov. 96 Id. 97 Id. 98 See Flowers v. Mississippi (2019), www.supremecourt.gov. 99 Smith and Levinson, The Impact of Implicit Racial Bias, at 819. 100 See Perception Institute, Transforming Perceptions: Black Men and B oys (2014). 101 Id. 102 Id. 103 Id. 104 See Rachel D. Godsil and L. Song Richardson, Racial Anxiety, 102 Iowa L. Rev. 2235 (2017). 105 See William Lopez, All New York CIU Murder Exonerations, The National Registry of Exonerations, www.law.umich.edu. 106 Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390 (2020), 165n106. 107 See Tilting the Scales Series: Everything to Know about Louisiana’s Controversial 10–­2 Jury Law, Times-­P icayune, May 4, 2018, www.nola.com.

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108 See Kim Rossmo and Joycelyn Pollock, Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective, 11 Northeastern U. L. Rev. 790 (2019). 109 Godsil and Jiang, Prosecuting Fairly. 110 Id. 111 Id. 112 Smith and Levinson, The Impact of Implicit Racial Bias, at 825. 113 See Susan T. Fiske and Steven L. Neuberg, A Continuum of Impression Formation, from Category-­Based to Individuating Processes: Influences of Information and Motivation on Attention and Interpretation, 23 Advances in Experimental Social Psychology 1 (1990). 114 Godsil and Jiang, Prosecuting Fairly.

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5

There Are Children Here Reconceiving Justice for Adolescent Offenders Kim Taylor-­T hompson

“You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice because, Bobby Bostic, you will die in the Department of Corrections.”1 With those harsh words, Circuit Court Judge Evelyn Baker sentenced 16-­year-­old Bobby Bostic to a term of 241 years in a Missouri prison for a series of armed robberies and assaults that took place over the course of a single December evening in 1995. Bobby had not killed anyone, but Judge Baker effectively sentenced him to die in prison for the nonhomicide crimes he committed as a teenager. In 2017, Bobby petitioned the United States Supreme Court to hear his case and to overturn his sentence as unconstitutional under the Eighth Amendment. Seventy-­five prominent criminal justice leaders, including former United States Solicitors General Kenneth Starr and Donald Verrilli, former Acting United States Attorney General Sally Yates, and former FBI Director William Webster, filed an amicus brief along with 13 current elected chief state prosecutors and nine former judges requesting that the Court overturn Bobby’s sentence as cruel and unusual punishment.2 Judge Baker even added her name to the petition for certiorari.3 Despite the seeming universal condemnation of this sentence as excessive in light of our understanding of the adolescent brain and an adolescent’s capacity to change, the Supreme Court declined to hear the case.4 Bobby is currently serving a longer sentence than any adolescent offender in Missouri who did not commit murder.5 He will be eligible for parole in 2091 at the age of 112. What led to this outcome? Bobby and an older teenage friend, Donald Hutson, had not been looking to rob anyone that December evening. But then they happened to see something unexpectedly tempting: a car 167

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loaded with Christmas presents. On impulse, the two teens robbed the group of six people who had volunteered to deliver those gifts to the needy in north St. Louis. During the armed robbery, shots were fired by both boys. A bullet grazed the skin of one man in the group who later required a tetanus shot. No one else suffered any physical injuries. Moments later, and only a few blocks away, Hutson and Bobby saw another woman delivering gifts for charity. This seemed to be yet another opportunity to score gifts and money. Bobby and Hutson forced the woman into her car, and Hutson put a gun to her head, demanding money. Although she surrendered her purse, Hutson was not satisfied. Hutson put his hands in her pants, claiming he wanted to check to see if she had any hidden money. The woman later testified at trial that she thought Hutson planned to rape her but that Bobby prevented it and convinced Hutson to let her go. The public uproar immediately following the report of these robberies was swift and intense. The media had featured the armed robberies as top stories and front-­page news, expressing alarm at the particularly callous nature of the crimes. When the police arrested Bobby and Donald Hutson shortly after, the public craved vengeance. These offenses occurred at the height of the fear of, and furor over, the supposed coming tide of “superpredators.”6 The facts of the case, as reported by the media, seemed to confirm the racist myth that these kids were dangerously different: predatory and irredeemable. Ironically, had the media and general public looked beyond that tidy public narrative to examine the grim details of Bobby Bostic’s life, they would have discovered a different story: Bobby and his family were as vulnerable as the needy families that the seven volunteers were looking to serve that evening. Bobby had been born into a world of bad facts. One of four children, Bobby rarely experienced anything approaching security or stability. His family lived in north St. Louis, one of the poorest sections of the city. Throughout Bobby’s childhood, his family had endured the type of homelessness that is perhaps less visible but is nonetheless profoundly destabilizing. They moved constantly from relative to relative just to keep a roof over their heads. Bobby’s mother tried to care for herself and her family, but she struggled with addiction throughout her life. Sometimes the family had to fend for itself. Bobby’s father was absent, so when the kids were hungry, they turned to Bobby. He was the oldest boy

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in the family. Some days, he would bring home the school lunch that the state provided so his sisters and brother would have something to eat. Other days, when matters got worse, he would steal food for the kids to eat. Bobby tried to step into adult shoes well before he was ready. At age 10, Bobby began experimenting with drugs and alcohol in an obvious cry for help. No one seemed to be listening. Bobby lived and grew up in a community that was on the wrong side of the tracks. As with most kids his age, once Bobby became a teenager he enjoyed spending time outside in the neighborhood. But Bobby would soon learn the perils of his environment. His younger brother, Shawn, was shot in an apparent gang-­ related turf battle and was left paralyzed. Once again, trauma defined and tilted his world. Bobby lost what little faith he might once have had that anyone could protect him against the very real dangers in his life. He had learned from an early age to rely on himself, and he therefore started carrying a gun for self-­protection. Bobby looked for security and comfort wherever he could find them, but such things eluded him. School had the potential to fill that void, but it did not. In fact, shortly before the events that December night, Bobby had dropped out of high school. He had begun to get into trouble with the law and started to amass a number of arrests. Multiple contacts with the legal system did not raise flags or engage any services for him. His mother, despite her own personal demons, did her best to advise and guide him. But as is so often the case with teenagers, Bobby’s peers and neighborhood had louder voices and greater influence. One friend to whom he turned was 18-­year-­old Donald Hutson. Hutson, the older boy with whom Bobby committed these crimes, has admitted to being the aggressor that December night and has expressed regret that “I put him in that predicament in the first place.”7 Unlike Bobby Bostic, though, Hutson entered a plea of guilty to all counts of robbery, attempted robbery, assault, and kidnapping. Hutson’s parole eligibility date was in 2020. Following the arrest of the two teenagers, prosecutors extended the identical plea offer to Bobby: 30 years in prison. Prosecutors were not inclined toward leniency. The public outrage over the armed robberies had given them permission—­even a perceived mandate—­to deliver a harsh response. There certainly was little, if any, public pressure placed on prosecutors to consider Bobby’s age or developmental immaturity

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as mitigating factors in fashioning a plea deal. But his age and immaturity would later play a determining role in his own assessment of the justice options he faced. Anyone who has spent time with an adolescent knows the difficulty teenagers experience conceptualizing future consequences. It is nearly impossible for a 16-­year-­old Black boy to imagine his life thirty years from that point. So, it should come as no surprise that agreeing to enter a guilty plea that guaranteed he would not see the light of day again until age 46 proved too much of a hurdle for Bobby. Besides, peers in jail were mistakenly advising Bobby that any sentence he received after trial could not be worse. It is perhaps a testament to the power of adolescent peer influence that he chose to follow their advice rather than the contrary recommendations of both his family and legal counsel. Bobby rejected the plea offer and elected to go to trial. As a teenager, he thought he knew best. He did not. At 16, Bobby was not old enough to drink or vote, but the prosecutor’s office certified him as an adult for trial. At the conclusion, a jury convicted him of eight counts of armed criminal action, three counts of attempted robbery, two counts of assault, one count of kidnapping, and one count of possession of marijuana. During trial, Bobby did not cry. He did not appear remorseful upon hearing the jury’s verdict of guilt. Bobby submitted several letters to the court before sentencing, apologizing for how he behaved when leaving the courtroom after the verdict, explaining why he did not cry even though he felt pain at the announcement of the verdict, and asking for leniency. He also expressed frustration, as the teenager that he was, over the trial and his treatment by the police and prosecutor. The prosecutor asked Judge Baker to impose consecutive sentences on each of the counts. He argued: “These were good-­hearted people, all of them. And they ran into two mean-­ hearted men. They’re not boys; they’re men” (emphasis added). That view mirrored and cemented the judge’s assessment. The judge saw an opportunity to set an example. She had reviewed Bobby’s letters, and instead of excusing them as expressions of frustration and fear mixed with a bit of teenage bravado, she viewed them as something more calculated and troubling. She saw Bobby as self-­absorbed and interested only in trying to deflect blame from himself: “You have expressed no remorse. You feel sorry for Bobby. Bobby doesn’t want to do this time. Bobby doesn’t want to do this. Bobby’s feelings are hurt.

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Poor little Bobby. . . .” Judge Baker then added a final extraordinary comment: “Your mandatory date to go in front of the parole board will be the year 2201. Nobody in this room is going to be alive in the year 2201.” In 2018, Judge Baker considered Bobby’s sentence to be one of her greatest regrets.8 In many ways, Bobby’s case serves as a cautionary tale. The massive efforts to correct what occurred in Bobby Bostic’s case through appeals, clemency applications, and certiorari petitions proved futile in the end. The painful lesson is that justice mistakes are rarely fixed after the fact. Instead, when these cases present, prosecutors have the power to craft a different trajectory so long as they remain open and alert to the huge interests at stake from the start. This means understanding what went wrong in a case such as Bobby’s and then exercising discretion in ways that might lead to a fairer assessment of his conduct and capacity for change that decision makers recognize later in retrospect. What were the missed opportunities? First, the prosecutors handling the case made the decision to try Bobby as an adult. The fiction that the violence of an offense somehow transforms a young person into an adult seemed to animate the charging decision. As a Black child, Bobby was subject to assumptions and attitudes about his behavior that were influenced by race. The conduct of a young person of color too often will be seen as more deviant, more pathological, and more mature than the acts of a white child. Being alert to those assumptions in the exercise of discretion is critical if one is to counter them. Second, ensuring public safety necessarily involves more than securing a lengthy sentence. It means understanding the myriad tools that a prosecutor has at her disposal to impact the individual and the community positively. Bobby had obviously needed social services and perhaps even mental health interventions, which might have helped him make a different set of choices. But when prosecutors do not know much about the neighborhood and family conditions that a young person navigates, that lack of proximity enables prosecutors to see the accused as a dangerous “other” and not as a child. In addition, owning up to those early system failures might have enabled prosecutors to fashion a different response other than the easy choice of a lengthy sentence. Finally, prosecutors failed to consider his age and developmental immaturity. Using both a developmental filter and a racial justice lens can help a prosecutor interested in promoting

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fairness in her justice decisions to better assess and address the criminal conduct of young people. In recent years, a growing number of prosecutors have won local elections promising meaningful criminal justice reform. Their platforms have articulated bold ambitions: embracing community-­oriented approaches to public safety, looking to address and stem the tide of racial inequities, and pledging to shift the office culture away from a focus on convictions and lengthy sentences toward prevention and restorative practices. A key component in delivering on those promises involves attending to the practices and policies that have led to the need for reform. Given the power the prosecutor wields in defining the experience of justice,9 it becomes all the more important to examine and develop better guidance in the exercise of discretion, because it operates as a critical lever for ensuring fairness and racial equity. Of course, there are multiple discretionary points of prosecution: discretion to file, discretion to change or reduce charges, discretion to negotiate pleas, and discretion to make sentencing recommendations. While there is a paucity of empirical research documenting all of the factors that influence prosecutorial decision-­making, race is powerfully in play.10 Given the racial disparities that persist—­and the lifelong challenges that attend adult prosecutions of children—­prosecutors should stop the practice of charging anyone under 21 in the adult criminal justice system. What follows is a set of observations and recommendations for changing the culture and practice of adult prosecution of Black adolescent offenders as a critical step in initiating meaningful criminal justice reform. Disparities in treatment affect all people of color in the justice system,11 but the stark divide between Black and white adolescents helps illustrate the depth of the problem in youth justice. This chapter focuses on that binary distinction.

Allowing Race to Trump Science The legal system, with good reason, tends to treat youth status as a mitigating factor—­even sometimes as a disqualifier. For example, states do not let adolescents drive cars largely because kids perceive and calculate risk differently than do mature adults. Laws bar adolescents from entering into binding contracts because young people have difficulty

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contemplating the meaning of a consequence, particularly regarding long-­term implications. States do not allow adolescents to make major decisions without guidance because kids are impulsive and have a diminished capacity to anticipate harm as an unintended result of their actions. Across all dimensions of a young person’s life, society willingly imposes limitations and regulations in recognition of the child in the adolescent. Indeed, the law generally recognizes that adolescents have yet to develop the perspective, responsibility, and temperance that will enable them to exercise judgment and restraint. So, the law builds in safeguards to protect them. That protective instinct rarely characterizes or guides criminal justice decision-­making. Instead, since the 1980s, the criminal justice system has seized on—­and adhered to—­the fiction that a young person’s criminal conduct transforms him into an adult. By prosecuting the adolescent offender in adult court, states and the federal government are making the normative choice to hold an adolescent fully responsible and to expose him to the panoply of legal and collateral consequences that an adult offender would experience. Studies by the US Department of Justice and the Centers for Disease Control and Prevention (CDC) have raised serious questions about that policy choice. Indeed, the CDC found that “[t]ransferring juveniles to the adult system is counterproductive as a strategy for preventing or reducing violence.”12 Studies comparing outcomes for children prosecuted in juvenile court versus adult court for the same offenses have confirmed the CDC findings. The repercussions for the young person subjected to adult treatment are acute. Lifetime consequences—­ranging from the burden of a conviction to the physical dangers and emotional trauma that accompany adult detention and incarceration—­make the choice to expose adolescents to adult prosecution even more problematic. Despite these effects, 13 states have no minimum age for trying children as adults.13 Children as young as nine have been prosecuted as adults. But children are not miniature adults. Brain research and behavioral research have exploded that myth. Science has confirmed what every parent of a teenager understands: adolescents have specific normative traits that distinguish them from mature adults. Neuroscience research reveals that the regions of an adolescent’s brain governing impulse control and risk avoidance are still forming into the mid-­to late 20s.14 With-

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out those controls in full operation, young people succumb more readily to impulse and experience greater difficulty resisting external influences, such as from peers and unstable environments. Even when adolescents engage in violent behavior and, therefore, seem more mature by virtue of their conduct, their judgment is simply not the same as that of a mature adult. One of the principal proponents of the developmental approach to youthful offending has been the United States Supreme Court. In a trio of decisions over a seven-­year period, the Court mapped an important shift in the justice system’s perception of—­and approach to—­adolescents who engage in even the most serious crimes.15 The Court held unconstitutional the imposition of the death penalty for all juvenile offenders under the age of 18,16 the imposition of life without parole sentences for juvenile offenders convicted of nonhomicide offenses,17 and the mandatory imposition of life without parole terms for juvenile offenders in homicide cases.18 Central to the Court’s reasoning was the recognition that recklessness and impulsivity are the “signature qualities” of youth and that these qualities are “transient.” Even in a case in which a 17-­year-­old, in the company of friends, broke into a woman’s home, kidnapped her, and murdered her by throwing her into a river, the Court found the death penalty inappropriate. Despite the heinous crime, the Court concluded that “juvenile offenders cannot with reliability be classified among the worst offenders.”19 Sitting at the core of the Court’s reasoning is the growing body of neuroscience and behavioral science that offers a clearer understanding of a young person’s culpability and capacity for change. What that scientific evidence teaches—­and the Supreme Court acknowledges—­is that teenagers do not have fully developed personalities;20 their behavior is driven by circumstance and impulse;21 they are less able to consider alternative courses of action and to avoid unduly risky behavior than adults;22 they are vulnerable to the influences of peers;23 and they lack the self-­control that almost every one of them will gain later in life.24 The Court has found that the evidence that the immaturity and vulnerabilities that youth characteristically exhibit should have a direct bearing on the justice system’s assessment of personal culpability and punishment. The Court has made clear that a better understanding of the behavioral and neurological science explaining youthful offending

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should divert decision makers from the most severe sentences and lead them instead toward a youth discount. Unfortunately, the Court’s expectation has proved overly optimistic, at best. The scientific story has been able to carry decision makers a long way toward a deeper understanding of the forces at work in a youthful offender’s engagement in criminal activity. But it is still not far enough. The problem is that the “youth benefit” the Court recommends tends to be experienced by only some young people in the justice system, not all.25 Race is the dividing line. The dark underbelly that we rarely expose or examine is the role that race plays in undermining the developmental, science-­based narrative about youthful offending. Rather than being recognized as a still-­developing child, the young Black person is more often seen as fully formed and adultlike. Equally problematic, the public perceives the Black adolescent as an animal or predator. When the Black teenager exhibits normative adolescent tendencies, he is not considered childlike but mature. He is not impulsive; he is unpredictably volatile. He does not fail to appreciate risks and consequences; he is thoughtless. What the Court outlines as mitigating factors are misperceived as indicators of dangerousness once we overlay race. The idea of the “senselessly violent” teenager then gives cover to the societal choice to withhold the protective impulses that would otherwise define and shape justice options and responses to the criminal conduct of a teenager. Black adolescents are then more easily denied rehabilitative care or diversionary treatment even when they have engaged in the exact same criminal behavior as white adolescents. Who has the power to make that justice decision? Typically, it rests with prosecutors. Fourteen states and the District of Columbia allow prosecutors to direct-­file youth into adult court. In those states, the prosecutor has the sole discretion to decide the forum for adjudicating the young person’s conduct. The criteria for adult treatment vary widely in those states, with some emphasizing offense categories, age of the offender, or the offender’s juvenile history.26 But in applying that criteria, what becomes evident is that where we draw the boundary between adolescence and adulthood depends more on societal norms and perceptions than scientific findings.27 As a result, the determination about who deserves leniency and who does not varies according to who is drawing the line and against whom it is being drawn.28

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In the majority of states, prosecutors do not have the authority to direct-­file charges in adult court. Instead, there are mandatory transfer provisions, where certain crimes are deemed by statute to require adult-­court treatment, and judicial hearings, where the judge makes the individual determination to waive a young offender to adult criminal court. But even if the prosecutor does not have the power to determine the forum, once the young person’s case ends up in criminal court, the prosecutor will exercise discretion about whether and how that case proceeds. Almost all adolescents participate in some form of antisocial conduct, including criminal conduct.29 Self-­report studies show that it is “statistically aberrant” for adolescents to refrain from crime during adolescence.30 But the choice to engage the formal justice mechanisms as well as the decision to charge the adolescent as an adult tend to track racial fault lines in this country. Black youth—­particularly young Black men—­are disproportionately charged, disproportionately prosecuted in adult criminal court, and disproportionately sentenced either to lengthy prison terms or to death.31 When we add a racial dimension to the typically impulsive and antisocial behavior of an adolescent, we tend to view that adolescent’s behavior with less sentimentality.32 Race has the power to thwart the desire to be merciful. For example, a study in 2016 showed that nearly 90 percent of New Jersey children tried as adults were either Black or Latinx even though white children commit the same crimes.33 In Florida, although Blacks make up only 17 percent of the state’s population, two-­thirds of the juveniles transferred to the adult system are Black.34 Because states do not always track transfers to adult court by race, it is difficult to identify a precise number, but where racial data has been available, the evidence points to stark disparities along racial lines. Since the 1980s, the country has witnessed and approved a disturbingly high number of children ushered into the adult criminal justice system, and that prosecutorial choice has had a disproportionate impact on youth of color. Fortunately, some prosecutors have made the explicit choice to address this problem. Recognizing that their decisions matter in a young person of color’s life trajectory, these prosecutors have taken steps to reduce their reliance on the tool that allows them to seek adult charges against children35 or to eliminate such prosecutions entirely.36 As a result, we are beginning to see promising evidence of a downturn in

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the frequency with which prosecutors certify children for adult-­court treatment, at least in some states. Some scholars, as well as some state officials, have called for a complete cessation of adult charging for anyone under 21. California voters made the decision to remove that choice from prosecutors,37 and other states have approved reverse transfer mechanisms, allowing a young person to be placed back in juvenile court if the adult charges do not result in a conviction.38 But so long as prosecutors have the responsibility to exercise discretion in cases involving adolescent offending at any stage of the case, it is important to understand how to make the discretionary choice more responsibly. This means understanding the ways that race influences decisions about who deserves adult treatment and who does not, taking steps to monitor and counteract implicit and explicit biases in negotiating, and developing practices that help prosecutors discern and treat the developing child within the youthful offender. Because despite how old an offender may look or what crime he may have committed, he is still a child.

What’s Bias Got to Do with It? Despite the Supreme Court’s confidence that we have arrived at a “settled understanding that the differentiating characteristics of youth are universal,”39 the experience of children of color in the justice system belies that claim. Their disproportionate treatment as adults shows that racial bias can warp even that which we take to be self-­evident. As we now know, bias need not be explicit, although there appears to be a resurgence in behavior that reflects explicit forms of racism. But we have become increasingly alert to the impact of implicit biases, that is, the associations that we automatically make without conscious thought. Those biases can affect how we perceive and treat individuals and groups. In fact, a long history of psychological research shows that our culture subjects Black men to stereotypes that focus on violence, threat, and crime.40 The problem for the young person of color is that his age does not exclude him from that stereotypical assumption or mitigate its effects. The stereotype that young Black men are threatening and dangerous has become so robust and ingrained “in the collective American unconscious that Black men now capture attention, much like evolved threats

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such as spiders and snakes.”41 The Black person–­as–­criminal stereotype becomes all the more destructive when it combines with three other lenses through which society routinely views and assesses the conduct of young people of color: dehumanization, exaggerated perceptions of dangerousness, and adultification. This triple threat negatively affects the Black teenager, diminishing our impulse to be protective while also intensifying our determination to be punitive. Indeed, the highly charged, vivid images that we associate with Black youth and that we allow to pervade our culture awaken feelings of fear and drive decisions sometimes unconsciously to exert greater control over Black kids. Let’s take each phenomenon in turn. “Dehumanization” is a process that permits the perception that certain individuals and groups fall “outside the boundary in which moral values, rules and considerations of fairness apply”42 so that we are permitted to take action against those targeted individuals without the tug of moral restraint or condemnation. Dehumanization is perhaps most familiar in the context of warfare and ethnic conflict, where combatants objectify an enemy to enable and facilitate the use of violence. History is replete with examples of groups in power deploying this device to justify intergroup violence, such as slavery,43 the Holocaust,44 and routinized violence as part of so-­called ethnic cleansing.45 In subtle but nonetheless destructive ways, dehumanization of Black youth allows decision makers to provide them fewer protections as children. One principal form of dehumanization involves comparisons to animals. Media accounts of criminal conduct quite often deploy this trope: animal imagery to describe the actions or behavioral traits of young people of color. News stories explicitly label young people of color “animals” or, more subtly, brand them as “predators” who engage in “wilding” behavior in an effort to underscore their supposed primitive natures and subhuman status.46 Recently, national leaders have deliberately stoked the flames of racial distrust by tossing out bestial labels with impunity and specifically denying the humanity of marginalized groups,47 creating an environment where racist views can thrive under a veneer of mainstream acceptability. The consequence of dehumanization extends beyond semantic damage and political marginalization.48 In a series of six studies, researchers looked to examine whether the association of Black people with apes has now become implicit and then to test the implications for that association in the criminal justice sys-

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tem.49 The team of researchers found that a mental association between Blacks and apes remains strong among white Americans and that the association specifically applies to Blacks rather than other racial groups. Not only is that association demeaning and specific, it also can alter an individual’s judgment about the use of violence against a Black target.50 Participants in the study who had observed images of apes were more likely to deem justified the beating by police of a Black suspect. Conversely, the ape-­priming did not move participants to condone the beating when the suspect was white. The cultural stereotype of the young Black man as threat also translates into biased perceptions of his physical size and formidability. In a series of seven studies, Professor John Paul Wilson and a team of researchers found that study participants misjudged the size and strength of young Black men, perceiving them as larger and as more fearsome than young white men of comparable size and build.51 In fact, when researchers showed study participants images of 45 white faces and 45 Black faces taken from a college football recruiting website, participants overestimated the heights and weights of the Black football players even though the white players were actually taller and heavier. The researchers asked the study participants to imagine each of the faces, white and Black, as belonging to an unarmed man who was behaving aggressively in an encounter with the police. Participants had to assess whether it was appropriate for the police to use force to subdue the unarmed man. The participants judged the use of force as more appropriate when the suspect was Black. Race cued participants’ acceptance of a more violent reaction and form of restraint because the Black suspects seemed more dangerous. The view that young Black boys and girls are adultlike is an equally potent misperception: adults perceive them as older than their actual chronological age without reference to individual behaviors or observations. There is a generalized expectation that young people of color are less innocent and more mature than white children of the same age. As with other social categories and stereotypes, once that category or group has been defined, we tend to presume homogeneity among all members of the group.52 In a groundbreaking series of empirical studies, Professor Phillip Goff and colleagues tested whether Black children experience fewer protections because they seem less distinct from adults.53 Spe-

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cifically, the studies sought to examine perceptions in the context of the criminal justice system and chose to focus on Black male children because of their overrepresentation in that system. The researchers found that participants afforded Black children the “privilege of innocence” less than children of other races. Perceptions of age and maturity diverged along racial lines beginning at age 10. Participants perceived the innocence of Black children as equal to, or less than, that of non-­Black children in the next oldest cohort: for example, Black children aged 10–­ 13 ­were seen as similar to white children aged 14–­17.54 The researchers then set out to examine the impact of that innocence gap in criminal justice contexts. Participants overestimated the age of Black children suspected of felonies, seeing them as 4.53 years older than they actually were. As important, the older the participant rated the child, the more culpable the child seemed. As a correlate, researchers examined the reactions of police officers drawn from large urban police departments to understand the effect of dehumanization on police officers’ overestimation of the age of Black suspects and on their behavior as police officers. The study revealed that police, despite their experience dealing with young people suspected of crimes, overestimated the age of Black and Latinx children, with an average age error of 4.59 years.55 In other words, participants misperceived 13-­year-­old Black boys as 17-­year-­olds. In the end, Goff and his colleagues concluded that participants perceived Black boys as older than they actually are, prematurely removing them from a developmental category that benefits their white counterparts.56 Society also overlooks the child in Black girls in ways that deprive them of the protections of childhood. When girls of any race engage in aggressive, antisocial conduct, society rarely considers such acts within the bounds of normalcy.57 Instead, we grope for a deeper pathological reason for the behavior, seeking to punish rather than protect.58 But close examination of girls’ offending reveals a different set of cultural and social dimensions than those that one typically finds for boys. Misconduct engaged in by girls tends to be linked to trauma experienced in family or social relationships. In fact, sexual abuse is the primary predictor of girls’ entry into the justice system.59 Society is quick to criminalize girls’ survival responses—­such as running away, acting out, and truancy—­to traumatizing home environments. Arrests for this under-

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standable reaction to danger often initiates girls’ contact with the justice system.60 Upon arrest, girls are more likely than boys to be detained for these sorts of nonviolent status offenses.61 The rate of girls’ entry into the justice system has been skyrocketing since 2000, particularly affecting girls of color.62 Black girls make up 14 percent of the population but 33.2 percent of girls detained and committed in the juvenile justice system.63 The cause of the upsurge is not an escalation in violence64 or engaging in more crimes than their white counterparts.65 What appears to account for the dramatic upturn is more aggressive efforts to enforce nonserious offenses, resulting in a higher number of arrests, coupled with an increase in arrests for family-­based incidents. In a 2009 study of delinquent girls in South Carolina, researchers found that 81 percent reported a history of sexual violence.66 Aggravating these causal factors is the societal tendency to punish the girl who diverges from gender stereotypes or conventional norms: the girl who appears “different” by virtue of aggressive behavior, sexual experience, and/or race will often become the target of our justice intervention. When she challenges modes of behavior that society conventionally associates with girls, the more problematic she appears. And the older she seems. Researchers have set out to understand better the reasons that we treat girls of color differently than white girls. What they uncovered, once again, were troubling effects of adultification. In a study of classroom observations, it became apparent that educators discipline Black girls for assertive behavior that they interpret as loud, overbearing, and disruptive. The same study quoted one teacher who complained that Black girls “think they are adults . . . and they try to act like they should have control sometimes.”67 A 2017 study conducted by the Georgetown Law Center on Poverty and Inequality confirmed that the teacher’s views were more commonly held than many expected. The data collected is simultaneously startling and sobering. Survey respondents perceived that Black girls across all age ranges were more adult than white girls at almost all stages of development. As early as five years old, Black girls were seen as behaving older than their actual age. The study concluded that “adults appear to place distinct views and expectations on Black girls that characterize them as developmentally older than their white peers.”68 Equally troubling, respondents perceived that Black girls needed less nurturing and protection than their white

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peers. They also considered Black girls to be more socially mature than their age might otherwise suggest: Black girls were believed to know more about adult topics and to be more knowledgeable about sex than white girls of the same age. The bottom line is simple: the adultification of Black girls prematurely strips them of the privilege and protections of childhood, which can have dangerous ramifications for them in the justice context.

Resisting a Culture That Incubates and Supports Racial Bias Bias pervades the criminal justice system. At every discretionary stage in the process of a case, criminal justice actors make decisions that will affect both the path of the case and the life of the person charged. Those choices are influenced by personal perceptions, beliefs, and biases that can be explicit or, perhaps more often, are unacknowledged and unnoticed. It is not surprising that racial effects emerge at each point of discretion. Where we once thought that explicit racism had been relegated to the margins, we have begun to witness its unashamed resurgence as national and local politicians let racism off the leash. But the more pressing and pervasive form of bias may be that which occurs with little conscious thought. Our mental processes make automatic associations between concepts that help us sort information and make quick judgments. Those unconscious connections can affect judgments about, and behavior toward, certain social and racial groups.69 Our values and thought processes are profoundly shaped by our culture. In the United States, absorption of racial bias is simply a feature of living in America. In recent years, the concept of implicit bias has gained broad acceptance in the social science community and in mainstream discussions about race. Defined as the “attitudes or stereotypes that affect our understanding, actions and decisions in an unconscious manner,” implicit biases can activate automatically and without any conscious intention.70 Regular exposure to stereotypes and excessive portrayals of particular racial groups as criminals in the media and public discourse can and does foster the formation of implicit racial bias. When groups are so commonly associated with negative traits, there is a tendency to categorize the group with anything negative.71 We begin developing these biases from our earliest cultural introduction to stereotypes,

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and it is that exposure that lays the foundation for our implicit attitudes. Testing reveals that each of us—­including children—­is subject to hidden biases. In fact, just being aware of stereotypes, such as those associating Blacks with criminality,72 or thinking about crime is sufficient to activate implicit biases.73 Just as troubling, social scientists confirm that even individuals who self-­identify as “racially egalitarian” and actively work to behave without prejudice can engage in biased behavior automatically. So much of what occurs in the criminal justice system enables and triggers these implicit racial biases. Constant exposure to individuals of color charged with crime tends to skew our perspective and lead to dangerous generalizations. A case involving drugs becomes just another drug case. A case alleging gang involvement devolves into yet another gang case. Those generalizations come weighted with stereotypical assumptions about the offender that we do not examine or interrogate. It takes work to overcome those assumptions and to question the reason that so many young Black people appear in our justice system. But when we do the work, we find the data confirming that Black children are not committing more crimes than their white counterparts. Take, for example, drug distribution and usage. Black and white Americans sell and use drugs at similar rates, but Black Americans are 2.7 times more likely to face arrest for drug-­related offenses.74 These high numbers are more a function of where we police and how we police. Higher numbers of kids of color are arrested and charged because we target marginalized communities and label them as high-­crime areas. But actors in the justice system tend not to have sufficient familiarity with the data or to focus on it to overcome the reflexive confirmation bias. The skewed sample of Black kids accused of crimes has a cumulative effect. It becomes harder to distinguish individual offenders and to humanize them. Instead, we see the young person charged as a personification of his charge: a robber, a murderer, a gangbanger, which triggers our biases. Their crimes, coupled with racial cues such as skin color, age, gender, and accent, also help to engage these biases and make it that much more difficult to retain a perspective that this person charged is actually a child experiencing some form of developmental immaturity.75 The reflexive practice of seeing kids of color as more savage, more threatening, and less amenable to rehabilitation will dampen our desire to treat them as children. Resisting the impulse to dehumanize, adultify,

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and exaggerate the danger that Black youth pose means policing ourselves and our systems to change the culture of bias. As a starting point, prosecutors’ offices need to monitor and stop the casual dehumanization that occurs within them. Quite often, we write off racist comments as gallows humor. But the joking degradation of individuals charged does not make it any less potent or destructive. And tolerating it as being something said in jest sets a tone and climate that makes it more likely that these biases will activate and produce racialized results. Some offices allow their prosecutors to refer to people charged as “critters” and to refer to arraignments as “cattle calls.”76 Even tolerating these references in working with police can desensitize the prosecutor and lead her to see the person charged as less human and less childlike. Similarly, when individuals in offices throw around phrases such as “senseless violence,” they are too easily buying into the stereotype that “some people are just violent.” The job of the prosecutor is to make sense of the violence—­to understand what factors might have been in play—­ and to question assumptions as a matter of routine practice. Empirical data shows that implicit bias can cause key decision makers in the justice system to ignore the mitigating features of developmental immaturity when the offender is a young person of color. Sandra Graham and Brian Lowery designed two studies to detect the impact of race on perceptions of culpability, punishment, and expectations regarding recidivism.77 Researchers hypothesized that the stereotypical assumption that Black youth are “violent, aggressive, dangerous, and possess adult-­like criminal intent” would supersede the shared cultural belief in youthful vulnerability and diminished culpability. The study further sought to explore whether unconscious racial stereotypes, once activated, would influence conscious processes such as inferences about the causes of crime. The researchers engaged police officers in one experiment and probation officers in the other.78 The pools of participants were ethnically and gender diverse.79 The researchers hypothesized that decision makers who perceived the causes of the youth’s crime to be internal, volitional, and stable would be more likely to infer responsibility and culpability and to expect future criminal behavior from the individual, thus leading to a desire for harsher punishment. Researchers did not explicitly provide information about the young person’s race, but in some instances the researchers primed participants

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subconsciously before the vignettes with words commonly associated with African Americans. The data revealed that police officers who were primed with the words associated with Blacks “judged the hypothetical offenders to be less immature (i.e. more adult-­like),” blameworthy and deserving of harsher punishments than did the police officers in the neutral prime condition.80 Similarly, probation officers who had been race-­primed assessed the offender to be “less immature and more violent, . . . more culpable, more likely to reoffend, and more deserving of punishment.”81 The study supported the view that unconscious stereotyping influenced judgments of actual decision makers in the justice system. So, what can progressive prosecutors do to resist the conditions that incubate and perpetuate bias? They must understand the conditions under which biases activate and then take steps to counteract their influence. Studies have shown the power of race-­switching: prosecutors can check their reactions to the Black accused by imagining a white child in the same predicament and exercising discretion with that image in mind. Individualization is a key component in exorcizing discretion and making fair calls that will ensure a just result.

Proximity as a Pathway to Justice—­the Lives of Children We Know So Little About “You cannot be an effective problem-­solver from a distance. There are details and nuances to problems that you will miss unless you are close enough to observe those details.”82 Ministering justice involves making a human connection and using the options available to fashion appropriate recommendations. The prosecutor’s personal connection should extend beyond the victim of a crime; it must stretch to the accused as well.83 Proximity—­getting closer to the person and the problem—­ actually helps us find our way to justice. But proximity does not come reflexively or easily to lawyers. To start, the very concept of proximity flies in the face of conventional legal training. Law schools teach that emotional distance and professional detachment will somehow enable lawyers to be more effective. But practice reveals that presumed wisdom to be flawed. Law school training may be attempting to convey the message that one’s objectivity

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can be impaired if the lawyer is too close to the issue or the individuals involved in the dispute. But the exact opposite is also true: maintaining professional distance can affect a lawyer’s judgment by dangerously divorcing her appraisal and reasoning from empathy. In doing the business of the law, lawyers can miss the human component because they are focused on cases, not lives. In the repetitive processing work of the criminal justice system, lawyers can miss the individual in the offender because making generalizations takes less time and effort. In the sea of adults facing charges, lawyers can miss the child in the young offender as they narrow their focus to the specific details of the charge and ignore the context. It is critical for the progressive prosecutor to expand inputs into her decision-­making process, because constraining her vision can lead to injustice. To find justice in the context of adolescent offending, she must find ways to learn the conditions that bring the Black child into the justice system so that she can recognize the mitigating effects of his background and environment. It is perhaps axiomatic to assert that prosecutors make life-­altering decisions on a daily basis. It is the nature of the job. But too often prosecutors know precious little about the person who has been charged and whose life will be changed by even the seemingly small choices the prosecutor will make. Part of the problem is that we lack easy mechanisms to get to know the individuals accused of crime. As a result, we too quickly dismiss the lives of the young people who enter the criminal justice system as, at best, unremarkable or, at worst, as defined by the worst thing they have ever done. Both approaches lead us away from a just outcome. A good defense lawyer can help a prosecutor to see the individual accused in a more accurate light, but defenders are not immune to the biases and time pressures that may prevent them from seeing their young clients accurately and advocating effectively.84 And it should not be the sole responsibility of the advocate on behalf of the accused to learn and consider the individualized factors that distinguish the young person accused. It is also the responsibility of the progressive prosecutor—­in exercising the role of minister of justice—­to get to know the neighborhoods, conditions, and options available to be able to dispense justice fairly. In most jurisdictions, the overwhelming majority of cases are concentrated in a few neighborhoods. This occurs, in part, because we deploy enforcement resources in neighborhoods that we deem “high crime.”

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Crime certainly occurs in affluent communities, although perhaps less visibly. But we have made the policy choice to get the biggest bang for the enforcement buck, choosing to devote police resources to the type of crime that is most visible and easiest to detect. In so doing, the communities we choose to target are typically the most impoverished neighborhoods, and because they are underresourced, they often lack sufficient mechanisms to support members of the community. They tend to lack mental health resources, good schools, and viable after-­school opportunities. In effectuating the minister of justice role that prosecutors possess, they must move beyond the narrow advocacy confines that expect them to identify wrongdoers and assign individual blame. Doing justice involves more. “The opposite of poverty is justice, and when we do justice, we deconstruct the conditions that give rise to poverty.”85 Really? Most individual prosecutors would likely push back against that position, contending that “it’s not our job to deconstruct poverty.” But prosecutors are in the business of doing justice, which means understanding the conditions of poverty and the elements that contribute to a young person’s entry into the justice system. It also means recognizing that young people have a developmental resilience and capacity to change even when they have committed the most heinous crimes. At a minimum, prosecutors need to appreciate that the lives of adolescents of color differ considerably from the lives of almost everyone in the criminal justice system with whom they interact in terms of class, race, ethnicity, and, of course, age. Without a deeper understanding of the challenges these young people of color face—­navigating the myriad obstacles that exist in their neighborhoods, schools, and families—­how can progressive prosecutors expect to make decisions that might lead to change? Or identify interventions that might enhance the safety of the community? Or take actions that might lead to real justice? Let’s take a moment to sketch the outlines of the common sets of experiences that young people of color undergo. Adolescents of color habitually experience being monitored and followed. From their earliest years, children of color know well the impact of being suspected of wrongdoing based on appearance. Children of color are feared more than any other adolescents, regardless of economic background.86 Black children are victimized at a greater rate,87 policed differently,88 and customarily treated more harshly in the justice system.89 Society misses the

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effects on the identity of young people who are forced to grow up realizing that they are being suspected and hunted. But were we to make the effort to discover what it means for young people of color to be caught up in cycles of trauma, we might better understand their responses and coping behaviors in the midst of difficult, and often unimaginable, conditions. At the same time, we might begin to notice and reward the hope and developmental resilience that young people of color routinely exhibit in the face of those circumstances. Marginalized communities offer, at best, a concoction of contradictory experiences. Neighborhoods are simultaneously loving and violent. Communities offer chances for success and erect real roadblocks to advancement. Safe spaces for children can transform in an instant from playground to battleground. The relentless pattern of volatility and uncertainty that young people of color encounter in these neighborhoods leads us to speak colloquially of children having to “grow up quickly” because they see and experience events from which society would ordinarily shield even adults. In acknowledging the impact of negative environments on an adolescent’s risky conduct, the Supreme Court has recognized that young people typically do not reside in these neighborhoods by choice. Indeed, their legal minority (i.e., the fact they are not yet adults) prevents them from exercising any meaningful control over their environment, as they lack the authority to remove themselves from difficult, even horrific living conditions. Thus, the Court has urged that young offenders’ environments not be held against them. Given the coping skills that children of color develop and display to survive in underresourced community environments, young people of color may seem more mature, at best, and may appear less like innocent children, at worst. Trauma disrupts the lives of far too many Black adolescents, but society rarely labels their experience as such. The general public certainly recognizes that trauma and victimization are matters that affect public health. But victimization of Black adolescents seldom ignites moral outrage90 or prompts public health action despite the fact that their victimization rates dwarf those for White children. Consider a few examples. Homicide represents the third leading cause of death among White adolescents age 15–­19, but it ranks first among Black adolescents.91 Black adolescents living in urban areas routinely witness violent events.92

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Longitudinal data gathered over the course of eleven years (1996–­2007) reveals that Black men were the most likely to be robbed every year and were the most likely to be the victim of violent encounters during six of the 11 years.93 One out of 10 children under the age of six living in a major American city reports witnessing a shooting or stabbing.94 Eighty-­three percent of youth living in urban centers report experiencing one or more traumatic events.95 More recently, the COVID-­19 pandemic has disproportionately affected communities of color. Children of color have lost family members, struggled to cope in families that are financially strapped, and have begun to exhibit signs of trauma.96 These statistics depict a multidimensional public health crisis in which young people of color are struggling to survive. Consequently, children of color—­including those accused of crime—­experience a layering of traumas. But even the prosecutor, who may be alert to the fact that impoverished environments can cause damage, may underestimate the nature and extent of the trauma. For example, when both the accused and the victim of a crime come from the same neighborhood, it is difficult not to draw comparisons. “If the victim managed not to engage in criminal conduct and he is from that neighborhood, why should I give the accused a break?” But the comparison is too simple, and in the end it is flawed. First, victims, witnesses, and the accused are far from fixed categories in marginalized communities. One can be a victim one day and the accused the next. So, the temporal distinctions may be less informative than one imagines. Second, the accused may be experiencing unique traumas associated with that environment or reacting differently to the same levels of trauma. Short-­term distress is an almost universal response,97 but longer-­term reactions to trauma can be quite diverse. Unresolved trauma in adolescents can result in personality changes, cognitive dysfunction, and disturbances in interpersonal functioning and mental health.98 Reactions to trauma can include irritability and aggression, hypervigilance, and distress, all of which are appropriate reactions. Persistence of these experiences can even progress to post-­traumatic stress disorder (PTSD), which can affect behavior and developmental processes. PTSD can interfere with a young person’s ability to focus, adhere to a regular schedule, and respond to authority figures in ways

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that we would otherwise deem socially appropriate.99 Adolescents exposed to trauma can often experience apathy, sadness, and depression. Victims of trauma can become irritable, hostile, and angry. They can exhibit grief, shame, and self-­blame. When adolescents experience traumatic events, they can begin to develop feelings of fear, vulnerability, helplessness, and fragility. Emotional numbing, a general sense of detachment, and a loss of interest in previously enjoyed activities can be indicators of PTSD.100 The problem is that adults rarely see the bad behavior of children of color as symptomatic of trauma. One telling indicator of that misperception is the data showing the number of schools in urban areas that have prioritized security over counseling. A 2016 study revealed that in four out of the 10 largest public school districts in the country—­New York City, Chicago, Miami-­Dade, and Houston—­school security officers outnumber school counselors.101 When adults perceive children of color as choosing to misbehave, they look for ways to punish that choice. They completely bypass the options that might involve less drastic and ultimately more helpful interventions. This misperception leads to disparate treatment in schools and can usher young people of color into the justice system at disproportionate rates due to the so-­called school-­to-­prison pipeline. Countless studies have documented that the school-­to-­prison pipeline steers students of color out of school and into the justice system disproportionately. Black students made up only 16 percent of the student population in the 2011–­2012 school year. But they represented 32 percent of the students who received an in-­school suspension, 33 percent of the students who received out-­of-­school suspension, 42 percent of the students who received more than one out-­of-­school suspension, and 34 percent of the students who were expelled.102 They represented 27 percent of students referred by the school to law enforcement and 31 percent of students subject to a school-­based arrest.103 The situation presents particularly acute problems for Black boys. Indeed, as they move from childhood into adolescence, they often start to experience discriminatory discipline. Parents of Black boys refer to this shared experience as the “4th grade syndrome.”104 Black boys accounted for nearly two-­thirds of the three million suspensions and more than half of the expulsions in US public schools in 2006.105 Even more disturbing, unlike any other

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demographic group in the United States, by the age of 15 almost 2 percent of the Black male population cannot be accounted for—­they are not in school or in the criminal justice system. They are likely alive but officially disconnected.106 Once again, the effects on Black girls paint an even more alarming picture. Black girls face more frequent and more severe school discipline than white girls. Black girls represented 15.6 percent of enrollment in kindergarten through 12th grade in the 2013–­2014 academic year, while white girls made up 50.1 percent. But when examining the rates of suspensions for girls in kindergarten to 12th grade, Black girls make up 36.6 percent of the in-­school suspensions versus 32.9 percent of white girls. Black girls were more likely than white girls to experience a single suspension (41.6 percent versus 28.4 percent). But the greatest disparity arose when looking at repeated suspensions: Black girls experienced 52 percent of the multiple suspensions, while white girls only accounted for 22.7 percent of multiple suspensions. In the end, Black children were more likely to experience exclusionary disciplinary outcomes. But perhaps the behavior of children of color warrants the differential treatment? It does not. Young people of color do not engage in bad or delinquent behavior more than their white peers.107 The US Department of Education has concluded that schools discipline Black students “more harshly and more frequently because of their race than similarly situated white students.”108 Discretion and discrimination travel together, and school officials’ exercise of discretion too often veers toward the removal of students of color. Suspensions of Black students tend to occur after subjective violations of school rules, such as for disrespect, defiance, and noisiness.109 On the contrary, office discipline referrals involving white students result more often for objectively observable behaviors—­ smoking, fighting, vandalism, and obscenity.110 Similarly, at least one study of school discipline of girls shows that Black girls are two times more likely to be suspended for minor violations (dress code violations, inappropriate cell phone use, loitering), 2.5 times more likely to face suspension for disobedience, and three times more likely than white peers to face suspension for “disruptive” behavior.111 Even in the less subjective categories, such as fighting and bullying, Black girls are three times more likely than similarly involved white girls to be suspended.112 More

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troubling still, research reveals that suspensions are higher for girls with darker skin tones.113 Teachers will more likely perceive the behavior of Black children as threatening rather than as an expected reaction to trauma. So, instead of diagnosing the issue properly, school officials label students of color as troublemakers, insubordinate, and behavioral problems. Once a designation attaches, it colors and drives official expectations and reactions. Schools will more often look for ways to remove the “problem” rather than retain the young person. The process of designation and removal often begins at alarmingly early stages in the young person of color’s development. Black children in prekindergarten face suspension and expulsion twice as often as Latino and white youngsters and more than five times as often as Asian American children.114 Minor disruptions and misbehaviors are not addressed as developmental delays but instead are deemed the sort of misconduct that requires ousting. Of course, if school officials do not feel compelled to keep a four-­year-­old in school, suspending or expelling a teenager should prove far easier. And it has.115 The bottom line is simple: school-­based mental health services have proven effective in addressing the trauma and manifestations of trauma in adolescents. By locating services within an academic environment, schools can reduce the stigma associated with mental health treatment. The problem is that, in our rush to rid schools of children perceived as troublemakers, we are missing and misdiagnosing something that schools could handle. The places that society provides for children to make mistakes, to misbehave, and to learn to control their impulses have more often than not become unsafe for children of color. Their neighborhoods and their schools add trauma to their lives. In effect, government actors police Black children more aggressively, underscoring the reality that, at every turn, their mistakes will be deemed crimes, reactions to their misbehavior will be severe, and they will be treated as though they were adults. Knowing these effects should help the progressive prosecutor to assess better the behavior and background of a young person accused of crime. If there is a spotty school record or history of suspensions or expulsions, the fault may not necessarily lie with the accused. Indeed, that history may serve as a cue to look deeper into environmental factors and misdiagnosed trauma that may be in play.

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Focusing the Developmental Lens in Assessing the Behavior of Young Black Offenders The key to exercising appropriate discretion in cases involving young Black people charged with crimes is to use a racially aware, developmental filter both to assess behavior and to elect among options for the disposition of the case. That developmental lens is perhaps most important in serious cases. Let’s face it: it is far easier, and certainly less controversial, to apply developmental concepts when the conduct charged involves a low level, nonviolent offense. But, as the United States Supreme Court has acknowledged, and as brain science confirms, the precise developmental factors that distinguish a young offender from an adult decision maker are present even when the person engages in a violent offense.116 Of course, prosecutors’ offices do not operate in a political vacuum. Their decisions to release or exercise leniency are subject to intense scrutiny after the fact. Elected DAs worry with good reason about the political hit they will suffer if an offender engages in an even more serious felony after receiving lenient treatment. It should go without saying that no one wants an injury or death to occur. But the prosecutor needs to weigh that putative risk against the very real ongoing harm to young people whose lives will likely be damaged by a decision to punish them more than is developmentally appropriate. To that end, the prosecutor interested in enhancing fairness should consider three principal shifts in perspective with respect to the treatment of youthful offenders. The prosecutor should (1) maintain skepticism regarding “confessions”; (2) rethink accomplice liability, conspiracy, and individual culpability; and (3) reexamine felony murder when adolescents are involved. The first shift involves the assessment of confession evidence. Confessions are generally seen as powerful indicators of guilt. After all, why would an innocent person risk prison or worse by falsely incriminating himself? Yet, despite the strong pull of conventional wisdom that we can trust the veracity of admissions freely and intelligently given, evidence reveals a heightened risk of false confessions by young offenders. Children and adolescents are two to three times more likely than adults to confess falsely.117 In a study of 340 exonerations that have taken place since 1989, researchers found that people under the age of 18 were three

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times as likely to make a false confession.118 And 42 percent of juvenile exonerees had confessed to a crime they had not committed, in contrast to only 13 percent of wrongfully convicted adults. In another study of 125 proven false confessions, 63 percent of those who made the false admissions were under the age of 25 and 35 percent were under 18.119 A laboratory study revealed that a majority of young participants complied with a request to sign a false confession without a single word of protest.120 The problem of false confessions is all the more troubling when the accused is a young teenager. The youngest of adolescents are even more likely to respond to the pressures of interrogations offering false information even against another person.121 There are many reasons for this,122 chief among them being the special vulnerabilities that distinguish young people at this developmental stage. As both brain science and behavioral studies show, young people are more open to suggestion, more vulnerable to pressure, and more compliant than adults. In the context of interrogations at police stations or in school settings, those vulnerabilities have led to disturbingly high percentages of young people confessing to crimes they never committed. The pressure to close a case that is particularly violent or has garnered considerable media attention can push investigators to focus on a specific individual and to look to elicit an admission. The problem is that kids are easily steamrolled into confessing, in part, because standard interrogation techniques are designed to induce adults to confess. Those methods work even more effectively on young people. Police can exploit a child’s emotions and susceptibility to pressure and suggestion. By promising the young person a short-­term reward—­“you’ll get out if you just say you did this”—­police effectively play into the developmental vulnerabilities that characterize young people. That false promise—­which is legally permissible—­can fundamentally change a young person’s life. Data may give a sense of the breadth of the problem. But it only begins to give the broad outlines of a troubling narrative of what we permit to occur in the name of justice when children of color are implicated. We know the famous cases, such as the so-­called Central Park Five case, in which five Black teenagers “confessed” to the rape of a White woman jogging in New York City’s Central Park. They were later exonerated when DNA established that they did not commit the crime. But in less-­ famous cases, prosecutors have relied on what later proved to be a false

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confession to buttress otherwise questionable evidence in obtaining a conviction. David McCallum’s case offers one such example. At the age of 16, McCallum and his friend, Willie Stuckey, confessed to the abduction and murder of 20-­year-­old Nathan Blenner. Soon after, both teenagers recanted their confessions, to no avail. Based largely on their admissions, both young men were convicted of kidnapping and homicide. McCallum admits in retrospect that as an adult he never would have believed the police officer’s promise that he could go home if he confessed. But, similar to most kids, he naively believed he could trust this adult authority figure, and in the end he confessed to crimes he never committed. The conviction integrity unit of the Brooklyn District Attorney’s Office later reviewed their cases, found their confessions to be rife with inconsistencies, and recommended dismissal. The DA also noted that DNA tests and fingerprint evidence matched other people, not the two young men charged. Both McCallum and Stuckey’s cases were dismissed in court, but only after Mr. McCallum had served 29 years in prison for a crime he had not committed and Mr. Stuckey had died in prison. Why does this happen? Police interrogation techniques are designed to elicit statements. Most officers have been trained to use the so-­called Reid Technique, which employs a series of psychological tactics, to exact confessions. The technique is “a guilt-­presumptive, accusatory, manipulative process—­and it packs a powerful psychological punch.”123 The common interrogation techniques are designed to pressure seasoned adult offenders. When used against young people, these methods can push them to speak, even falsely. Young people may respond to these interrogation tactics by deciding that “confessing” is the only way out of a difficult situation—­even if that confession is false. Interestingly, the marketers of this technique agree that young people are at higher risk for false confessions than adults and express the caution that interrogators should exercise “extreme caution and care” when interrogating them.124 So, prosecutors need to maintain a healthy level of skepticism about statements that occur during interrogations by police and school officials even when the accused appears to have made the statement knowingly and voluntarily. This may mean not offering the statement as evidence in the case and not using it as leverage in plea-­bargaining. The Supreme Court has cautioned against the special dangers of false

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confessions made by young people.125 State courts have observed that “the confession operates as a kind of evidentiary bombshell which shatters the defense.”126 Confessions are uniquely potent in their ability to influence and bias decisions at every successive stage of the case. At the initial stages, prosecutors will likely charge the offender who has admitted guilt with the highest number and types of offenses and will recommend the most restrictive bail conditions. Knowing that the statement strengthens the prosecution’s case, a prosecutor will feel less pressure to negotiate for a plea to a reduced charge. But the progressive prosecutor has committed to fairness and equity in this process, which in the case of a young offender means recognizing that youth is a risk factor for false confessions. The second perspective shift that the prosecutor must make involves charging decisions when young people commit crimes in concert with others. The criminal law has developed mechanisms to establish wide vicarious liability to strike against the special dangers incident to group activity. Two doctrines facilitate group prosecution: accomplice liability, and conspiracy. For complicity, states and the federal government have made the procedural choice to hold an accomplice as liable as the principal who may have actually committed the acts involved in the offense, so long as it can be shown that there is some community of purpose and some minimal action in assistance (instigating, emboldening, or encouraging, for example). Similarly, the conspiracy doctrine allows prosecutors to punish group behavior and to create a greater deterrent by charging a separate crime of conspiracy in addition to the crimes actually committed or attempted. To charge conspiracy, and then to impute to all coconspirators the crimes flowing from it, means that the prosecutor must establish some agreement to further a criminal objective (generally a small overt act in furtherance of the objective) and a purpose to commit the crime. Whenever an offense involves two or more people committing a crime, prosecutors have the discretion to charge each individual as an accomplice with the full crime and possibly with conspiracy to commit the crime, no matter how limited the individual’s involvement. The problem is that most adolescent crime is group crime. Risk-­ taking tends to be a group phenomenon.127 Adolescents spend more time with peers than adults, and those friendships operate simultaneously as sources of positive experiences and as factors leading to anti-

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social behavior. A study of 306 individuals found that exposure to peers doubled the amount of risk-­taking by mid-­adolescents (a mean age of 14) and increased it by 50 percent among college undergraduates (mean age of 19).128 Researchers in brain science have made use of functional magnetic resonance imagining (fMRI), a technique to measure brain activity,129 to map variations in the activation of various areas of the brain. One study using fMRI has revealed that adolescents engage in riskier behaviors than their adult counterparts when there is mere awareness that peers are watching.130 Interaction with peers seems to be a basic need that becomes quite acute in adolescence—­adolescent brains react to peer exclusion in ways similar to reactions to physical threats and threats to food supply.131 The brain’s socioemotional network, which processes social and emotional information, is quite active as adolescents navigate the influence of their peers.132 In fact, heightened risk-­ taking in adolescence is the result of competition between two different brain systems: the cognitive-­control system that is responsible for executive functions such as planning, self-­regulation, and thinking ahead, as well as the incentive-­processing system that biases decision-­making based on potential reward and punishment.133 In the presence of peers, the teenager’s socio-­emotional system activates, diminishing the regulatory effectiveness of the cognitive control network and substantially increasing risk-­taking.134 Society—­perhaps with good reason—­tends to perceive group conduct generally as more threatening. The perception of danger becomes magnified when young people of color act in groups. In fact, we almost reflexively affix the explosive label “gang activity” to describe their group conduct. That label is not only weighted with pejorative baggage; it also corrodes perceptions about conduct that would otherwise appear normal. The “gang” label suggests that group engagement is both abnormal and symptomatic of a deeper pathology. Then, the gang affiliation drives justice responses, facilitating and encouraging harsher treatment. To be clear, some gang activity may be more violent and organized and therefore may require specialized interventions that aim to help kids extricate themselves from that affiliation. But more often than not, we paint gang affiliation with too broad a brush such that collective behavior, even when loosely structured, is perceived and treated as the functional equivalent of organized crime.

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In those instances when a young person may be involved with a gang, it is critical for the prosecutor to be familiar with the reasons that such an association might occur. Young people can engage in gang activities as a consequence of their friendships with gang members, even when they themselves are not an official member of the gang. Often, gang activity operates as a pull for a young person, particularly when he experiences high levels of social isolation in community, in family, and in school.135 A leading expert on gang membership suggests two principal emotional reasons that young people become involved with gangs: The first involves wanting to part of a social network already populated with close friends and relatives, and the second is that a group can provide protection and security in an otherwise hostile environment.136 A gang often operates as a surrogate family. Joining a gang may reflect a desire to belong and to feel protected. Researchers acknowledge that this emotional need to have a place where one fits in is a powerful pull for gang involvement. Interestingly, justice practitioners tend to ignore that an adolescent’s need for group engagement can be influenced by a desire for safety and a need for self-­protection. In fact, the principal reason cited for gang involvement is protection. The results of a five-­year longitudinal study of adolescents in six cities found that 28–­57 percent of self-­identified gang youths said they joined for protection.137 Across gender lines, fear of victimization often leads young people to join gangs.138 Evidence suggests that girls join gangs often to avoid victimization by family members, acquaintances, and others in the community. But the common denominator for gang involvement tends to be a desire to thwart further victimization.139 The third paradigm shift involves the charging of felony murder when adolescents are involved. This doctrine, adopted in almost every state, allows an individual to be charged with felony murder if someone dies in the course of an attempted commission or completion of a felony. To put it differently, the individual does not have to kill to be deemed a murderer and punished as such. What drives the doctrine is the assumption that a person who takes part in the commission of the underlying felony appreciates the risk that someone may be killed in the course of the felony. The prosecution’s burden is to prove that the individual intended to commit the underlying felony. The state does not need to prove a separate intent to kill. In fact, the doctrine permits the state to

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expand liability to participants in a felony even if they did not kill, did not intend to kill, or did not foresee that death might occur. In some jurisdictions, felony murder liability occurs even if the killing is accidental. Indeed, given the peculiarities of sentencing, the doctrine can sometimes result in strange justice, whereby the actual killer receives a lesser sentence than an accomplice.140 Given the insights gained through developmental research about the limits of an adolescent’s perception of risk and ability to calculate future risks, the felony murder doctrine seems uniquely flawed, and progressive prosecutors should constrain its use. As a legal doctrine, felony murder has come under enormous attack, but it has demonstrated remarkable resiliency. The principal arguments in favor of the doctrine have been tethered to deterrence or retributive theories of punishment. The deterrence rationale suggests that the state, by punishing the offender for felony murder, is taking steps to deter the dangerous commission of the underlying felony or to encourage the safer commission of the felony. Retributive rationales tend to be harm-­based, focusing on the notion of just desserts. Essentially, retributivists argue that the doctrine reflects the societal judgment that an intentionally committed robbery, for example, that causes the death of a human being is qualitatively more serious than the identical robbery that does not. But critics of the rule reject these rationales. They question a rule that moves so far away from the principles on which our system of justice relies: holding someone culpable for his own acts and mental state. In operation, the doctrine is overly broad and does not allow for individualized assessment of guilt. Because the doctrine is unmoored to individual culpability, questions of fairness abound. With respect to retribution arguments, critics assert that it is illogical to transfer intent from the commission of an unarmed burglary, for example, and allow that to substitute for the malice aforethought of murder. Similarly, in countering deterrence arguments, critics maintain that the legislature can build into the penalty for the felony itself those greater sanctions that should accompany the dangerous commission of the felony rather than depending on the sheer random chance that a person will accidentally cause a death. In examining the doctrine’s application to adolescent offenders, its inherent illogic and unfairness become amplified. But let’s consider the ra-

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tionales for felony murder through the lens of adolescent development. Deterrence rationales bank on the fact that individuals will weigh the risks of engaging in wrongful conduct and will exercise judgment that the punishment outweighs the perceived benefit of engaging in a crime. But that assumption flies in the face of what developmental science tells us about adolescent decision-­making. Adolescents tend to lack perspective to engage in this analysis as an adult might. By virtue of their age and their stage of development, adolescents as a group tend to discount future consequences and assign greater weight to short-­term rewards. This is in part due to the problem that adolescents fail to comprehend consequences fully as a result of immaturities in their brain circuitry. These still-­developing processes can “lead to misevaluation of the value or predicted consequences associated with a given stimulus or action thereby biasing decision-­making.”141 Teenagers cannot fully apprehend potential negative consequences to engage in the cost-­benefit analysis that deterrence rationales expect. Similarly, retributive theorists’ reliance on “just desserts” arguments miss the defining developmental features of adolescent offenders. In fact, broad-­brush judgments about young people deserving to pay for an offense that even inadvertently ended in someone’s death miss the critical questions about the offender and the offense that will shift with age and maturity. Retributive theorists seek to hold an individual liable for felony murder because society should hold the person liable for his choices. But adolescent impulsivity diminishes the teenager’s ability to exercise the sort of mature judgment that help makes sense of the doctrine’s applicability. Unlike adults, adolescents exhibit biologically based impulsivity, underdeveloped mechanisms to exercise self-­control, and increased difficulty diverging from peer expectations. Even for the adolescent who actually kills in the course of a felony, there are genuine questions about the extent to which the act flows from a fully formed decision as we typically expect. Split-­second decision-­making in otherwise stressful circumstances can have a distorting effect on an adolescent’s judgment and calculation of risk. Evidence shows that adolescent decision-­making and behavior are highly affected by biological influences particular to this stage of development and bear little resemblance to the mature exercise of judgment on which retributive theorists premise punishment rationales. As of 2004, 2,225 juveniles were serving state

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or federal life-­without-­parole sentences.142 Between one-­quarter to one-­ half of those sentences are for convictions of felony murder. Prosecutors need to employ a developmental filter when assessing whether the accomplice to a felony murder or the person who actually killed really exercised the type of judgment that warrants the charge and the treatment. Although the felony murder doctrine does not require an individualized assessment of the intentionality of the killing, a developmentally sensitive analysis would impose that obligation on the prosecutor who is looking to promote fairness. In making the charging decision, the prosecutor should focus on what the young person actually did. What were the relative ages of the participants that might lead one to recognize that the behavior was less intentional and more impulsive or even accidental? Adding a racial filter would mean assessing whether the impulse to be punitive might be driven by racial cues. If the felony murder involved multiple participants, the progressive prosecutor will need to remember that kids normally tend to engage in conduct in groups at this development stage. A slower deliberative process about the circumstances, the context, and the individual’s intent and actual participation, rather than simply following what the doctrine permits, can lead to a fairer assessment of the charges that should flow from the conduct.

Conclusion Prosecutors need to rethink what it means to secure public safety, to wield their power more fairly, and to use the tools at their disposal to transform the experience of justice for all kids—­including kids of color. While much of what has been discussed in this chapter aims to help individual prosecutors reimagine and reframe their roles, that task can be enabled or inhibited by the culture of the office and the tone that is set by leaders at every level within the office. It is not enough for the elected DA to make progressive promises publicly and to issue policy directives internally. What makes the promises more likely to be embraced and fulfilled is ensuring that the office engages in practices that reinforce the intent to engage in reform. How might that manifest in the prosecution of adolescent offenders? First, there should be a presumption against charging any adolescent in the adult criminal justice system. Adult prosecution is not only ineffec-

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tive; it is actually traumatic and abusive to the young person. Decades of transferring kids into the adult legal system have not resulted in reduced crimes and safer communities. But that policy choice has caused unimaginable harm. Prosecutors should instead refer cases to juvenile court and should seek age-­appropriate, therapeutic interventions to address and redirect a young person’s misconduct. Second, leaders in the office must make a conscious effort to change the office culture surrounding youth justice. The office, as a starting place, should develop a system to track outcomes in cases involving adolescent offenders. You cannot change what you do not understand. So, developing a database that would document the charge, the plea offer, the negotiated agreement, and the sentence—­as well as tracking the age, race, gender, and zip code of the offender—­would provide a platform for reform. The plan would be to analyze this data monthly to surface existing or emerging patterns across the office. Further analysis of this data would help to identify whether there was any racial skewing in an individual prosecutor’s exercise of discretion. If patterns are detected, the office will need to take a closer look at what might be driving those numbers to understand where intervention and training might be necessary. Third, a progressive office would need to adjust the nature of its training to teach prosecutors how to use a racially alert, developmental lens when assessing the conduct of youthful offenders. A critical aspect would involve training in developmental science and implicit bias to give prosecutors a deeper understanding of the issues that uniquely affect kids and kids of color and to help them identify tools they might use to counter the triggering of biases. In addition to enhancing the in-­office training of prosecutors, progressive leadership should also insist on pushing prosecutors out of the confines of the office and the courthouse to actually engage with the communities in which the bulk of arrests occur. This means more than attending the occasional neighborhood watch meeting. As important, getting out into the community should also not be viewed pejoratively as a “trip to the zoo.” Leadership should make clear the expectation that prosecutors should make time to visit schools in the area, grocery stores, and shops. They should visit jails and prisons before they send people into those institutions. The more proximate these prosecutors

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get, the more likely they will be alert to many of the issues that may lead someone to become engaged in the justice system. Fourth, the office training should involve frequent and ongoing updates on the success of community-­based interventions such as mentoring and peer counseling even in serious cases and the corresponding failure of popular punitive programs such as boot camps. Without more information, it is hard for an individual prosecutor to take the leap of faith that a particular program will leave the community safer or lead to a more productive outcome. Often that information is left to the defense lawyer to provide in the individual cases. But a prosecutor’s office interested in a progressive approach might partner with community organizations to fashion diversion programs. In fact, taking a more expansive approach to diversion seems appropriate. But to do that, prosecutors will need to reframe their approach to acknowledge that diversion is for minors, not just for minor offenses. Finally, the office leadership must set expectations and incentivize behavior consistent with a reform outlook. Both formal and informal mechanisms for recognition and reward need to track this priority. This means that promotions should no longer be based on the number of convictions obtained. Instead, a progressive office might want to base recognition on the ability to be creative in fashioning a response to criminal conduct. This will mean recalibrating what constitutes a “win” within the office. Celebrating diversion, and the utilization of programmatic options, should be the reasons for officewide recognition. In a similar vein, monitoring the use of dehumanizing language even in jest should occur. The change in culture involves patrolling boundaries—­ indicating what the office values and what it will no longer tolerate. So, holding the office accountable for breaches of that cultural norm will also go a long way toward signaling that there needs to be behavioral change that compliments the reform agenda. Notes

1 Petition for Writ of Certiorari at 4, Bostic v. Pash, No. 17–­912 (U.S. Dec. 20, 2017), 2017 WL 6606886, at *4. 2 Brief for Former Judges et al. as Amici Curiae Supporting Petitioner, Bostic v. Pash, No. 17–­912 (U.S. Jan. 25, 2018), 2018 WL 620080. 3 Letter to the Clerk, Bostic v. Pash, No. 17–­912 (U.S. Feb. 11, 2018).

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4 Lydia Wheeler, Supreme Court Refuses to Hear Appeal of Teen Sentenced to 241 Years in Prison, The Hill, Apr. 23, 2018. 5 Editorial, Bobby Bostic’s Prison Term for His Teenage Crimes Deserve Reconsideration, St. Louis Post-­D ispatch, January 3, 2018. 6 Carroll Bogert, How the Media Created a “Superpredator” Myth That Harmed a Generation of Black Youth, NBC News (Nov. 20, 2020), www.nbcnews.com. 7 Jennifer S. Mann, Life Sentence Reform for Juveniles May Pass by St. Louis Robber Serving 241 Years, St. Louis Post-­D ispatch (Aug. 10, 2014), www.stltoday. com. 8 Evelyn Baker, Opinion, I Sentenced a Teen to Die in Prison. I Regret It., Washington Post (Feb. 13, 2018), www.washingtonpost.com. 9 See generally, Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007). 10 James C. McKinley, Jr., Study Finds Racial Disparity in Criminal Prosecutions, N.Y. Times (July 8, 2014), www.nytimes.com. 11 Vera Institute of Justice, Race and Prosecution in Manhattan (July 2014), www.vera.org (one of the first studies to document differences among Black, White, Latinx, and Asian people). 12 Centers for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System (2007), www.cdc.gov. 13 Thirteen States Have No Minimum Age for Adult Prosecution of Children, Equal Justice Initiative (Sep. 19, 2016), https://eji.org. 14 B.J. Casey, Rebecca M. Jones, and Todd A. Hare, The Adolescent Brain, 1124 Ann. N.Y. Acad. Sci. 111 (2008); see Kim Taylor-­Thompson, Minority Rule: Redefining the Age of Criminality, 20 N.Y.U. Rev. L. & Soc. Change 101 (2014). 15 Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551, 578 (2005). 16 Roper, 543 U.S. at 578. 17 Graham, 560 U.S. at 81. 18 Miller, 132 S. Ct. at 2475. 19 Roper, 543 U.S. at 569. 20 See Elizabeth S. Scott and Laurence Steinberg, Rethinking Juvenile Justice 52 (2008) (noting the “coherent integration of [identity] does not occur until late adolescence or early adulthood”). 21 See Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann. Rev. Clinical Psychol. 1531, 1538 (2007). 22 See Elizabeth Cauffman and Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18 Behav. Sci. & L., 741, 756–­5 7 (2000) (observing that “maturity of judgment” is correlated to “antisocial decision-­making,” but that responsibility, perspective, and temperance are more predictive than age alone).

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23 See Dustin Albert, Jason Chein, and Laurence Steinberg, The Teenage Brain: Peer Influences on Adolescent Decision-­Making, 22 Current Directions Psychol. Sci. 114 (2013). 24 See Laurence Steinberg, Dustin Albert, Elizabeth Cauffman, Marie Banich, Sandra Graham, and Jennifer Woolard, Age Differences in Sensation Seeking and Impulsivity as Indexed by Behavior and Self-­Report: Evidence for a Dual Systems Model, 44 Developmental Psychol. 164, 1774–­7 6 (2008). 25 Josh Rover, Juvenile Life Without Parole: An Overview, Sentencing Project (Apr. 13, 2021), www.sentencingproject.org. 26 Patrick Griffin, Patricia Torbet and Linda Szymanski, Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Trying Juveniles as Adults in Criminal Court: An Analysis of State Transfer Provisions (Dec. 1998), https://ojjdp.ojp. gov. 27 See Alexandra O. Cohen, Richard J. Bonnie, Kim Taylor-­Thompson, and B. J. Casey, When Does a Juvenile Become an Adult? Implications for Law and Policy, 88 Temple L. Rev. 769, 773–­74 (2016). 28 Id. 29 See Terri Moffitt, Adolescent-­Limited and Life-­Course Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychol. Rev. 674 (1993). 30 Id. at 685–­686. 31 See National Council on Crime & Delinquency, And Justice for Some: Differential Treatment of Youth of Color in the Justice System (Jan. 2007). 32 See Taylor-­Thompson, supra note 14, at 122. 33 Sarah Gonzalez, Nearly 90% of New Jersey Children Tried as Adults Since 2011 Were Black or Latino, The Guardian (Oct. 11, 2016), www.theguardian.com. 34 Christopher Huffaker, In Many States, Black Juveniles End Up in Adult Court in High Numbers, Miami Herald (June 22, 2017), www.miamiherald.com. 35 See e.g., Andrew Pantazi, Prosecutors Aren’t Seeking Adult Charges Against Kids Nearly as Often in Florida or Jacksonville, Fla. Times-­U nion, Jan. 2, 2018 (discussing the success of Melissa Nelson, state attorney in Jacksonville, Florida, in reducing the number of children sent to adult court by 79 percent since she was elected in 2016 on a reform platform). 36 Jeremy Loudenback, Los Angeles District Attorney Elect George Gascón Vows to Stop Prosecuting Juveniles as Adults, The Imprint (Nov. 9, 2020), https://imprintnews.org. 37 Proposition 57 passed in California in 2016 removes the direct file decision from prosecutors and requires a judicial hearing to determine whether a kid who is eligible for transfer to adult court will in fact be charged as an adult. 38 Zoe Schein, Indiana Bill Creates Path Out for Youth, National Juvenile Justice Network (Apr. 25, 2016), www.njjn.org. 39 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403–­04 (2011).

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40 Black men are more likely to be remembered as carrying a weapon: G. W. Alport and L. J Postman, The Psychology of Rumor (1947); to activate concepts related to crime, Jennifer Eberhardt, Phillip A. Goff, V. J. Purdie and P.J. Davies, Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol. 876 (2004); and to be seen as aggressive in ambiguous contexts, K. Hugenberg and Galen V. Bodenhausen, Facing Prejudice: Implicit Prejudice and the Perception of Facial Threat, 14 Psychol. Sci. 640 (2003). 41 Sophie Trawalter, Andrew R. Todd, Abigail A. Baird, and Jennifer A. Richeson, Attending to Threat: Race-­Based Patterns of Selective Attention, 44 J. Experimental Soc. Psychol. 1322 (2008). 42 Susan Opotow, Moral Exclusion & Injustice: An Introduction, 46 J. Soc. Issues 1 (1990). 43 Michael Johnson, Fredrick Douglass and the Dehumanization of Slavery, Great Works MW 5:40 (Mar. 19, 2013), https://blogs.baruch.cuny.edu. 44 Gustav Jahoda, Images of Savages: Ancient Roots of Modern Prejudice in Western Culture (1999) (discussing the depiction of Jews as “vermin” or “rodents”). 45 Beverly Crawford Ames, The Dehumanization of Immigrants and the Rise of the Extreme Right, American Institute for Contemporary German Studies (Sept. 11, 2019), www.aicgs.org. 46 David Livingstone Smith, Less Than Human: Why We Demean, Enslave, and Exterminate Others (2011). 47 Gregory Korte and Alan Gomez, Trump Ramps Up Rhetoric on Undocumented Immigrants: “These Aren’t People. These Are Animals,” USA Today (May 17, 2018), www.usatoday.com. 48 Kim Taylor-­Thompson, Opinion, Why America Is Still Living with the Damage Done by the “Superpredator” Lie, L.A. Times (Nov. 27, 2020), www.latimes.com. 49 Id. 50 Phillip A. Goff, Jennifer L. Eberhardt, Melissa J. Williams, and Matthew C. Jackson, Not Yet Human: Implicit Knowledge, Historical Dehumanization and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 302 (2008). 51 Racial Bias in Perception, Montclair State University, www.montclair. edu. 52 Alexis McGill and Rachel D. Godsil, Perception Institute, Transforming Perception: Black Men and B oys (Mar. 2013), http:// perception.org. 53 Phillip Atiba Goff, Matthew Christian Jackson, Carmen Marie Culotta, Brooke Allison Lewis Di Leone and Natalie Ann DiTomasso, The Essence of Innocence: Consequences of Dehumanizing Black Children, 106 J. Personality & Soc. Psychol. 526 (2014); Rebecca Epstein, Jamilia J. Blake and Thalia González, Georgetown Law Center on Poverty and Inequality, Girlhood Interrupted: The Erasure of Black Girls’ Childhood (2017), https://genderjusticeandopportunity.georgetown.edu; Edward

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54 55 56 57 58 59

60 61 62

63

64

65

66

67 68 69 70 71 72 73

Morris and Brea L. Perry, Girls Behaving Badly? Race, Gender & Subjective Evaluation in the Discipline of African American Girls, 90 Soc. Educ. 127 (2017). Goff et al., supra note 53, at 529. Id. at 535. Id. at 540. Kim Taylor-­Thompson, Girl Talk—­Examining Racial and Gender Lines in Juvenile Justice, 6 Nev. L. J. 1137 (2006). Id. Malika Saada Saar, Rebecca Epstein, Lindsay Rosenthal, and Yasmin Vafa, Georgetown Law Center on Poverty and Inequality, The Sexual Abuse to Prison Pipeline: The Girls’ Story (2015), www.law.georgetown.edu. Taylor-­Thompson, supra note 57, at 1139. See Saar et al., supra note 59, at 7. Francine T. Sherman, Richard A. Mendel, and Angela Irvine, Annie E. Casey Foundation, Making Detention Reform Work for Girls: A Guide to Juvenile Detention Reform 5–­6 (Apr. 2013). Easy Access to the Census of Juveniles in Residential Placement: 1997–­2017, U.S. Department of Justice, National Center for Juvenile Justice, www.ojjdp.gov. National Council on Crime and Delinquency, Center for Girls & Women, Getting the Facts Straight About Girls in the Juvenile Justice System 7 (2009). Margaret Zahn et al., U.S. Department of Justice, Girls Study Group: Understanding Girls’ Delinquency, Violence by Teenage Girls: Trends and Context 6–­7 (May 2008). Dana D. Dehart, The Center for Child & Family Studies, Poly-­ Victimization among Girls in the Juvenile Justice System: Manifestations and Associations to Delinquency 12 (Oct. 2009). Edward W. Morris, “Ladies” or “Loudies”? Perceptions & Experiences of Black Girls in Classrooms, 38 Youth & Soc’y 490, 511 (2007). Epstein et al., supra note 53, at 8. L. Song Richardson and Phillip Goff, Implicit Racial Bias in Public Defender Triage, 122 Yale L.J. 2629 (2013). Mahzarin R. Banaji and Anthony G. Greenwald, Blindspot: Hidden Biases of Good People 190 (2016). Richardson and Goff, supra note 69, at 2630. See, e.g., Eberhardt et al., supra note 40. See Joshua Correll, Bernadette Park, Charles M. Judd, and Bernd Wittenbrink, The Police Officer’s Dilemma: Using Ethnicity to Distinguish Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314, 1323 (2002); Eberhardt et al., supra note 40, at 883.

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74 The Hamilton Project, Rates of Drug Use and Sales, by Race; Rates of Drug Related Criminal Justice Measures, by Race (Oct. 21, 2016), www.hamiltonproject.org. 75 Kristin Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, 98 Cornell L. Rev. 383 (2013). 76 The Public i, First Class Justice vs. “the Cattle Call,” The Public i (Sept. 2015), http://publici.ucimc.org. 77 Sandra Graham and Brian S. Lowery, Priming Unconscious Racial Stereotypes about Adolescent Offenders, 28 L. & Hum. Behav. 483 (2004). 78 Id. at 487. 79 Id. at 488. 80 Id. at 493. 81 Id. at 496. 82 Leandra Fernandez, Empathy and Social Justice: The Power of Proximity in Improvement Science, Carnegie Foundation (Apr. 21, 2016) www.carnegiefoundation.org (quoting Bryan Stevenson’s keynote address at 2016 Carnegie Summit on Improvement in Education). 83 Andrea Estes and Shirley Murphy, Stopping Injustice or Putting the Public at Risk? Suffolk DA Rachael Rollins’s Tactics Spur Pushback, B oston Globe, (Mar. 2, 2017) www.bostonglobe.com (quoting Suffolk DA Rollins stating “I represent not just the victim, but the defendant and the community”). 84 See generally, L. Song Richardson and Phillip A. Goff, Implicit Bias in Public Defender Triage, 122 Yale L.J. 2627 (2013). 85 Matthew Heimer, “Do Some Uncomfortable and Inconvenient Things”: A Civil Rights Champion’s Call to Action for CEOs, Fortune (June 26, 2018) https://fortune.com (quoting Bryan Stevenson). 86 See Stacey Patton, Opinion, In America, Black Children Don’t Get to Be Children, Washington Post (Nov. 26, 2014), www.washingtonpost.com (summarizing the history of demonization of Black children). 87 See Sonja C. Tonnesen, Comment, Hit It and Quit It: Responses to Black Girls’ Victimization in School, 28 Berkeley J. Gender L. & Just. 1, 2 (2013) (“African American girls and young women are uniquely susceptible to gendered violence and its effects.”). 88 See Philip Bump, Study: Cops Tend to See Black Kids as Less Innocent Than White Kids, The Atlantic (Mar. 10, 2014), www.theatlantic.com. 89 See Jon Hurwitz and Mark Peffley, And Justice for Some: Race, Crime, and Punishment in the U.S. Criminal Justice System, 43 Diversity & Democratic Pol. 457 (June 2010). 90 With the exception of conservative political efforts to insist that so-­called Black-­ on-­Black crime is the real problem. This has been a thinly veiled racist attempt to distract the nation from police violence against Black victims by claiming that intraracial violence is the real problem.

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91 Arialdi M. Miniño, Mortality among Teenagers Aged 12–­19, United States, 1999–­ 2006, 37 U.S. Department of Health and Human Services (May 2010); Five Leading Causes of Death by Race/Ethnicity, New York State Department of Health, www.nyskwic.org. 92 See Brian E. Perron, Heather J. Gotham, and Dong Cho, Victimization among African-­American Adolescents in Substance Abuse Treatment, 40 J. Psychoactive Drugs 67, 68 (Mar. 2008); David Seal, Annie Nguyen, and Kirsten Beyer, Youth Exposure to Violence in an Urban Setting, 2014 Urb. Stud. Res. 1 (Nov. 2014). 93 Vera Institute of Justice, Expanding the Reach of Victim Services (Aug. 2016), www.vera.org. 94 David Finkelhor, Heather Turner, Richard Ormrod, Sherry Hamby, and Kristen Kracke, Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Children’s Exposure to Violence: A Comprehensive National Study (Oct. 2019), www.ojp.gov. 95 Tony Favro, Urban America Challenged by On-­Going Trauma among the Poor, City Mayors Soc’y (Sept. 2019), www.citymayors.com. 96 Dan Levin, How the Pandemic Has Been Devastating for Children from Low-­ Income Families, N.Y. Times (Jan. 2, 2021), www.nytimes.com. 97 APA Presidential Task Force on Posttraumatic Stress Disorder and Trauma in Children and Adolescents, Children and Trauma: Update for Mental Health Professionals (2008), www. apa.org. 98 Kathleen Nader, Understanding and Assessing Trauma in Children and Adolescents; Psychosocial Stress Series 9 (2008). 99 Vera Institute of Justice, Young Men of Color and the Other Side of Harm: Addressing Disparities in our Responses to Violence 7 (2014); American Psychological Association, Trauma and Stressor-­Related Disorders: Posttraumatic Stress Disorder, in Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (2013). 100 Bruce A. Tyler and Alicia Lankton, Racism-­Induced Trauma, in Encyclopedia of Trauma: An Interdisciplinary Guide 523 (Charles R. Figley, ed., 2012). 101 Matt Barnum, Exclusive—­Data Shows 3 of the 5 Biggest School Districts Hire More Security Officers Than Counselors, The 74 (Mar. 27, 2016), www.the74million.org. 102 CDC, supra note 12. 103 Id. 104 McGill and Godsil, supra note 52, at 10. 105 Id. 106 Id. 107 See, e.g., Tony Fabelo, Michael D. Thompson, and Martha Plotkin, Justice Ctr. & Pub. Policy Research Inst., Breaking

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Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice Involvement 37, 45 (2011) https://knowledgecenter.csg.org (finding that Texas African American ninth graders were 31 percent more likely to receive discretionary school discipline action); Michael Roque and Raymond Paternoster, Understanding the Antecedents of the “School-­to-­Jail” Link: The Relationship Between Race and School Discipline, 101 J. Crim. L. & Criminology 633, 663 (2011) (finding that schools were more likely to discipline African American elementary students than any other students even after controlling for classroom and school factors and student behavior). 108 U.S. Department of Justice and U.S. Department of Education, Joint “Dear Colleague” Letter (Jan. 8, 2014), www2.ed.gov. 109 McGill and Godsil, supra note 52, at 10. 110 Id. 111 Epstein et al., supra note 53; Morris and Perry, supra note 53. 112 Epstein et al., supra note 53. 113 Id. 114 Walter S. Gilliam, Pre-­K indergarteners Left Behind: Expulsion Rates in State Prekindergarten Systems (2005). 115 Between 1974 and 2012, the number of out-­of-­school suspensions more than doubled, increasing from 1.7 million to 3.45 million. U.S. Department of Education, Civil Rights Data Collection, Data Snapshot: School Discipline 2 (2014), www2.ed.gov. 116 Seema Gajwani and Max G. Lesser, The Hard Truths of Progressive Prosecution and a Path to Realizing the Movement’s Promise, 64 N.Y.L. Sch. L. Rev. 69 (2019). 117 Megan Crane, Laura Nirider, and Steven A. Drizin, American Bar Association, The Truth About False Confessions 12 (2016), https://olis.leg.state.or.us. 118 Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, and Nicholas Montgomery, Exonerations in the United States, 1989 Through 2003, 92 J. Crim. L. & Criminology 523, 523–­53 (2005). 119 Steven A. Drizin and Richard A. Leo, The Problem of False Confessions in the Post-­ DNA World, 82 N.C. L. Rev. 891, 945 (2004). 120 Crane et al., supra note 118, at 12. 121 Joshua A. Tepfer, Laura H. Nirider, and Lynda Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904–­905 (2010). 122 Richard A. Leo, False Confessions: Causes, Consequences & Implications, 37 J. Am. Acad. Psychiatry. & L. 332 (2009). 123 Crane et al., supra note 118, at 12. 124 Critics Corner, John E. Reid & Associates, Inc. (Feb. 21, 2018), https://reid.com. 125 J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). 126 People v. Cahill, 853 P.2d 1037 (Cal. 1993).

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127 Franklin E. Zimring, Penal Proportionality for the Young Offender: Notes on Immaturity, Capacity, and Diminished Responsibility, in Youth on Trial: A Developmental Perspective on Juvenile Justice 271, 281 (Thomas Grisso and Robert G. Schwartz, eds. 2000) (“No matter the crime, if a teenager is the offender, he is usually not committing the offense alone.”); Jason Chein, Dustin Albert, Lia O’Brien, Kaitlin Uckert, and Laurence Steinberg, Peers Increase Adolescent Risk Taking by Enhancing Activity in the Brain’s Reward Circuitry, 14 Developmental Sci. F1 (2011) (noting that one of the hallmarks of adolescent risk taking is that it is more likely than that of adults to occur in the presence of peers). 128 Margo Gardner and Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference, and Risky Decision Making in Adolescence and Adulthood, 41 Developmental Psychol. 625, 626–­34 (2005). 129 “MRI measures the response of atoms in different tissues when they are pulsed with radio waves that are under the influence of magnetic fields thousands of times the strength of the Earth’s. Each type of tissue responds differently, emitting characteristic signals from the nuclei of its cells. The signals are fed into a computer, the position of those atoms is recorded, and a composite picture of the body area being examined is generated and studied in depth.” Florence Antoine, Cooperative Group Evaluating Diagnostic Imaging Techniques, 81 J. Nat’l Cancer Inst. 1347, 1348 (1989); see also Deborah Yurgelun-­Todd, Emotional and Cognitive Changes During Adolescence, 17 Current Opinion Neurobiology 251–­5 2 (2007) (discussing that “structural MRI and functional MRI (fMRI) have become important modalities for research on brain development as they have been able to provide a more detailed picture of how the brain changes. The application of these methods to the study of children and adolescents provides an extraordinary opportunity to advance our understanding of neurological changes and functional abilities associated with brain maturation”). 130 Chein et al., supra note 129, at F7 (adolescents showed greater activation in regions of the brain associated with reward processing when they were informed that their peers were watching them). 131 Shannon J. Peake, Thompas J. Dishion, Elizabeth A. Stormshak, William E. Moore, and Jennifer H. Pfeifer, Risk-­Taking & Social Exclusion in Adolescence: Neural Mechanisms Underlying Peer Influences on Decision-­Making 82 NeuroImage 23 (Nov. 2013). 132 Chein et al., supra note 129. 133 Id. 134 Id. 135 The Advancement Project, Citywide Gang Activity Reduction Strategy: Phase III Report 22 (2006). 136 Terence P. Thornberry, Martin D. Krohn, Alan J. Lizotte, Carolyn A. Smith, and Kimberly Tobin, Gangs and Delinquency in Developmental Perspective 81 (2003).

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137 Dana Peterson, Terrance J. Taylor, and Finn-­Aage Ebensen, Gang Membership and Violent Victimization, 21 Just. Q. 793, 809 (2004); see also Chris Melde, Terrance J. Taylor. and Finn-­Aage Ebensen, “I Got Your Back”: An Examination of the Protective Function of Gang Membership in Adolescence, 47 Criminology 565 (2009). 138 Felix M. Padilla, The Gang as an American Enterprise (1992). 139 See Melde et al., supra note 129. 140 Samantha Melamed, An Accomplice Will Die in Prison While the Killer Goes Free, Philadelphia Inquirer, www2.philly.com. 141 Charles Geier and Beatriz Luna, The Maturation of Incentive Processing and Cognitive Control, 93 Pharmacology Biochemistry& Behav. 212, 213 (2009). 142 Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States (2005), www. hrw.org.

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6

Prosecutors’ Offices as Data-­Driven Organizations Improving Effectiveness and Fairness Don Stemen

The COVID-­19 pandemic upended the criminal justice system and exposed how unprepared the criminal justice system was to address major crises. Court closures due to the pandemic brought many local systems to a near standstill for several months. While virtual hearings sought to keep the courts moving, the case backlogs in many jurisdictions threatened to become insurmountable in the short term. Emergency jail releases intended to stem the spread of COVID-­19 among detainees and jail staff successfully reduced jail populations in several communities through the spring; but over the summer, jail populations in many places increased nearly to their prepandemic levels. And these issues compounded the personal toll of the pandemic on the law enforcement, jail, and court personnel who struggled to balance the risk of exposure with the need to continue patrolling streets, maintaining safe and secure detention facilities, and processing criminal cases. In the midst of the pandemic, the tragic deaths of George Floyd and Breonna Taylor and the shooting of Jacob Blake also increased the urgency of calls for systemic change. Protests for racial justice across the United States have required criminal justice system leaders to acknowledge and address their roles in failing to respond adequately to police violence in Black and Brown communities. Demands to shift law enforcement dollars toward investments in community well-­being have pressured elected officials to reexamine the structure and function not only of police departments but also of local social service provision. Advocates renewed demands that the criminal justice system address and remedy in a meaningful way the persistent racial disproportionalities in arrests, convictions, and prison sentences that continue to disadvantage 213

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Black and Brown communities. And in the wake of the violent confrontations between police and protesters and the criminal justice system’s responses to arrests during the protests, these demands took on new significance. Leaders had to confront the visual evidence of deteriorated community–­police relations and the disparity in responses to police and citizen behavior. While all criminal justice system actors have been called upon to respond, prosecutors are increasingly at the center of demands for change. Prosecutors are expected to hold police departments accountable by prosecuting officers accused of misconduct and by declining to prosecute low-­level, enforcement-­driven offenses, including those that stem from recent protests. Prosecutors are being asked to use their discretion to reduce mass incarceration and to address racial disparities by diverting more cases, combatting racial disparities in arrests, and to consider the impact of their decisions on communities of color. And given the broad discretion afforded to them, prosecutors are increasingly called on to increase trust in the criminal justice system by being transparent in what they do to ensure that people are not treated differently because of their race or ethnicity. Overall, prosecutors need to examine the impact of the totality of their decisions, the long-­term trends in prosecutorial outcomes, and the impact of those outcomes. But prosecutors generally are charged with making decisions based on the facts and merits of each case. Rarely do they look beyond the individual facts to examine the broader context of their cases and the impact of decisions across all of their cases. Understanding this broader impact is critical to developing solutions that build healthy, safe communities; it is also critical to developing plans that begin to address the implications of recent changes in the criminal justice system due to COVID-­19 and to respond to calls for racial justice. Data is essential to that process. For decades, actors in the criminal justice system have collected, analyzed, and used data. Local, state, and federal law enforcement agencies regularly collect data on crimes reported to the police and analyze data on crime trends to deploy resources, to develop strategies for addressing crime, and to adjust responses to crime.1 Local courts, court administrative offices, and sentencing commissions increasingly gather data on court caseloads and case outcomes, employing data to assess court performance across a variety of metrics2 and to examine trends in sen-

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tencing practices.3 And corrections officials routinely collect data on individuals admitted to and released from jail and prison,4 analyzing data to create prison population projections,5 to examine recidivism rates,6 and to evaluate the impact of correctional programs.7 Data collected by law enforcement, courts, and corrections agencies are often forwarded to state or national agencies, aggregated or combined to look at regional or national trends, disseminated through government reports, and made available for analyses by academics, policy makers, and the media.8 Indeed, the public may now expect to have ready access to information about crime, criminal case processing, and prison populations. For a long time, prosecutors behaved differently. Prosecutors were late to adopt electronic case management systems, with many offices—­ even large offices—­relying on paper files to track cases.9 As a result, data existed largely in paper form, and opportunities to analyze data were limited. Rarely did prosecutors use data to examine trends in cases filed or disposed, to guide decision-­making, or to assess performance.10 Prosecutors’ offices generally did not send data to state or national agencies; it was not aggregated to look at regional or national trends; it was not disseminated through government reports; and it was rarely made available for analyses by academics, policy makers, and the media.11 The black box of prosecution, unlike in law enforcement, the courts, and corrections, was rarely opened to public scrutiny. But expectations have shifted. Prosecutors can no longer be different. Prosecutors increasingly are expected to collect data, to employ data to guide their decisions, and to use data to communicate about the performance of their offices to the public. Advocates and professional groups are stepping up calls on elected prosecutors to adopt policies and practices that increase transparency—­calls that include greater communication and engagement with the community about decisions and case outcomes.12 Many newly elected prosecutors have campaigned on platforms of increasing prosecutorial accountability and transparency—­ platforms built around the collection, use, and dissemination of data.13 Others are calling for state laws requiring prosecutors to collect and publish data on their decisions.14 As a result, the public may increasingly expect prosecutors to provide the same level of detail about the prosecution stage as police, courts, and corrections provide about other stages of the criminal justice system.

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In addition to calls for transparency, elected prosecutors and those focused on reforming the prosecutorial process also realize that improving prosecutorial performance and decision-­making is impossible without data.15 Data tells prosecutors what problems are the biggest threats to community well-­being and can point toward solutions to tackle those problems. Data can identify the nature and extent of racial and ethnic disparities in case outcomes and can shape reforms to correct such disparities. Data can measure the overall impact of prosecutors’ work and determine policies or practices that need to be changed. In the face of a pandemic such as the COVID-­19 outbreak, or any other traumatic shock to the system, data can help prosecutors anticipate the effects of changes in the system and develop strategies to respond. In the end, prosecutors’ offices are expected to become data-­driven organizations, following the movement in other private-­and public-­sector organizations.16 This chapter provides an overview of why prosecutors should collect and use data, what obstacles exist to doing so, and how several prosecutors’ offices are currently using data—­a brief look at how prosecutors’ offices increasingly evolve into data-­driven organizations and the challenges they face in doing so. This is not necessarily a road map for collecting, analyzing, and using data. Rather, it is an assessment of how data is changing the field of prosecution as well as a description of the opportunities available to expand the use of data to further guide policy and practice.

Why Prosecutors Should Collect, Analyze, and Use Data In an opinion piece on the need for better prosecutorial data collection and analysis, John Chisholm and Christian Gossett, two elected prosecutors in Wisconsin, said: “Trying to do our jobs without data is needlessly difficult at best, catastrophic at worst.”17 They insisted that prosecutors need “the kind of rigorous and comprehensive data collection and analyses that can make intelligent changes possible”—­changes that can ensure a more “efficient and fair” criminal justice system.18 Recognizing that other public institutions—­such as education and health care—­routinely rely on data to assess performance and to improve effectiveness, Chisholm and Gossett contend that prosecutors must be equally open and transparent with the collection, analysis, and use of

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data in order to meet their ethical obligation “to do justice” for the communities they serve—­to ensure that their decisions are fair and effective, that the public understands prosecutorial decisions, and that the outcomes they achieve are improving public safety. What Chisholm and Gossett advocate is for prosecutors’ offices to join the company of other “data-­driven organizations”—­to use data and analytics to ensure transparency and accountability and to bring about culture change through new ways of measuring performance.19

Data Enhances Transparency and Accountability Much of the push toward the collection and analysis of prosecution data is about ensuring transparency in the prosecution of cases and accountability for prosecutorial outcomes. When he first developed The Justice Wire,20 the Philadelphia District Attorney’s Office’s online media center, District Attorney Larry Krasner described it as “a first step toward providing greater transparency and accountability to the public. . . . This is what we at the [district attorney’s office] and our partners in the community and in the system need to make the right decisions.”21 This implies not only informing the public about whether the district attorney is a good consumer of public safety dollars but also making the public aware of the impact of prosecutorial decisions. A large part of that transparency and accountability revolves around being able to assess whether the decisions of the prosecutor’s office are fair and equitable. Although prosecutors are likely aware of the disproportionate representation of people of color in the criminal justice system, documenting the extent and nature of that disproportionality is a necessary first step toward seeking to remedy it. Providing data on the race, ethnicity, gender, and age of defendants referred for prosecution, charged with offenses, convicted of crimes, and sentenced to prison begins to provide a clearer picture of the level of racial and ethnic disproportionality in the criminal justice system. A second step involves examining racial and ethnic disparities, which are differences not in numbers but in outcomes. Central to this is a recognition of the discretionary power that prosecutors wield in shaping the outcomes of criminal cases, including, among other things, the decision to file or drop a case, to amend the severity and number of charges, and to dispose of

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criminal cases through plea-­bargaining. Prosecutors must be aware of how exercising that discretion may result in unintended consequences, including racial and ethnic disparities. Using data to evaluate how screening decisions, charging decisions, and plea offer decisions vary by the race, ethnicity, gender, and age of defendants begins to provide an assessment of the nature and extent of racial and ethnic disparity in the criminal justice system. Historically, prosecutors were either reluctant or unable to examine the overall impacts of their decisions, including the levels of disproportionality or disparity in case outcomes. However, this has started to change. In 2005, for example, the Prosecution and Racial Justice Program at the Vera Institute of Justice undertook partnerships with prosecutors’ offices in Milwaukee, Charlotte, and New York City to examine and reduce unwarranted racial and ethnic disparities in prosecutorial outcomes. These offices opened up their case management data to examination by external researchers, who assessed, after controlling for other defendant and case level factors, whether race was affecting case outcomes. Milwaukee County District Attorney John Chisholm has made reducing racial and ethnic disparities a priority in his office since being elected in 2007. As Chisholm notes: “I recognized early on that before we could devise strategies to address disparities, we needed to use data to examine our own decision making and to determine whether and where racially disparate outcomes were occurring.”22 But examining outcomes is just a first step to developing and implementing changes to address disparities if and when they exist. Accountability comes when prosecutors use data to effect changes in policies and practices and they allow the public to assess whether those changes result in different outcomes. As Chisholm has noted, “[P]rosecutors have to be problem-­solvers. They have an obligation to work with the community to help solve problems.”23 In this sense, an important part of transparency and accountability involves prosecutors taking what they learn from such self-­examination and creating meaningful partnerships with constituents to produce policies and practices that better serve the communities directly impacted by the criminal justice system. Increasingly, other prosecutors’ offices are embracing the challenge of examining racial and ethnic disparities inside their offices; examples include prosecutors in Cook County, Tampa,

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and Jacksonville who engaged in a first-­time examination of racial and ethnic disparities in case outcomes in their offices. These efforts indicate that providing prosecutors with an evidence-­ based analysis of racial and ethnic fairness in their offices is key to achieving more equitable results in case outcomes. Indeed, as calls for racial justice demand, prosecutors are expected to understand and address disparities that exist in prosecutorial decisions and outcomes. The fair and just treatment of racial and ethnic minorities at all stages of the criminal justice system is of significant importance to communities of color, to practitioners, and to advocates alike. Thus, prosecutors can take an important step toward increasing transparency and accountability by seeking to understand the connections between offices’ policies and practices and racial and ethnic disproportionality and disparity in the system. Many prosecutors share the belief in the need for greater transparency and accountability.24 However, a study by the Urban Institute found that just 24 percent of offices publish analyses and make them available to the public.25 Awareness of the importance of transparency is not enough unless it is accompanied by general communication with the public. Experts and advocates are beginning to insist on the enactment of state laws requiring prosecutors to release data and/or analyses publicly. Professor Ronald Wright, an expert on prosecution, advocates for laws requiring prosecutors to disclose policies and performance data related to declinations, pleas to initial charges, acquittal rates, and disparity in case outcomes.26 Connecticut enacted such a law, requiring local prosecutors’ offices to collect and report case-­level data on arrests, arraignments, continuances, diversion, dispositions, plea agreements, and sanctions by race, ethnicity, sex, and age.27 The ACLU has encouraged the passage of similar laws in all states.28 As these external pushes for greater transparency increase, prosecutors’ offices may want to follow the lead of other data-­driven organizations and become more transparent on their own by engaging with constituents through data.

Data Facilitates Organizational Change and Performance Measurement Being a data-­driven organization also can mean using data and analytics to transform organizations—­a mechanism to refine the mission of

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an organization and to drive organizational and cultural change. Justice 2020, Eric Gonzalez’s template for changing the direction and culture of the Kings County District Attorney’s Office, makes clear that data is important to achieving several objectives, including defining the goals of the office that move beyond a focus on punitive responses to crime and directing office-­and individual-­level performance to match goals aligned with alternatives to “traditional” prosecution.29 Efforts such as Fair and Just Prosecution and the Vera Institute of Justice’s Reshaping Prosecution Project seek to work with prosecutors’ offices to bring about organizational and cultural changes through the use of data, helping offices to bring a greater focus on reducing mass incarceration, addressing racial disparity, and improving community well-­being.30 In all of these efforts, data can be used to set goals and to hold the office and staff accountable for meeting those objectives. Ronald Wright and Marc Miller also see a direct connection among greater transparency, performance, and organizational change within prosecutors’ offices. In advocating for greater transparency through the publication of analyses of data, the authors note that “the most promising strategies will build on the transparency that becomes possible with improved case data management. . . . This transparency can break down the institutional barriers that keep local priorities hidden at higher levels of bureaucracies, and those that keep individual prosecutor practices hidden from organizational review.”31 Indeed, many of the calls for greater data collection, analysis, and reporting by prosecutors’ offices center around the need to address issues of mass incarceration and racial disparity in the justice system—­issues that many contend require changes in the organization and culture of prosecutors’ offices. But to achieve meaningful organizational change, prosecutors also need to use data and analytics to examine organizational performance. The American Prosecutors Research Institute, for example, developed a set of prosecutorial performance measures centered on measuring prosecutor offices’ achievement of three goals of prosecution: promoting fair, impartial, and expeditious pursuit of justice; ensuring safer communities; and promoting integrity in the prosecution profession.32 Nonprofits such as Measures for Justice33 and academic partnerships such as the data-­informed prosecution project at Florida International University and Loyola University Chicago have sought to expand on these mea-

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sures by partnering with prosecutors’ offices to develop and test a range of metrics.34 These efforts seek to go beyond traditional performance measures, such as conviction rates and time to disposition, to metrics focused on new approaches to prosecution, such as the percent of cases diverted, the number of community meetings attended by prosecutors, the number of days from arrest to first contact with victims, and racial and ethnic disparities in case outcomes.35 Using data to examine organizational performance and individual attorney performance is premised on the idea that data can and should be helpful when trying to reform the criminal justice system. This may include examining racial and ethnic disparity in charging decisions and the use of diversion36 and/or using data to ensure conviction integrity.37 For example, knowing that the dismissal rate for cases with victims of color is increasing over time can help prosecutors develop targeted strategies for initial and follow-­up interactions with community groups, victim services, and advocacy groups. Recognizing which diversion programs most effectively reduce recidivism can help offices choose which programs to offer to which defendants. Using such data does not replace the consideration of individual facts in each case, but it provides additional tools for pursuing justice while maximizing benefits for the community. Ronald Wright and Marc Miller argue that this heightened availability and utilization of data also can increase “bureaucratic accountability”38 or internal controls on practices within offices. By collecting and analyzing data on case outcomes and decisions across attorneys, elected prosecutors can more effectively manage attorneys within their offices by setting clear policy and monitoring its implementation.39 As Wright and Miller point out, data allows offices to go beyond assessing individual attorney performance in an individual case to assessing office performance across all cases.40 At the most basic level, this may include the use of data to guide the allocation of resources and thereby make prosecutors’ offices more efficient. George Gascon, while serving as the San Francisco District Attorney, described the DA’s office as “a multimillion dollar public law firm using government and taxpayer resources without really understanding where the money was being invested [and] whether it was being invested wisely.”41 Gascon bemoaned the office’s inability to answer common questions related to prosecutor caseloads, the number of cases

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disposed, and time to disposition. Therefore, he developed DAStat, a data-­driven approach to managing his office. Such seemingly basic information provides necessary inputs enabling a district attorney to determine how many attorneys an office may need, which units need additional attorneys, and where resources may be invested within the office to achieve a more equitable distribution of workloads and more timely and appropriate disposition of cases. At a workshop convened by the Rand Corporation, prosecutors described a very clear link between the ability to collect and analyze data and the size of prosecutors’ budgets, noting that budgets often are developed and approved based on the number of cases handled by prosecutors’ offices. Thus, the simple description of data on cases charged or disposed becomes important to prosecutors’ budgeting processes as well as the approval of budgets by local and state administrators.42 Moreover, as calls for reallocating law enforcement resources continue, prosecutors’ offices can similarly use data and analytics to determine how best to reallocate prosecutorial budgets as well, moving resources, for example, from traditional, trial-­ focused areas to more community-­focused projects such as community prosecution, victim liaisons, and community outreach specialists.

Why Prosecutors Don’t Collect, Analyze, and Use Data In a 2019 article, George Gascon was quoted as saying, “You’d ask people around the office how many cases we have . . . and depending on the day of the week and who you’d ask, you would get significantly different answers. . . . The reality is that people would keep their own Excel sheets. Some were actually in handwriting.”43 While the benefits of being a data-­driven organization may seem obvious, becoming a data-­driven organization is not straightforward or easy. All data-­driven organizations face a common struggle—­how to collect, manage, and integrate data into decision-­making.44 There is a perception that prosecutors’ offices may be further behind than other organizations (including other criminal justice agencies), with a general lack of data and a lack of capacity to analyze data. Although there may be some truth to the latter, prosecutors’ offices generally collect a great deal of data—­just not always in a format useable for analyses. Recent case studies of data-­driven organizations found that many organizations

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struggle more with figuring out how to deal with the information they already have—­how to “manage the processes needed to ensure its timeliness, accuracy, completeness, and reliability.”45 The increased use of technology and inexpensive computing power—­particularly electronic prosecutorial case management platforms that systemize and routinize information-­gathering—­have made collecting information easy. Turning it into useable data poses more of a challenge. This requires hiring a new set of staff with analytic skills and deploying them to engage the often tedious work of aggregating, cleaning, merging, and recoding data. At this point, prosecutors’ offices often struggle. They lack the analytic capacity within their offices to turn data into something that can be used for, and integrated into, decision-­making.46 In the end, three issues tend to limit prosecutors’ ability to operate as data-­driven organizations: usable and accessible data; analytic capacity; and a general skepticism toward the use of data among staff. Let’s discuss each in turn.

Useable and Accessible Data Prosecutors often cite a lack of data as a primary obstacle to the meaningful use of information. In the past, the largely paper-­based record keeping of prosecutors’ offices hindered the ability to assemble aggregate data easily about cases, which in turn inhibited many types of analyses. Offices could access a great deal of information about a single case or a sample of cases; but collecting data about all cases in an office or creating a data set that would allow analyses of trends in cases over time or of disparities in cases across groups was difficult if not impossible. This generally is not true anymore, as the large majority of offices currently rely on electronic case management systems to collect and store information about cases.47 The difficulty now revolves around the usefulness and accessibility of the data. In other words, many of the case management systems do not collect the kind of information prosecutors’ offices need to become data-­driven organizations or do not collect information in a manner that is easily usable. An Urban Institute study identified seven foundational metrics to describe and assess how prosecutors handle cases: the number of cases referred for prosecution; the number of charges at arrest; the number

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of final charges; the number of cases declined; the number of cases dismissed; the number of cases resolved by guilty plea; and the number of cases resolved by trial.48 The researchers found that 94 percent of offices surveyed collect at least one of these measures; however, just 41 percent collect all seven.49 The researchers also found that large offices tended to collect more data compared to small offices, with roughly 62 percent of large offices collecting all seven metrics, compared to only 25 percent of small offices. Small offices also were less likely to collect information on case outcomes, with only 49 percent of small offices collecting information on cases declined, and 47 percent collecting information on cases dismissed. Moreover, only 42 percent of all offices track defendant characteristics, and only 31 percent track victim characteristics—­making it impossible for more than 50 percent of offices to examine issues such as racial and ethnic disparity in case outcomes.50 Finally, very few offices collect information on the impact of their decisions. Specifically, the Urban Institute survey found that less than 25 percent of prosecutors’ offices collect information on recidivism, less than 30 percent collect information on pretrial detention or prosecutors’ recommendations for pretrial supervision, and less than 50 percent collect information on prosecutors’ sentence recommendations—­making it impossible for more than 50 percent of offices to assess the effects or effectiveness of any of their decisions.51 Data quality also presents challenges for any data-­driven organization. So, it is not surprising that prosecutors’ offices often struggle with the accuracy of the data entered and extracted from electronic case management systems. Problems stem, in part, from the way offices enter information into these systems and the way offices handle cases. Specifically, the larger the number of people entering information about a single case, the greater the likelihood of error from the entry of inconsistent information.52 Offices sometimes lack clarity on who is responsible for entering information about a case. In offices where multiple people enter information (e.g., attorneys, staff, and interns), we often see incomplete, duplicate, and/or inconsistent data. For example, when staff do not know who bears ultimate responsibility for data entry, information may not be entered at all. Or without clear guidance on how to interpret information, data may be entered multiple times or may be interpreted differently depending on who is documenting the information. People

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may have different understandings of what it means for a case to be dismissed or declined, for example.53 Another frequent challenge is when prosecutors’ offices do not collect or maintain the information itself. The prosecutors’ offices may only access information stored across different agencies.54 The Urban Institute found that more than 75 percent of prosecutors’ offices received data or records from other agencies.55 In such instances, prosecutors’ offices must rely on the data quality assurance procedures in these other agencies and must assume that the data they receive is accurate and complete. Those assumptions may not be accurate. An even more fundamental problem faces many prosecutors’ offices. The case management systems themselves may not be up to the task. As the Vera Institute of Justice noted, “[S]uch systems are rarely designed to marshal the aggregate information required. . . . A standard case management system may make it possible to follow the decisions of individual prosecutors in specific cases, but it probably cannot identify how an office of prosecutors exercised its discretion collectively.”56 In other words, while case management systems may collect a great deal of information, extracting that information in a way that allows for analyses is difficult. In Wisconsin, for example, all prosecutors’ offices use a statewide case management system (PROTECT), created and maintained by the state.57 Although the PROTECT system captures a large amount of information about cases, the system allows individual offices to extract just a small portion of that data and then only through preset tables or queries; individual offices cannot simply extract all of the data about their cases or retrieve it in a format most useful for analyses.58 Other prosecutors similarly have experienced a disconcerting lack of control over the data their offices collect when using third-­party vendors for case management systems.59 Prosecutors note that these vendors often control both the kinds of data that can be collected as well as the ability to use the data for analytic purposes. Specifically, prosecutors have found that off-­the-­shelf case management systems often do not meet all the data needs of prosecutors’ offices and that it is difficult to induce vendors to tailor a case management system to the specific needs of an office.60 While this may limit the types and quality of data that prosecutors’ offices can collect, third-­party vendors also often constrain the ability of prosecutors’ offices to use the data collected. For example,

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according to a recent Rand Corporation report, prosecutors noted that third-­party vendors often retain ownership of the data entered into proprietary case management systems, restricting offices’ ability to either extract the data for analytical purposes and/or to retain the data if they were to end the contract with the vendor.61 In the end, some prosecutors’ offices continue to struggle with a lack of data, particularly small offices still using paper-­based systems. However, for many offices, the critical issue is not necessarily a lack of data but rather a lack of easily accessible data in a format suitable for analyses.

Analytic Capacity The limitations posed by a lack of usable data are compounded by a lack of staff in most offices with the skills to access, manipulate, and analyze available data. The Urban Institute found that, while 100 percent of large prosecutors’ offices had staff that devoted their time to data collection and analyses, just 61 percent of medium-­small offices and 48 percent of small offices deployed staff to collect and analyze data; overall, 26 percent of offices said they allocated no staff time for this purpose.62 More important, perhaps, only 19 percent of all offices had dedicated data analysts on staff to collect, analyze, and interpret data for decision-­ making; rather, the large majority of offices relied on senior attorneys or IT staff for such responsibilities.63 As the Rand Corporation notes: “Data have long been the primary tool for criminal justice decision making. However, in contemporary times, agencies are not equipped to take advantage of all that data have to offer, even though the efficient use of data and data analyses is what creates successful organizations.”64 This lack of analytic capacity clearly interferes with many prosecutors’ offices becoming the data-­driven organizations that the system and the public expect. As a result, prosecutors’ offices have begun to recognize the need for a new, specialized staff.65 In addition to attorneys with knowledge of substantive areas of law, prosecutors clearly need to hire and deploy analytical staff. Thus, there is a need not only for technical staff with skills in data engineering or data science but also for data analysts who can interpret and present qualitative and quantitative data to help inform prosecutors’ decisions. Hiring dedicated staff may be more likely in larger offices with greater resources. Several prosecutors’

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offices—­including San Francisco,66 San Diego,67 and Manhattan68—­ have maintained staff dedicated to data collection and analysis for several years. Others have started to build an analytic capacity. The Cook County State’s Attorney’s Office, for example, has a chief data officer who oversees a team of analysts. When State’s Attorney Kim Foxx began her first term, she not only created the position but also elevated the profile of that role. The chief data officer occupies a position in the organizational chart on the same level as the chief of staff, chief ethics officer, first assistant, director of policy, and external affairs director.69 Similarly, when Larry Krasner assumed the leadership of the Philadelphia District Attorney’s Office, he created a new unit—­the DATALab—­to better incorporate data into decision-­making.70 In both instances, these newly elected prosecutors recognized the need for internal analytic capacity, as well as the untapped opportunities that improved data collection and analysis could bring. The movement toward creating analytic capacity is beginning to expand as prosecutors increasingly recognize the linkage between analytics and reform efforts. However, in many offices—­both large and small—­ resource constraints often prohibit the hiring of data analysts and/or the creation of new, in-­house data analysis units. To bridge this gap, many agencies are establishing external partnerships to create that critical capacity. There are opportunities to partner with academic institutions or nonprofit organizations that can carry out much of the analyses and reporting for offices that lack the internal structures or resource capacities. Promising collaborations include the partnership between Florida International University/Loyola University Chicago and four prosecutors’ offices to create performance metrics;71 that between the Institute for State and Local Governance and the Brooklyn District Attorney’s Office to assist the office’s implementation of its strategic plan;72 and that between the Public Safety Lab at New York University and the Suffolk County District Attorney’s Office.73 Many prosecutors’ offices recognize this benefit, acknowledging in discussions with the Rand Corporation “that prosecutors and researchers can forge a mutually beneficial collaboration. Researchers and other academics can perform complex data analyses to help prosecutors make sense of trends or patterns that emerge from criminal cases and provide feedback on how prosecutorial actions or practices affect specific outcomes.”74

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Data Literacy Having usable data and analytic capacity will still not be enough to make the office a data-­driven entity. Such organizations also must build a data-­literate workforce—­that is to say, organizations must have employees who understand and use data analyses in their decision-­making.75 A recent survey of managers in public and private organizations found that the primary obstacle to using data and analytics effectively was “developing middle management skills at interpretation.” To become a data-­driven organization, prosecutors need to assist middle managers in becoming comfortable with using data, understanding analytics, and translating analytics into action. Creating such a data-­literate workforce requires a well-­designed data literacy program—­involving training, mentoring, and tools—­to assist employees who are not data scientists or who are often openly hostile to data in deriving insights from data analyses.76 One commentator likened transforming into a data-­driven organization to the emergence of personal computing in the 1980s, which similarly required training initiatives to get employees familiar with digital computing and comfortable using computers to do their jobs.77 Prosecutors’ offices face a similar challenge: raising attorneys’ familiarity with data and increasing their comfort with using data in decision-­making. Like any organization seeking to become data-­driven, prosecutors’ offices face internal skepticism about the efficacy of data. Prosecutors will often doubt the ability of data to capture the nuances of their work and the utility of data to drive decision-­making. As part of a research/ technical assistance project in four prosecutors’ offices,78 attorneys were asked what kind of data would help them do their jobs better. Many argued that they simply do not use data. To many attorneys, “data” means summary statistics, and they argue that prosecutors’ decisions should be driven by the facts in each case rather than by numbers summarizing “typical” cases.79 The reality in many prosecutors’ offices is that line prosecutors and their supervisors generally are not evaluated on the cumulative impact of their decisions, and thus they do not see much value in looking at trends in decisions and outcomes for themselves, their units, or the office. In discussions with line prosecutors, many maintain that the unique nature of each case makes generalizing across

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cases impossible. In fact, many prosecutors seemed convinced that data would actually bias their decisions and keep them from focusing on the individual case facts. Relatedly, prosecutors have complained that data analyses would run counter to an individualized approach to prosecution. As the Urban Institute survey found, “for certain participants, these data shortcomings were so extreme that they felt that data-­driven decision making conflicted with prosecutorial duties.”80 The takeaway? Many prosecutors miss or misunderstand the benefits of data. What many line prosecutors do see, unfortunately, is the potential for data to be used against them.81 In recent interviews with line prosecutors, some expressed a concern that analyses of case outcomes would be used inappropriately to label offices, units, and individual prosecutors as racist, or punitive, or even lazy. Whether or not these labels are fair, the adverse reaction from line prosecutors may be understandable. No one would want to be singled out for worsening racial disparities, or for putting too many people in prison, or for failing to move cases along fast enough. It certainly does not help to persuade nervous line prosecutors that we still do not have many national examples where data has made their daily lives easier and their decisions better. As noted above, many line prosecutors will state that they simply do not use data. Others, however, equate data solely with case specific pieces of information—­such as an individual’s prior criminal history or the factual details of the offense—­that could help them decide the appropriate disposition for each case they process. This presents a separate problem for prosecutors’ offices looking to become data-­driven: prosecutors do not really understand what is meant by the word “data” for a data-­driven organization. Thus, many prosecutors’ offices have to overcome both the fear of data among line staff and supervisors as well as the lack of knowledge about what is meant by “data.” When the constraints become a lack of understanding of data and a general skepticism toward data among staff, prosecutors’ offices are not alone. Most organizations seeking to become data-­driven organizations face the need to overcome these constraints and create a data culture in which there is a general respect for and use of data. This data culture must permeate all aspects of the prosecutor’s office. As others have noted, “[T]reating data as a resource only relevant to specific parts of a firm for the creation of reports or to look at narrow questions limits the

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potential for developing insights that can lead to meaningful changes in practice and policy or to significant reforms.”82 Thus, in order to create an enduring data culture, data must be made available to prosecutors at all levels, and data literacy must be expected at all levels of the prosecutor’s office.

What It Means for Prosecutors to Use Data Upon the launch of The Justice Wire, his office’s new online media center, in 2019, Philadelphia District Attorney Larry Krasner remarked: “This site replaces fear-­driven fiction with fact. It replaces doubt with data to tell a true story that hasn’t been told about crime, public safety, our people, our City.”83 However, the use of data and analytics by prosecutor’s offices actually is not new. The Orleans Parish District Attorney’s Office, for example, appreciated the importance of collecting and analyzing data in the 1980s.84 Beginning in 1988, Harry Connick Sr., the Orleans Parish District Attorney at the time, required line prosecutors to maintain an electronic record of the reasons for their decisions to decline a case for prosecution. Supervisors then used the data to evaluate the performance of individual prosecutors, including the rate at which prosecutors declined cases and the timeliness of each prosecutor’s work. The increased use of case management systems in the 1980s and 1990s increased the ability of other prosecutors’ offices to similarly examine caseloads, the number of cases disposed, and the time to disposition.85 And yet on a national scale, similar efforts remained limited throughout much of the early 2000s.86 Those instances where prosecutors’ offices used data and analytics generally did not rise to the level of data collection, analysis, and usage found in true data-­driven organizations. These offices were not using data “in highly intentional, systematic ways to address strategic challenges and react to—­and in many cases anticipate—­sweeping changes” in their fields.87 In data-­driven organizations, data is seen as a “core asset” used in decision-­making and strategy throughout the organization and viewed by leadership as central to improving their ability to innovate and engage in strategic planning. Data-­driven organizations thus go beyond using data and analytics to address limited operational issues and/or basic reporting. Instead, with strong leadership, data-­driven or-

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ganizations have advanced further by using data and analytics to create new models of doing business. Several prosecutors’ offices have embraced this approach, using data and analytics to drive change. That data provides them with insights into how they engage with the community, evaluate performance, and prosecute cases. While there are likely other instances of prosecutors engaging in practices indicative of a data-­driven organization, the examples provided here are meant simply to illustrate how data can be incorporated into the way prosecutors’ offices do business.

Data Dashboards Data offers organizations the opportunity to engage in new ways with people inside and outside the organization. Several prosecutors’ offices have begun to do this through the use of public data dashboards. Public­and private-­sector organizations use data dashboards to display data points visually, to enable analysis of key performance indicators, and to monitor specific processes or decisions. The San Francisco District Attorney’s Office, for example, created a set of three public data dashboards that it updates monthly. They provide graphical displays showing the number of cases referred to the office, the initial decision to accept/ reject a case for prosecution, the number and type of cases filed, and outcomes for cases adjudicated at trial for all cases since 2010.88 The Cook County State’s Attorney’s Office created a similar public dashboard that examines cases referred, cases filed, dispositions, and sentences imposed for all felony cases referred to the office or disposed of by the office since 2010.89 The dashboard is linked directly to the office’s case management system and is updated automatically as data is entered into the system, making it a near-­real-­time display of the office’s performance. The Philadelphia District Attorney’s Office provides what is possibly the most comprehensive and innovative public dashboard, providing information on incidents, arrests, charges filed, bail decisions, case outcomes, and time to disposition.90 In addition to graphical representations of the data showing trends over time, the dashboard uses maps to show geographic distribution of cases, provides tables of the underlying data, and includes short interpretations of the data to indicate the most important takeaways from the data (e.g., indicating percent change from

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the prior year). The dashboard also provides a short description of the data source, definitions of key terms, and a list of limitations of the data and analyses. Overall, the dashboards seek not only to provide the public with a visual representation of the data but also to educate public users—­who may not be data-­savvy—­about the data, the analyses, and the key findings. To that end, the Philadelphia District Attorney’s dashboard includes data-­based narratives focusing on specific topics. For example, the site discusses the increased use of diversion in Philadelphia,91 explains items such as the movement of cases from incident to arrest to charge,92 and examines the influence of “outlier” cases on not-­guilty verdicts in aggravated assault cases.93 Each of these “data stories” provides longer-­form narratives that supplement the presentation of the data. In the end, these data stories and visualizations engage the community in new ways. They do not merely present data; they take the time to help the public understand trends and changes in the office and in its policies. Dashboards also serve an important internal function: they provide prosecutors’ offices an opportunity to examine their own work more closely. By visualizing data—­rather than simply presenting data as tables of numbers or spreadsheets—­dashboards can engage staff and supervisors in new ways, making data more accessible, increasing data literacy, and encouraging internal performance measurement. Indeed, in promoting his office’s dashboard, Philadelphia District Attorney Krasner noted the parallel impacts that it may have by allowing both the public and the office to track performance: “Not only will the DAO Dashboard empower the public to hold the criminal justice system accountable, and to hold me accountable, it will allow the Philadelphia District Attorney’s Office to track its work and make adjustments to policies and procedures as needed in order to further our goals of ending mass incarceration and supervision while keeping our City safe.”94 In the end, dashboards represent a significant movement toward prosecutors’ offices as data-­driven organizations—­promoting greater transparency, community engagement, and internal monitoring.

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Public Data Portals Generally speaking, data dashboards provide visualizations of data but do not make the underlying data available to the public. The ACLU has urged greater transparency in prosecutorial decision-­making by calling for broader dissemination of actual prosecutor data: “Making data and policies transparent is . . . critical for demonstrating systemic problems, motivating policymakers, and developing effective solutions.”95 The ACLU proposes a model statute—­t he “Prosecutorial Transparency Act”—­which would require all prosecutors to gather and report data on decision-­making. As noted above, Connecticut became the first state to pass such a law, requiring all prosecutors in the state to collect specific data and report it to the state’s Division of Criminal Justice.96 It does not appear that the underlying data is yet available to the public. However, analyses produced using the data have been made available through two annual reports by the Connecticut Office of Policy and Management.97 In the absence of statewide prosecutorial transparency laws, several individual prosecutors’ offices have taken the initiative to make their case-­level data available to the public through “open data portals.” Cook County was the first jurisdiction to do so. Soon after State’s Attorney Kim Foxx took office in 2016, she released seven years of case management data through Cook County’s open data portal.98 This data includes information on all felony charges referred to, or disposed of, by the office since 2010, including information on charges, defendant demographics, dispositions, and sentences. Several prosecutors’ offices, including Philadelphia99 and San Francisco,100 have followed suit by publishing their own case-­level data. In releasing the data to the public, State’s Attorney Foxx noted that enabling “members of the public to do their own rigorous analysis is at the heart of data transparency. . . . I welcome community members’ input, analysis, and creativity.”101 In promoting the data portal for his office, District Attorney Krasner similarly embraced the opportunity of open data to increase accountability and to “reset” the relationship between the prosecutors’ office and the public, noting that open data ensures “there is more shared power, more shared decision-­ making, and greater accountability for those who have enormous authority over citizens’ freedom and lives.”102

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To ensure that the public can make use of this data, prosecutors are also promoting data literacy among the communities they serve. The Cook County State’s Attorney’s Office, for example, not only made data available to the public but also started a nonprofit, Hacking 4 Justice, dedicated to providing free data analysis training events for the public to learn how to work with the prosecutor’s data.103 As Foxx described it: “It is not enough just to make data available without context or support. . . . [W]e have also begun to offer training workshops to empower community members to engage with the data themselves, regardless of technical background.”104 The Philadelphia District Attorney’s Office also planned training opportunities for staff, community groups, and the media to assist the public in learning how to use the data “to hold their government accountable.”105 Given the historic opacity of prosecutor data and prosecutorial decision-­making, the public release of meaningful case-­level data is remarkable and marks a dramatic shift in the ways that prosecutors’ offices are using data. More important, the increased training and engagement with the community demonstrate a willingness to engage the public as a partner in transforming the local prosecutor’s office into a data-­driven organization.

Performance Measurement and Program Evaluation Data for data’s sake is not useful unless it is put into practice internally as well. Most prosecutors’ offices collect an immense amount of data in case management systems, and some of this data is likely used simply to find out about cases and/or to generate reports. But becoming a data-­ driven organization really starts by putting data to use. According to the Urban Institute survey, prosecutors’ offices collect a great amount of data that could be used for performance measurements.106 For example, 84 percent of prosecutors’ offices collect information on the reasons for dismissal of charges, 60 percent collect information on the reasons for declinations, and 41 percent collect information on the reasons for a bail recommendation. And most offices put the data to use, with 72 percent using data to manage the allocation of time or resources and 65 percent using data to set policy or guidelines. Nonetheless, while offices may use data to allocate resources and/or set policy, few are using data to track conformity with those policies and guidelines. When asked

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about compliance with guidance on bail, diversion, and sentencing, less than one-­third of prosecutors’ offices surveyed by the Urban Institute reported collecting data on that type of compliance, and only 23 percent of offices reported using data to measure or assess performance. Performance measurement involves using data to diagnose—­in other words, to assess, evaluate, and/or examine whether the office is achieving and/or making progress toward its goals. But this also necessitates some discussion of office goals and priorities as a predicate. Any performance measurement effort should start with a clear articulation of the goals the office aims to achieve and/or the priorities it wants to address. Several efforts to develop, implement, and evaluate prosecutorial performance measures have been undertaken by professional groups and academics.107 A recent partnership between Florida International University, Loyola University Chicago, and four prosecutors’ offices—­in Cook County, Milwaukee County, Duval County, and Hillsborough County (the latter two both in Florida)—­has sought to develop and test a range of prosecutorial performance indicators. These performance assessments have centered on three broad goals of prosecution: capacity and efficiency; community safety and well-­being; and fairness and justice.108 Success in achieving these goals is assessed using a set of roughly 50 indicators, generally including outputs, outcomes, and/or decisions that can be measured using numerical indicators. The goal of the project is to go beyond traditional performance measures, such as conviction rates and time to disposition. To that end, an advisory board drawn from prosecutors, academics, advocates, and policy advisers has developed new performance measures. They are designed to examine and address issues of racial/ethnic disparity (e.g., victimization rates, diversion rates, and dismissal rates by race/ethnicity), unnecessary incarceration (e.g., pretrial detention rates, percent of cases with incarceration sentence), and community engagement (e.g., prosecutor participation in community outreach activities, number of community meetings held in low-­income neighborhoods); as well as issues of organizational capacity (e.g., attorney and staff retention rates, leadership diversity), serious crime (e.g., violent recidivism rates, diversion failure rates), and prosecutorial ethics (e.g., number of conviction integrity investigations, number of reversals for Brady violations). While still in the pilot phase, the four prosecutors’ offices involved in the project have begun to exam-

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ine three-­year trends within these metrics and are using them to gauge office performance going forward. In addition to performance measurement, prosecutors’ offices can use data to develop and evaluate the success of specific programs. The San Francisco District Attorney’s Office appears far ahead of other offices in using data in this way. For example, in 2012, the office implemented the Sentencing Planning program, which uses a risk/needs assessment to develop alternative sentencing plans to refer defendants to vocational training, mental health services, substance abuse treatment, and housing services.109 The office has also partnered with academics to develop the first “blind-­charging tool,” which uses artificial intelligence to remove “race information and other details that can serve as a proxy for race in order to ensure prosecutors’ charging decisions are not influenced by implicit biases.”110 Other efforts initiated by the office have relied on data to examine restorative justice programs for juveniles, interventions for individuals frequently arrested, and diversion programs. The Manhattan District Attorney’s Office similarly uses an internal dashboard to track performance and to evaluate its specific initiatives.111 When he took office, Manhattan District Attorney Cyrus R. Vance Jr. created the Strategic Planning and Policy Unit to drive change through the use of data collected by the office. Since its creation, the unit’s analyses have been used to reform the office’s case screening process, to revise bail practices and the handling of low-­level misdemeanor cases, and to assess the implementation and impact of diversion programs, charging policies for low-­level offenses, summons practices, and alternatives to detention.112 Several prosecutors’ offices also have begun to use data to examine racial and ethnic disparity in prosecutorial outcomes. The San Francisco District Attorney’s Office, for example, partnered with academics to examine racial/ethnic disparity in case outcomes.113 The four county prosecutors’ offices mentioned just above (Cook, Milwaukee, Duval, and Hillsborough) similarly partnered with academics from Florida International University and Loyola University Chicago to examine racial/ethnic disparities across five case outcomes.114 In one of the earliest efforts, four prosecutor offices (Milwaukee, Mecklenburg in North Carolina, San Diego, and Manhattan) partnered with the Vera Institute of Justice to examine racial and ethnic disparity across a range of case outcomes—­ from screening to plea offers to sentencing—­as part of the Prosecution

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and Racial Justice Project.115 These collaborative efforts resulted in several changes to practices within the offices. For example, in Milwaukee County, evidence of racial disparity in the acceptance rates of misdemeanor drug paraphernalia cases led to a policy that directed screening prosecutors to decline such cases whenever it was reasonable to do so and to refer the arrested individuals to drug treatment.116 Although the policy change did not directly focus on race, the racial disparity in drug paraphernalia cases disappeared soon after it was implemented. Similarly, in Manhattan, researchers uncovered racial disparities in pretrial detention for misdemeanor “person crimes” and dismissal rates for misdemeanor drug offenses; in response, the office ended the prosecution of low-­level offenses that did not compromise public safety and developed alternatives to cash bail and pretrial detention.117 Several offices across the country have moved to fully incorporate data and analytics into program development and reforms. However, this movement is still limited to a small percentage of offices overall. Indeed, the recent Urban Institute survey found that only 37 percent of prosecutors’ offices used data to implement crime suppression strategies, to implement and evaluate alternative programs, to address changes in offense trends, and/or to better identify cases for enhanced or alternative prosecution.118 Thus, although the availability of data has created opportunities to better evaluate programs and assess performance, prosecutors’ offices are just beginning to undertake these efforts.

Intelligence-­Driven Prosecution Perhaps the most significant move toward becoming a data-­driven organization involves integrating data-­informed approaches strategically into everyday decision-­making. In private-­sector data-­driven organizations, this often involves using data and analytics to innovate and gain a “competitive advantage.”119 In prosecutors’ offices, this innovation can take the form of data dashboards, performance metrics, and program development and evaluation. All represent innovations in how prosecutors manage their offices and assess achievement of goals. But how can prosecutors’ offices gain the equivalent of a competitive advantage? Some prosecutors’ offices are starting to use data in ways similar to law enforcement agencies. They are employing data to identify and target

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defendants whom they consider to be a risk for future criminal activity; in this way they are gaining an advantage in ensuring public safety.120 Under these “predictive” or “intelligence-­driven” prosecution models, prosecutors use information about defendants, cases, and crime trends to shape bail requests, charging decisions, and sentencing recommendations in individual cases to target at-­risk defendants for differential treatment. The former Manhattan District Attorney Cy Vance describes this as a “Moneyball” approach to prosecution.121 When Cy Vance took over as Manhattan District Attorney in 2010, he implemented the Intelligence-­Driven Prosecution Model—­an approach to prosecution that relies heavily on the use of data to prosecute cases strategically.122 The model starts with the premise that prosecutors rarely have enough information about defendants or crime patterns to make nuanced decisions about charges, bail, and/or plea offers. Building on the community prosecution model and the expanded use of data in other parts of the criminal justice system, the office created the Crime Strategies Unit, which links several prosecutorial databases to build a single database of information about suspected criminal defendants, examining “people, places, and problems driving crime in specific neighborhoods.”123 The effort began with precinct-­based crime assessments in which crime analysts within the prosecutor’s office worked with local law enforcement to identify major crime problems based on CompStat124 reports, details of homicides and shootings, a list of “hot spots,” and a list of local gangs. Prosecutors then identified individuals who were repeat offenders responsible for a high volume of criminal activity within each precinct and entered their names into an Arrest Alert System. That system records information such as a defendant’s criminal associations and gang involvement. The idea behind the strategy is to identify individuals who are likely to engage in future criminal activity; when these individuals come into contact with the prosecutors’ office through an arrest, prosecutors are alerted and can more effectively determine bail, charging, and sentencing decisions based on the information provided. This data-­driven approach includes several examples depicting how prosecutors’ offices are expanding the collection, analysis, and use of data. In Manhattan, for example, the system involves collection of data not previously collected in case management systems, including defendant criminal associations, recordings of inmate phone calls from Rikers

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Island, and police data on hot spots. But the system also involves using data in new ways, for instance, using the Surveillance Camera Interactive Map to track locations and contact information for 6,000 public and private surveillance cameras and creating “violence timelines” that track patterns in reported and unreported crime (e.g., shootings) through social media. Similar efforts at intelligence-­driven prosecution are underway in Cook County and San Francisco, with prosecutors’ offices gathering data and/or linking to external data sources and integrating that data into decisions on individual cases.125 Although these initiatives are innovative, several critics have raised concerns about the use of intelligence-­driven prosecution, particularly around the problems of data reliability, erroneous correlations, and a lack of transparency in how defendants are identified for inclusion as “targets” for differential treatment. As some critics have noted, “[W]hile these problems matter when it comes to questions of where to send a patrol car, or even whom to investigate, they matter much more when data directly impacts a prosecutor’s decision about individual liberty.”126 Although such approaches may demonstrate the extent to which some prosecutors’ offices have embraced the movement toward becoming data-­driven organizations, important questions remain unresolved about the extent to which data and analytics should inform discretionary decision-­making. These approaches also raise questions as to whether the tools they use build in and exacerbate racial disparities.

Conclusion Prosecutors’ offices increasingly are expected to become data-­driven organizations, using data and analytics to improve the efficiency and effectiveness of their operations, to engage in new and more meaningful ways with people inside and outside their organizations, and to change how their offices operate. Many prosecutors’ offices have taken steps in that direction—­building dashboards to visualize data about cases, opening prosecution data up to the public, using data to develop and evaluate programs and practices, and strategically integrating data into decision-­making. Nevertheless, despite demands for greater collection, analysis, and use of data, it is unrealistic to expect prosecutors’ offices—­organizations

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without experience collecting and using data to support decision-­ making—­to develop this capacity overnight. Many offices do not even record the data they need. Others are missing the staff and knowledge necessary to analyze essential data. And many do not have the capacity and structures in place to use data to guide current decision-­making and future reforms. Prosecutors’ offices are being asked to catch up quickly to their colleagues within the criminal justice system. Large prosecutors’ offices increasingly are building that data and analytic capacity. Prosecutors in Cook County, Philadelphia, and Manhattan, for example, have full-­time research staff whose sole responsibility is to collect and analyze data to guide policy and practice within the office. Other offices have partnered with academics and nonprofit organizations to collect and analyze data for individual projects and/or to provide technical assistance in developing such capacity. However, the vast majority of prosecutors’ offices still lack the resources to develop large-­scale, in-­house research units or lack experience partnering with academics and technical assistance providers to conduct important research. It will take vision and advocacy for prosecutors’ offices to become the data-­driven organizations that they need to be and that the public expects. Notes

1 See, e.g., Erin Murphy, Databases, Doctrine & Constitutional Criminal Procedure, 37 Fordham Urb. L.J. 803, 825 (2010) (describing law enforcement databases); Jason Kreag, Prosecutorial Analytics,” 94 Wash. U. L. Rev 77 1, 778–­81 (describing the use of analytics in law enforcement). The Federal Bureau of Investigation’s Uniform Crime Reporting (UCR) program has been collecting data from participating city, university and college, county, state, tribal, and federal law enforcement agencies since 1930. More than 18,000 law enforcement agencies currently report crime and arrest data to the FBI under the program. See, e.g., Federal Bureau of Investigation, Crime in the United States, 2018, https://ucr.fbi.gov . 2 Several state court systems rely on the CourTools performance metrics created by the National Center for State Courts; for a list of state reports relying on CourTools, see the National Center for State Courts website, www.courtools.org. For specific state reports, see, e.g., Judicial Council of California, 2019 Courts Statistics Report, www.courts.ca.gov (reporting annual court performance metrics for the state); Michigan Supreme Court, Performance Measures Data, https://courts. michigan.gov (reporting county-­level performance metrics). 3 State sentencing commissions in several states publish annual reports looking at trends in sentencing outcomes. For a list of sentencing commission reports, see the University of Minnesota Robina Institute, Sentencing Guidelines Resource

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4

5

6

7

8

Center, https://sentencing.umn.edu. For specific state reports examining sentencing trends, see, e.g., Kansas Sentencing Commission, FY 2018 Annual Report (examining sentencing patterns across the state); Pennsylvania Sentencing Commission, 2018 Annual Report (examining sentencing trends and patterns); see also Dawinder S. Sidhu, Moneyball Sentencing, 56 B.C. L. Rev. 671 (2015) (examining the increased use of data-­driven risk assessment tools in sentencing). Nearly every state department of correction releases an annual organizational and statistical report, which generally includes data on prison admissions, releases, and stock prison populations. See, e.g., Illinois Department of Corrections (2020), Fiscal Year 2019 Annual Report www2.illinois.gov. See, e.g., Michigan Department of Corrections, Report to the Legislature (2020), www.michigan.gov. Such reports are mandated by the state under P.A. 64 of 2019 Section 401 Prison Population Projection Report. See, e.g., Wisconsin Department of Corrections, Recidivism after Release from Prison (2016), (examining new offenses resulting in a conviction and return to prison one, two, and three years after individuals were released from prison), https://doc.wi.gov. See, e.g., Washington State Department of Corrections, Tracking Washington State Offenders Pilot Study: Do Education Programs Affect Employment Outcomes?, www.doc.wa.gov. The Federal Bureau of Investigation’s Uniform Crime Reporting program, for example, aggregates data from more than 18,000 agencies to create local, county, state, and national estimates of reported crime; data from the UCR is routinely cited by practitioners, policy makers, and the media to examine trends in crime rates. The Chicago Police Department, for example, provides incident-­level data on crimes reported to police through the city’s data portal, https://data.cityofchicago.org. Most state administrative offices of the courts release annual reports detailing cases initiated and disposed in state courts. Some states also provide access to individual-­level data on court cases through online data portals; see, e.g., Wisconsin Circuit Court Access, which allows the public to download individual-­ level circuit court data, https://wcca.wicourts.gov. Organizations such as Measures for Justice have relied on public court data to create cross-­jurisdictional comparisons of court performance: https://measuresforjustice.org. The Illinois Department of Corrections, for example, posts a quarterly data set containing individual-­level data on all individuals currently held in state prisons: www2. illinois.gov. The National Corrections Reporting Program (NCRP) has been collecting data from participating state departments of corrections since 1983, compiling individual-­level data on admissions to and releases from prisons and postconfinement community supervision programs for roughly 30 states. As the NCRP website states, data is “used at the federal and state levels to monitor the nation’s correctional population and address policy questions related to recidivism, prisoner reentry, and trends in demographic characteristics of correctional and community supervision populations.” See http://ncrp.info.

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9 See, e.g., Robin Olsen, Leigh Courtney, Chloe Warnberg, and Julie Samuels, Collecting and Using Data for Prosecutorial Decisionmaking, Urban Institute for Justice (Sept. 2018) (describing the limited data collection capacities of prosecutors office in the United States); Daniel S. Lawrence, Camille Gourdet, Duren Banks, Michael G. Planty, Dulani Woods, and Brian Jackson, Prosecutor Priorities, Challenges, and Solutions, Priority Criminal Justice Needs Initiative, Rand Corporation (2019) (describing the limitations of prosecutors’ case management systems and data collection capacities). 10 American Civil Liberties Union, Smart Justice, Unlocking the Black B ox: How the Prosecutorial Transparency Act Will Empower Communities and Help End Mass Incarceration (2019) (describing the need for mandatory collection of prosecutorial data to ensure data is available for analyses). 11 See, e.g., Lawrence et al., Prosecutor Priorities (describing the lack of public dissemination of prosecution data). 12 See, e.g., American Civil Liberties Union, National Voter Survey: Summary Memo (2018), www.aclu.org (calling on prosecutors to be more transparent); Fair and Just Prosecution, Our Work and Vision, (2019), https://fairandjustprosecution. org (noting that it seeks to work with “prosecutors committed to . . . enhancing transparency and accountability”). 13 See, e.g., David Sklansky, The Progressive Prosecutor’s Handbook, U.C. Davis L. Rev. 50, 25–­42 (2017) (describing the campaigns of recently prosecutors and their calls for greater transparency); David Sklansky, The Changing Political Landscape for Elected Prosecutors, Ohio St. J. of Crim. L. 14(2): 647–­674 (2017b) (describing elected prosecutors’ campaigns focused on transparency and community engagement); Note, The Paradox of “Progressive Prosecution,” Harv. L. Rev. 132, 748–­770 (2018) (describing the emergence of “progressive” prosecutors campaigning on platforms of transparency). 14 American Civil Liberties Union, Smart Justice, Unlocking the Black B ox (calling on states to pass the Prosecutorial Transparency Act that requires prosecutors’ offices to collect and disseminate data to ensure “that communities have the information they need to hold these powerful elected officials accountable.”). 15 See, e.g., Fair and Just Prosecution, Our Work and Vision (noting that they seek to work with prosecutors to change office culture and adopt approaches to public safety based on data and evidence); Vera Institute of Justice, Reshaping Prosecution Project (2019), www.vera.org (describing Vera’s prosecution project as “partnering with prosecutors to put their campaign promises into action as concrete, data-­informed policies and practices”). 16 See, e.g., MIT Sloan Management Review, Lessons from Becoming a Data-­ Driven Organization (Oct. 2016) (describing several case studies of data-­drive organizations including manufacturers, hospitals, and municipalities).

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17 John T. Chisholm and Christian A. Gossett, Law Enforcement Needs Better Data, Milwaukee Journal Sentinel, May 30, 2017, www.jsonline.com (arguing for greater data collection and use in the criminal justice system). 18 Chisholm and Gossett, Law Enforcement Needs Better Data (providing examples from their offices in which data was used to change policy and practice, particularly around issues of racial/ethnic disparity in case outcomes). 19 The idea is that a data-­driven organizations treats “data as a core asset that is an essential element of strategy . . . and uses it to deepen the engagement of employees” and constituents. See MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization, at 4. The recent set of case studies by the MIT Sloan School of Management sees this as a “management revolution,” brought on by the increasingly easy access to data and the embrace of performance metrics as a mechanism for monitoring and improving organizational and individual performance. 20 The Justice Wire is an online resource available from the Philadelphia District Attorney’s Office: https://medium.com. 21 Larry Krasner, remarks provided on the launch of the Philadelphia District Attorney’s online media center, The Justice Wire, https://medium.com. 22 Quoting from the foreword (p. 3) by John Chisholm in Race, Ethnicity and Prosecution in Milwaukee County, Wisconsin: Advancing Prosecutorial Effectiveness and Fairness Report Series (September 2019), https://cj.fiu.edu. 23 Id., 4. 24 Lawrence et al., Prosecutor Priorities, at 7 (at a recent convening of prosecutors, prosecutors noted the importance of data for transparency and the ability to communicate with the public. Based on the comments of prosecutors, the researchers noted: “There is an essential need for data transparency and quality not just within and across criminal justice agencies but also for the general public.”). 25 Olsen et al., Collecting and Using Data, 9. 26 Ronald F. Wright, Reinventing American Prosecution Systems, 46 Crime and Justice 395, at 422 (2016) (arguing that state officials should enact rules requiring prosecutors to disclose policies, priorities, and data to measure compliance). 27 Connecticut Public Act No. 19–­59 (2019). 28 American Civil Liberties Union, Smart Justice, Unlocking the Black B ox. 29 “The performance measures of nearly every local prosecutor’s office in the country are limited to gross measures of punishment, including dismissals and trial convictions. By establishing goals that encourage alternatives to prosecution rather than more punitive responses, and rewarding ADAs who meet these goals, the culture of the DA’s office will continue to change in line with the vision of Justice 2020.” Brooklyn DA, Justice 2020. 30 See, e.g., Fair and Just Prosecution, Our Work and Vision (noting that they seek to work with prosecutors to change office culture and adopt approaches to public safety based on data and evidence); Vera Institute of Justice, Reshaping Prosecu-

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31

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tion Project (describing Vera’s prosecution project as “partnering with prosecutors to put their campaign promises into action as concrete, data-­informed policies and practices”). Ronald F. Wright and Marc L. Miller, Prosecutorial Power: A Transnational Symposium: The Worldwide Accountability Deficit for Prosecutors, 67 Wash & Lee L. Rev. 1587 (2010), at 1619. Steve Dillingham, M. Elaine Nugent, and Debra Whitcomb, Prosecution in the 21st Century: Goals, Objectives, and Performance Measures (2004). The three goals articulated by the APRI include nine objectives or outcomes that gauge progress toward those goals. The objectives include holding offenders accountable, ensuring case dispositions appropriate for the offense and offender, ensuring timely and efficient administration of justice, improving service delivery for victims and witnesses, reducing crime, reducing fear of crime, ensuring competent and professional behavior, ensuring efficient and fiscally responsible management, and ensuring consistent and coordinated enforcement efforts. Measures for Justice is a nonprofit focused on collecting and reporting county-­ level data across the United States. Their performance measures include several related to prosecution: cases declined for prosecution, cases dismissed, time to disposition, and cases resulting in terms of incarceration. See https://measuresforjustice.org. Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, a partnership between Florida International University, Loyola University Chicago, and four prosecutor offices; for a project description and recent reports, see http://caj.fiu.edu. The Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project seeks to “broaden the focus beyond conviction rates by including new indicators for problem solving and community prosecution that better reflect developments nationally. The new comprehensive performance indicators tool will consist of a set of indicators, implementation guide, and data collection tools. These new indicators will provide data needed to improve strategies, reallocate resources, and develop policies that are more responsive to community needs.” In their editorial advocating greater use of data by prosecutors, John Chisholm and Christian Gosset describe their offices’ experiences in examining racial disparities. In Milwaukee County, for example, John Chisholm used case management data to uncover slight racial disparities in the acceptance rates of low-­level drug offenses and to develop reforms to promote reduce such disparities. In Winnebago County, Christian Gossett used analytics to uncover racial disparities in the use of diversion. As he notes: “Because we now know this disparity exists, we’re able to begin to identify its cause and eventually to rectify it.” See Chisholm and Gossett, Law Enforcement Needs Better Data. Lawrence et al., Prosecutor Priorities, at 9 (“The process of reviewing a case by a conviction integrity unit or other means post-­conviction is made much easier

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when the data corresponding to a case have been methodically organized and stored.”). Wright and Miller, Prosecutorial Power, at 1614. Wright and Miller, Prosecutorial Power, at 1615 (“For managing prosecutors, a greater ability to monitor policy changes in the office will expand their power to set coherent office policy and to monitor its implementation.”). Wright and Miller, Prosecutorial Power, at 1617 (“As data management becomes more widely available in prosecutors’ offices, . . . [c]hief prosecutors will need an awareness of office performance as a whole—­as reflected in statistics on crime in the community and enforcement and adjudication of criminal charges—­rather than individual attorney performance in the highest-­profile cases.”). As quoted in Laura Waxmann, DA Gascon Unveils New Prosecution Data in Move Toward Greater Transparency, San Francisco Examiner (May 29, 2019), www.sfexaminer.com. Lawrence et al., Prosecutor Priorities, at 7 (“The ability to provide accurate and complete data about case dispositions can have a financial impact on a prosecutor’s office. Sometimes, the authorized budget is based, in part, on the number and types of case dispositions a prosecutor’s office has handled. A good data management system will, for example, make it easy to provide information about case dispositions in a timely manner.”). George Gascon, quoted in Waxmann, DA Gascon Unveils New Prosecution Data. MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization. MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization, at 4. As the MIT study points out: “The leaders who mobilize their organizations to embrace and fulfill the promise of analytics, the frontline people who experience how analytics are changing their roles and responsibilities, the data scientists and IT engineers who do the hard work of collecting, classifying, organizing, and deploying staggering amounts of information—­they all help us gain a better understanding of the scope and meaning of this revolution.” MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization, at 4. As the MIT study points out: “Integrating data into decision making can be another fraught step, especially among managers accustomed to acting on gut instinct, intuition, and experience.” See, e.g., Olsen et al., Collecting and Using Data, Appendix B, Question 39 (finding that less than 10 percent of offices did not use an electronic case management). However, the Urban Institute study also found that, while almost all large and medium offices reported having an electronic case management system, nearly one-­third of small offices reported that they did not have one. Thus, the problem of “no electronic data” may remain a problem for small offices. See, e.g., Olsen et al., Collecting and Using Data. Olsen et al., Collecting and Using Data, at 6. They also identified case details that offices should seek to collect: offense type, offense severity (misdemeanor/felony),

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50 51 52

53

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58

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referring agency, assigned prosecutor, defendant characteristics, and victim characteristics. Olsen et al., Collecting and Using Data, at 7. Olsen et al., Collecting and Using Data, at 9. Lawrence et al., Prosecutor Priorities, at 9 “Using vertical prosecution can also lead to better data management. That is, when one prosecutor leads a case from the indictment or arraignment pre-­trial stage all the way through sentencing, it reduces the chances that relevant evidence or data will be lost or misplaced.”). Lawrence et al., Prosecutor Priorities, at 9 (noting that “if information about case dispositions and other key actions is not consistently entered, the resulting poor quality of data can lead to an incorrect understanding of prosecutorial actions”). Wayne McKenzie, Don Stemen, Derek Coursen, and Elizabeth Farid, Prosecution and Racial Justice: Using Data to Advance Fairness in Criminal Prosecution, Vera Institute of Justice (2009), at 5 (“In many jurisdictions information about arrest charges and custody status, for example, may be maintained by the sheriff, while pleas and sentencing are recorded by the court.”). Olsen et al., Collecting and Using Data, Appendix B, Question 41. McKenzie et al., Prosecution and Racial Justice, at 4 (emphasis added). Wisconsin District Attorney IT Program, www.dait.state.wi.us (“The PROTECT case management system was custom-­developed for Wisconsin district attorneys and is provided at no additional cost to DA Network offices. . . . This system provides comprehensive tracking of people and case information from the time a referral is received from law enforcement to final case disposition.”). Author interview with IT staff in Milwaukee District Attorney’s Office. The PROTECT system, however, can be revised to include additional reports requested by prosecutors’ offices. When included in an updated version of PROTECT, these reports are then available for all Wisconsin prosecutors’ offices to use. Lawrence et al., Prosecutor Priorities, at 7. (“A similar issue to data management involves how third-­party vendors, which create the software applications to manage and produce data, work with prosecutors’ offices. Workshop participants advised that some off-­the-­shelf data management software programs do not meet the needs of the prosecutor’s office and that working with the software vendor to tailor the product can be extremely difficult. Ideally, the vendors would work with prosecutors during the software’s development.”). Lawrence et al., Prosecutor Priorities, at 7. Lawrence et al., Prosecutor Priorities, at 7 (“More concerning to workshop participants were the terms and conditions of vendor contracts; existing contractual language often provides data ownership to the vendor and not the customer. The participants advised that it is important to be able to take custody of all data collected through the vendor’s software before the contract expires and to specify in a vendor contract that the prosecutor’s office owns the data at the end of the

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62 63 64 65 66

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contract term. This will ensure that the prosecutor’s office is not at risk of losing the data.”). Olsen et al., Collecting and Using Data, at 10. Olsen et al., Collecting and Using Data. Lawrence et al., Prosecutor Priorities, at 7. Lawrence et al., Collecting and Using Data. George Gascon created a data analysis unit in the San Francisco District Attorney’s Office in 2011, shortly after taking office, and launched DAStat in 2013, based on data collected and analyzed by his office. See https://sfdistrictattorney.org (“To measure our success in achieving SFDA’s goals, and to demonstrate the value of using data to ensure the fair and effective administration of justice, District Attorney Gascón created DA Stat in 2013.”). The San Diego County District Attorney’s Office has employed a crime analysis administrator since at least the early 2000s, when Bonnie Dumanis was the district attorney. See https://sfdistrictattorney.org. Cy Vance created the Crime Strategies Unit in the Manhattan District Attorney’s Office in 2010 to create a data-­drive approach to prosecution. See www. manhattanda.org (“In 2010, District Attorney Vance created the first-­ever Crime Strategies Unit (‘CSU’) to operationalize a more proactive, data-­driven approach to crime fighting. Under our intelligence-­driven prosecution model, prosecutors harness, analyze, and share intelligence in order to craft proactive strategies that address specific crime trends and target priority offenders.”). For the organizational chart of the Cook County State’s Attorney’s Office, see www.cookcountystatesattorney.org. The unit has created descriptive analyses of case processing in the office and a set of data stories examining specific issues. See https://data.philadao.com. Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, a partnership between Florida International University, Loyola University Chicago, and four prosecutor offices; for a project description and recent reports, see http://caj.fiu.edu/. Institute for State and Local Governance Data and Transparency Initiative; for a project description, see http://islg.cuny.edu. Prosecutorial Reform Initiative at the Public Safety Lab at New York University; for a project description, see https://publicsafetylab.org. Lawrence et al., Prosecutor Priorities, at 10 (“The participants advised that relationships that bring together researchers and prosecutors tend to work best when they are initiated and led by the prosecutor, although many offices struggle to make these relations or proactively reach out to potential partners.”). MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization. MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization.

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77 Martin De Saulles, What Exactly Is a Data-­Driven Organization? CIO (Oct. 28, 2019). 78 Besiki Kutateladze, Don Stemen, Ryan Meldrum, Rebecca Richardson, and Elizabeth Webster, Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside. (2018), Advancing Prosecutorial Effectiveness and Fairness Report Series, Florida International University and Loyola University Chicago. For a project description and recent reports, see http:// caj.fiu.edu. 79 Olsen et al., Collecting and Using Data, at 10 (“Some offices of all sizes note that their main concern about data-­driven decision making is the inability of data to capture elements critical to prosecutorial practice. Many note that data fails to tell the ‘whole story’—­excluding critical elements like the human aspect of a crime.”). 80 Olsen et al., Collecting and Using Data, at 10. 81 Kutateladze et al., Prosecutorial Attitudes, Perspectives, and Priorities. 82 Martin De Saulles, What Exactly Is a Data-­Driven Organization?. 83 Larry Krasner, remarks provided on the launch of the Philadelphia District Attorney’s online media center, The Justice Wire (2019), https://medium.com. 84 Miller and Wright, Prosecutorial Power, at 129. See id. at 135 (documenting that the database collected information for prosecutorial decisions from 1988 to 1999). 85 Philip Heyman and Carol Petrie (eds.), What’s Changing in Prosecution? 13 (2001). Committee on L aw and Justice, Division of Behavioral and Social Sciences and Education, National Research Council (describing the increased availability of technology and how “data on arrests, caseloads, and conviction rates can be developed and used for short-­and long-­term planning and resources allocation”). 86 Heyman and Petrie (eds.), What’s Changing in Prosecution?, at 13. 87 MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization, at 9. 88 See https://sfdistrictattorney.org. 89 See www.cookcountystatesattorney.org. 90 See https://data.philadao.com. The site provides a series of dashboards organized as a series of reports visualizing data about different stages of the criminal justice process and disaggregating the data by offense types and severity levels. 91 Philadelphia District Attorney’s Office, Diversion Is Up in Philadelphia, https:// medium.com (describing how diversion works and providing information on diversion rates between 2014 and 2019). 92 Philadelphia District Attorney’s Office, Inside the Incident–­Arrest–­Charge Funnel, https://medium.com (defining incidents, arrests, and charges and providing data on each from 2014 to 2019).

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93 Philadelphia District Attorney’s Office, Outlier Cases Explain Aggravated Assault “Not Guilty” Rates in Cases Taken to Trial, https://medium.com (explaining how a small number of cases affect overall not guilt rates at trial). 94 Larry Krasner, quoted in Philadelphia District Attorney’s Office Launches Public Data Tool, The Justice Wire (2019), https://medium.com. 95 American Civil Liberties Union, Smart Justice, Unlocking the Black B ox (proposing model legislation for the collection and dissemination of prosecutor data). 96 Connecticut Public Act No. 19–­59 (2019). 97 Marc Pelka and Kyle Baudoin (2020), “First Analysis of Prosecutor Data (PA 19-­ 59): 2020 Report to the Criminal Justice Commission,” https://portal.ct.gov. Marc Pelka, Kyle Baudoin, Kevin Neary, Maurice Reaves, Richard Colangelo Jr., and Robin Olsen (2021), “2021 Analysis of Prosecutor Data (PA 19-­59): Report to the Criminal Justice Commission,” https://portal.ct.gov. 98 The Cook County State’s Attorney’s Office (CCSAO) releases data through the Cook County Open Data Portal; see https://datacatalog.cookcountyil.gov The CCSAO notes: “A core component of the CCSAO’s commitment to data transparency under State’s Attorney Foxx is the regular release of case-­level datasets containing anonymized information about every felony case processed by the CCSAO (dating back to roughly 2010) . . . these datasets, containing tens of millions of data points and representing hundreds of thousands of distinct cases, provide an unobstructed view of the CCSAO’s work on behalf of the taxpayers of Cook County.” 99 See https://data.philadao.com. 100 See https://data.sfgov.org. 101 See www.cookcountystatesattorney.org. 102 Larry Krasner, quoted in Philadelphia District Attorney’s Office Launches Public Data Tool. 103 See https://hacking4justice.org. According to the Hacking 4 Justice website: “Hacking 4 Justice began in 2018 as a project of the Cook County State’s Attorney’s Office under State’s Attorney Kim Foxx. Today, we independently offer inclusive, positive training events that are open . . . to anyone in Cook County. Our trainings convene leaders from the SAO, experts from the data science field, and community members of all backgrounds to learn from each other, learn with each other, and build communities that are more self-­knowledgeable, more prosperous, and more just.” 104 See www.cookcountystatesattorney.org. 105 Larry Krasner, as quoted in Philadelphia District Attorney’s Office Launches Public Data Tool, The Justice Wire (2019), https://medium.com. 106 Olsen et al., Collecting and Using Data, 11. However, the report also notes the uneven collection of data across metrics. For example, while 74 percent of offices report collecting information on caseload size, only 13 percent collect information on case processing.

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107 Dillingham et al., Prosecution in the 21st Century: Goals, Objectives, and Performance Measures. The American Prosecutors Research Institute, for example, developed a set of prosecutorial performance measures centered on measuring prosecutor offices’ achievement of three goals of prosecution: promoting fair, impartial, and expeditious pursuit of justice; ensuring safer communities; and promoting integrity in the prosecution profession. The three goals articulated by the APRI include nine objectives or outcomes that gauge progress toward those goals. The objectives include holding offenders accountable, ensuring case dispositions appropriate for the offense and offender, ensuring timely and efficient administration of justice, improving service delivery for victims and witnesses, reducing crime, reducing fear of crime, ensuring competent and professional behavior, ensuring efficient and fiscally responsible management, and ensuring consistent and coordinated enforcement efforts. 108 Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project; for a project description and recent reports, see http://caj.fiu.edu. 109 Evan White and Alissa Skog, Partnering for Data-­D riven Prosecution in San Francisco, California Policy L ab (2019). 110 Press Release, Office of District Attorney George Gascon, June 12, 2019, https:// web.archive.org. 111 Manhattan District Attorney’s Office, Models for Innovation (2019), www.manhattanda.org (“Some of this unit’s earliest data projects included caseload activity reports, felony statistic summaries, court part readiness analysis. . . . Most significantly, by the end of 2010, Planning and Management created a comprehensive report that tracks the volume of arraignments, indictments, dispositions, pleas, trials, and dismissals. The initial report corroborated what the Office knew anecdotally about the 100,000 cases it handled each year: dismissals were high, trials were few, and oft-­adjourned cases were more likely to be dismissed. In addition to yearly statistical reports, Planning and Management created interactive ‘dashboards’ that provide real-­time information on all aspects of case processing. Such comprehensive analysis of the Office’s practice better informs prosecutorial decision-­making at the top management level and creates a baseline against which to compare future performance metrics.”). 112 Manhattan District Attorney’s Office, Models for Innovation. 113 John MacDonald and Steven Raphael, An Analysis of Racial and Ethnic Disparities in Case Dispositions and Sentencing Outcomes for Criminal Cases Presented to and Processed by the Office of the San Francisco District Attorney (2017) (finding racial and ethnic disparities in case acceptance, diversion, conviction and sentencing; however, the report also found that much of these disparities were the result of differences in case characteristics across racial/ethnic groups). 114 The Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project created four separate reports examining racial/ethnic disparities in each jurisdiction. These reports sought to go beyond prior disparity analyses

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by estimating the predicted likelihood of case outcomes by race, which accounted for racial/ethnic differences in underlying case characteristics. The analyses found few racial disparities in the four offices after controlling for case outcomes; the primary exceptions were around the use of diversion and the use of incarceration. Reports are at https://caj.fiu.edu. 115 McKenzie et al., Prosecution and Racial Justice. 116 McKenzie et al., Prosecution and Racial Justice. 117 Manhattan District Attorney’s Office, Models for Innovation, at 3. 118 Olsen et al., Collecting and Using Data, 11. 119 MIT Sloan Management Review, Lessons from Becoming a Data-­Driven Organization, at 9. 120 Andrew Guthrie Ferguson, Predictive Prosecution, 51 Wake Forest L. Rev. 705 (2016). 121 Chip Brown, The Data DA, N.Y. Times Magazine, Dec. 7, 2014. 122 Jennifer A. Tallon, Dana Kralstein, Erin J. Farley, and Michael Rempel, The Intelligence-­D riven Prosecution Model, Center for Court Innovation (2016). 123 Tallon et al., The Intelligence-­D riven Prosecution Model. 124 CompStat is a statistical summary of the week’s arrests, crime patterns, and significant cases operated by the New York Police Department. 125 Ferguson, Predictive Prosecution. 126 Ferguson, Predictive Prosecution.

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7

The Crucible of Progressive Prosecution Notes from the Field Kimberly M. Foxx

In the early morning hours of December 4, 1969, in Chicago, police raided the West Side home of Fred Hampton, leader of the Black Panther Party of Illinois. The police, detailed to the office of Cook County State’s Attorney Ed Hanrahan, were armed with a warrant signed by Hanrahan. Under cover of darkness, police unleashed a hail of bullets, killing both Fred Hampton as he lay in bed and fellow Black Panther Mark Clark. Dozens of bullet holes riddled the walls of the apartment. As daylight broke, authorities pushed a revised narrative through the media: the people in the apartment had fired on the police, leaving officers no choice but to return fire. According to the police and State’s Attorney Hanrahan, the shooting was a justifiable use of force. The Black Panther Party had been designated by local and federal law enforcement authorities as a danger to national security for advocating violence against police.1 J. Edgar Hoover, director of the Federal Bureau of Investigation, called the Black Panther Party “the greatest threat to internal security of the country.”2 Therefore, authorities insisted, it should have come as no surprise that the Panthers initiated the assault and the police had to defend themselves. Fast-­forward 45 years. In the late evening hours of October 22, 2014, Chicago Police Department police officer Jason Van Dyke shot and killed 17-­year-­old Laquan McDonald. McDonald was no stranger to the legal system. He had a long history of involvement with the child welfare and juvenile justice systems. On the night of his death, he was seen behaving erratically while walking the streets with a small pocket knife in his hand. Chicago police were called, and on scene they observed that McDonald appeared to be either intoxicated or in a state of psychosis. 252

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Several officers followed McDonald for blocks, keeping a distance while waiting for the arrival of a taser. After several minutes, officer Van Dyke arrived on the scene and, within seconds, fired 16 shots into McDonald’s body as McDonald was walking away. Van Dyke fired at least eight of those shots while McDonald lay on the ground. Minutes after the shooting, a Fraternal Order of Police (FOP) spokesperson appeared before reporters announcing that the shooting was justified.3 Dash-­cam video would later disprove that account. The Cook County state’s attorney at the time, Anita Alvarez, fought the release of the footage and delayed filing charges against Van Dyke for almost 13 months. There is, of course, a through line from law enforcement–­involved shootings in 1969 to those that took place 45 years later. Following the police killings of Fred Hampton, Mark Clark, and Laquan McDonald, widespread outrage swelled within in the Black community. There were protests, marches, and calls to the incumbent elected prosecutors to hold the officers accountable. Ed Hanrahan and Anita Alvarez nimbly sidestepped calls for their resignations, in spite of evidence that police had lied about the events of the murders and that each chief prosecutor had been complicit in the attempted cover-­up of police actions. Hanrahan would eventually seek reelection in 1972, and despite the Democratic Party’s refusal to endorse his candidacy, he went on to secure the nomination for Cook County state’s attorney. As a result, a coalition of Black, Latino, and progressive white voters coalesced around the Republican candidate, Bernard Carey, who eventually won the general election. In 2016, Alvarez would go on to lose the Democratic primary by 30 points to the author of this article, fueled by a similar coalition of voters demanding that the Cook County State’s Attorney Office address police accountability and racial injustice within the criminal legal system. The office of the prosecutor in Cook County had too often operated as a mechanism of control over marginalized communities. Many prosecutors and police officers viewed themselves as a line of defense standing between peace and chaos. Whether the prosecutor’s office was used to suppress the Black Liberation movement of the 1960s, or was complicit in the cover-­up of the state-­sanctioned murder of a Black teen, it wielded tremendous power, especially in communities of color. Given the antagonism between the Cook County prosecutor’s office and Black and Latinx communities, it is perhaps unsurprising that members of those

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affected communities were not afforded the opportunity to serve in the position of chief prosecutor. Forty-­seven years after the murder of Fred Hampton and Mark Clark, and two years after the murder of Laquan McDonald, I was sworn into office on December 1, 2016. I assumed office at a time that felt to many eerily reminiscent of the late 1960s in Chicago, divided by racial tensions and strife. The Black community in Chicago was understandably angry, distrustful, and resentful of a criminal legal system that allowed the murder, and its attempted cover-­up, of a 17-­year-­old boy. Decades of systemic racial injustices that left neighborhoods ravaged by violence and the local jail brimming with young Black men and women had taken a heavy toll. The Black community was exhausted. My election proved to be historic. I was the first African American elected to the position of Cook County state’s attorney, although I was not the first Black person to serve in the role. Cecil Partee was appointed as the state’s attorney in 1989, after then–­State’s Attorney Richard J. Daley was elected to serve as mayor of the city of Chicago. Partee was the first African American to hold the position and ran the following year, hoping to serve a full term. Even though Partee was the Democratic nominee in a county that votes overwhelmingly for Democrats, he was defeated by Republican candidate Michael O’Malley. Partee served for only 19 months, and his defeat was wildly unexpected. No Republican had won the seat since Bernard Carey in 1972. In addition to being the first African American elected to the role, I was also the first Black woman to hold the seat. In fact, I was only the second woman, after my predecessor, to preside over the office in the county’s history. I ran for office on a platform that diverged dramatically from those who previously vied for the job. Traditionally, prosecutor elections had been defined and driven by candidates vowing to be tough on crime. Countywide races generally have two distinct demographics: city and suburbs. Conventional prosecutor campaigns had relied heavily on appealing to suburban whites in communities with lower crime rates and on offering harsh punishment for those who committed crimes in urban centers. Candidates for the prosecutor’s office would essentially promise to cordon off areas perceived as crime-­ridden and to police the boundaries to ensure that urban criminals would not encroach on affluent suburban enclaves.

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Cook County was no different. The demographics of Cook County reveal that it is about 25 percent Black, 24 percent Latinx, 44 percent White, and 6 percent Asian.4 In 2016, the average daily population of Cook County Jail was 70 percent Black, 16 percent Latinx, 10 percent White, and 4 percent Asian. Additionally, 2016 had proven to be one of the most violent years in almost two decades in Chicago, with more than 760 homicides and 4,000 shooting victims.5 The overwhelming majority of homicide and shooting victims were young Black men. My platform was geared toward those who were most directly impacted by the criminal legal system: end users. Instead of targeting constituencies that were likely to have little to no contact with the criminal legal system, I focused my attention on those who did. I ran on a platform that highlighted the need to address bail reform, the school-­to-­ prison pipeline, and police accountability. My campaign promised to focus on the root causes of violence in communities of color: systemic and structural racism in housing, education, health care, and economic disinvestment. Rather than adhering to a strategy that tapped into the fears of white suburbanites, I sought to reframe the justice narrative around those who knew all too well the consequences of systemic racism and its foundation in the criminal legal system. This issue-­framing was deeply personal to me. Much like my target audience, I also was painfully aware of how poor Black and Latinx communities have been plagued by violence and systems that do little to prevent violence and, instead, overcompensate with punitiveness.

Taking the Unexpected Path I am a daughter of the projects. I grew up in Cabrini Green, the public housing projects that had gained unwanted notoriety in the 1970s and 1980s. My mother was 17 when she gave birth to my older brother, and 18 when I came along 13 months later. She dropped out of high school shortly after I was born. My father, meanwhile, was accepted into college and left my mother to care for us alone. My mother was a survivor of sexual abuse and years later would be diagnosed with bipolar disorder. She smoked marijuana regularly and, occasionally, sold it to make ends meet. After my father’s departure, my mother became involved in a long-­term relationship with a man who was exceptionally violent toward

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her. He would physically beat and berate her in front of my brother and me. As with so many other Black men of his generation he had served the country in Vietnam for a couple of years, but the demons of war had followed him home. As a family, we survived on the welfare assistance we received from the government. And my mother worked a number of part-­time jobs to supplement the little assistance we received. While living in Cabrini, I witnessed firsthand the tolls of gun violence. An eight-­year-­old girl with whom I played jump rope had been shot in the stomach while playing outside. I vividly recall her showing me her wound when she had finally healed enough to play again. My older cousin was a member of one of the local gangs. He was shot eight times but miraculously survived. We tend to assume that people in marginalized communities are one-­dimensional. But my experience belied that assumption. It was not unusual to know people who perpetrated sinister acts of violence and who could also be profoundly kind and generous. My mother’s boyfriend, who viciously beat her, saved my life when I nearly drowned in a neighborhood pool. The local drug dealer brought food for the elders during the holidays and provided protection for them as they made their way to church services. I am the survivor of years of sexual abuse at the hands of an older relative, and I survived a violent sexual assault by two older boys when I was seven. I share that trauma with almost 60 percent of the girls who are under control of our juvenile justice system. It has been well-­ documented that the majority of girls and women who encounter the criminal legal system have endured childhood sexual abuse or witnessed violence within their homes.6 The results of untreated trauma have long-­ lasting impacts on brain development and responses to stress.7 But we still ignore the trauma that far too many girls of color experience. I had not always envisioned being a prosecutor. I had wanted to be a lawyer since the age of six after accompanying my mother to court in her effort to get my father to pay child support. My mother was anxious and emotional as we entered the courtroom, and I vicariously felt her anxiety. There was a well-­dressed Black woman who greeted her and rubbed her arm as she walked my mom through the process. My mother explained that the woman was a lawyer and that her job was to make sure my dad did the right thing. The lawyer put my mother at ease—­and my brother and me as well. In that moment, I declared that I wanted

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to be a lawyer. I wanted to be in a role that helped people such as my mom. Moments later, the judge, wearing a flowing black robe, entered the courtroom, and we were instructed to rise. I stood in awe of the pomp and circumstance of it all. I immediately amended my declaration about being a lawyer. I wanted to be a judge—­I liked the idea of helping people and having people stand up when I entered a room. My mother laughingly reminded me that I needed to be a lawyer first, and she declared “so it shall be.” Upon graduating from law school, my aspirations were infinitely more practical: I wanted to pay off student loan debt and to lift my family from poverty. While my heart was rooted in public interest law, my financial outlook led me to insurance defense litigation. I represented an insurance carrier in workers’ compensation disputes. The work was uninspiring, and I lasted only nine months. I then took a job at the Public Guardian’s Office, representing children in the foster care system. My clients’ lives mirrored my own childhood experiences. I was confronted by the reality that many of these children did not need to be in foster care at all. Instead, their families needed the same supports that my family had needed. It became clear that the institutions that were charged with protecting the interests of children were often causing harm in the name of “doing justice.” The power to petition the court to remove children from their homes rested in the prosecutor’s office. Prosecutors were the ultimate gatekeepers, and all of the other stakeholders—­defense lawyers, guardians ad litem, and judges—­responded to their actions. I had many friends who worked for the Cook County Public Defender, and I viewed their role as holding prosecutors accountable. While I agreed that a strong and effective defense bar was essential in the criminal legal system, I could see quite clearly that one does not need a defense attorney unless a prosecutor has moved to prosecute you. I took the position that the power of prosecutorial discretion was not one that should be ceded to those who had no connection to the communities impacted by their policies. While the Public Defender and Public Guardian’s offices were racially diverse, the prosecutor’s office was not. It lacked not only racial diversity but also diversity of life experiences. I moved to work as an assistant state’s attorney (ASA) in the Cook County office after having spent three years working for the Public Guardian’s office. I had grown frustrated

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by a practice that could only react to policy decisions, rather than being positioned to exercise the discretion to stop harmful decisions at the outset. As a line prosecutor, I had that power. I soon learned that my discretionary power was greatest when I chose not to prosecute a case. The decision not to file a charge meant that the mighty mechanisms of the legal bureaucracy would not churn for that individual. Put simply, that individual would not face the consequences that flowed from justice-­involvement. What became abundantly clear was that, as a line assistant, my decisions affected the individual case; however, the policies of the office—­which often contradicted my personal views on justice—­ had a far greater impact than my individualized case-­by-­case approach. All told, these experiences combined to make me uniquely qualified to hold the position of top prosecutor. Having legal knowledge and acumen are critical but represent only one aspect of this work. A keen understanding of the rich complexities of the communities we serve and of the role that law enforcement plays in exacerbating existing issues has often been a missing dimension in chief prosecutors. The reality was that I had more in common with those who came in contact with the legal systems than with many of the lawyers who worked in the prosecutor’s office. It was also undeniable that my experiences diverged appreciably from those of the white men who occupied the seat for decades. For these reasons, my victory was celebrated in the Black community. But those precise reasons would put me at odds with some members of my office, especially with law enforcement partners. From the start, I was met with extreme skepticism by leadership of the Fraternal Order of Police (the powerful police union) and others in law enforcement.

Refusing to Be Cowed by the Backlash Chief prosecutors have historically been male and white. In 2015, of the 2,400 elected prosecutors in the United States, 79 percent were white men, 16 percent were white women, 4 percent were men of color, and less than 1 percent were women of color.8 I often joked that being a Black woman chief prosecutor was like being the “chief unicorn.” At the time I was sworn into office, I was the only African American state’s attorney in the entire state of Illinois. Immediately upon taking office, I encountered resistance. The local chapter of the FOP began a campaign to undermine

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my credibility. The whisper campaign began with allegations that I was a criminal sympathizer because my family came from public housing. A heavily read police blog dubbed me “Crimesha” in their postings, a racist moniker meant to suggest that I was “soft on crime.” My last name was intentionally misspelled with an extra “X”—­to label me as triple X—­in an explicit nod to the well-­worn trope of the hypersexual Black woman. On one occasion early in my tenure, a suburban police chief, in responding to a policy decision my office had proposed, neglected to remove me from an email chain in which he referred to me as a “cunt.” I was initially taken aback by the brazenness of the racism, misogyny, and disrespect among my colleagues. To be clear, I knew that, as a woman—­and especially as a Black woman—­my mere presence in the boys’ club was disruptive. I further knew that my deliberate focus on the issue of systemic racism in policing and prosecution would further set me at odds with my colleagues and with some members of law enforcement. I was, however, unprepared for the utter vulgarity and blatant nature of the attacks from professionals I worked with directly. These attacks were coming from people with whom I had to sit at a table to do the work. Their comments were not dog whistles. They were loud bullhorns amplifying racist and misogynistic rhetoric. Even more deafening—­and soul-­crushing—­was the complicit silence of my white male peers. The media completed the circle of backlash. Those who covered crime and politics were fully aware of the role of gender and race in these attacks, but rather than calling out the behavior, members of the media appeared to revel in the tensions. The sad reality was that having witnessed these types of attacks on my fellow Black women prosecutors, I was not surprised by the viciousness of the assault against me. In 2017, Osceola County State Attorney Aramis Ayala received a noose in the mail after her stated refusal to pursue the death penalty in her office.9 Baltimore City State’s Attorney Marilyn Mosby was the subject of numerous death threats after she charged several police officers in the death of Freddie Gray.10 St. Louis City Attorney Kim Gardner has been targeted by St. Louis’s police union with racist and sexist taunts, with the head of the union calling for her removal “by any means necessary.”11 To cope and to provide moral support, my fellow Black women prosecutors and I formed our own sorority. Many of us were “firsts” and, much like other pioneering figures, endured the

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backlash from those who were unwilling to accept new norms. We often found ourselves sharing the hate-­filled mail, voice mails, and social media posts that took aim at our identities. Our colleagues who were male and white were not only spared the ferocious attacks that were all too common for us; they were often celebrated for doing the same work that we had done. After Aramis was vilified and threatened for her stance on the death penalty, Philadelphia District Attorney Larry Krasner pledged on the campaign trail to decline to pursue capital punishment. He was heralded by the political left as being a leader on the issue, despite the well-­documented stance by—­ and subsequent attacks on—­Aramis. While Krasner was also criticized from the right, the attacks centered on the policy issue, not his character. At a conference for progressive prosecutors, there was a discussion about addressing systemic racism and white privilege with staff. To his credit, King County Prosecuting Attorney Dan Satterberg shared that he had insisted that his staff attend a viewing of Ava DuVerney’s film 13th. By and large, his staff warmly received the film, and he recommended that others in our group share the film as well. One of our Black women colleagues disclosed that she, too, shared the film with her staff and was promptly accused of promoting a “Black agenda with a Black propaganda film.” Another Black male colleague, another “first” in his role, indicated that he would never be able to “get away with” sharing the film with his predominately white staff. The conversation led to an emotionally candid dialogue among the group of progressive prosecutors about the double standards that existed for white and nonwhite reform-­ minded prosecutors. That robust discussion made painfully clear to all in attendance that Black prosecutors bear an additional burden that their white counterparts were privileged to be unaware existed. That discussion opened eyes. Away from the shelter of conferences, the virulent opposition was in full swing. In the wake of my office dismissing charges in a controversial case involving a Black celebrity who was accused of filing a false police report,12 the racist vitriol intensified. I received countless calls, emails, and letters calling me a “nigger,” “monkey,” “bitch,” and “whore.” The attacks were so rampant and vicious, I had to reassign the receptionist who answered our main phone line because of the trauma she endured listening to the vile threats.

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On April 1, 2019, there was a rally organized by the Fraternal Order of Police outside my office. The organizers planned the event as an effort to have me removed from office. More than a hundred members of the union were joined by members of various white supremacist groups calling for my ouster.13 Days later, the FOP held a press conference during which it issued a vote of “no confidence” in my leadership. The head of the FOP was joined by 40 suburban police chiefs—­all male, all white. Their contention was that I was not fit for service because of the implementation of office policies that, they insisted, allowed “criminals to go free.” The offending policies they enumerated were: the vacating of convictions that were based on the testimony of a discredited detective; the refusal to prosecute low-­level marijuana cases; the refusal to prosecute people for driving on a suspended license if the suspension was based on failure to pay tickets or fines; the refusal to prosecute low-­level retail theft as a felony; and the efforts to reduce the reliance on cash bail.14 It was abundantly clear that these pressure tactics were intended to discredit me as a policy maker and to subvert my reform policies. It came as no surprise that these particular reform initiatives were the subject of the FOP’s ire. These prosecutions were, in essence, the bread and butter of policing. Arresting people for smoking marijuana or driving on suspended licenses did not require any extra effort to catch bad guys. These arrests largely occurred following vehicle stops, which disproportionately impacted Black drivers. An Illinois ACLU report found that traffic stops in Chicago rose from 85,965 in 2015 to a whopping 489,000 in 2018. Drivers of color represented the overwhelming majority of these stops, totaling 421,500.15 Many of these stops resulted in arrests for marijuana possession and driving on a suspended license. Further, these arrests largely affected financially strapped drivers. For example, drivers charged with driving on suspended licenses typically had had their licenses suspended for failure to pay fines and fees. These fines ranged from $100 to more than $1,000. Many of these drivers would appear in traffic court, where a judge would find that they were indigent. Yet the court would still suspend their licenses until they paid their debt. The cruel irony of such laws was that it created a vicious cycle. Taking away someone’s driver’s license inhibited their ability to get to work. If unable to work, these drivers would be unable to pay their tickets.

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If unable to pay their tickets, they would be unable to get their license returned—­and round and round we go. In essence, my attorneys had evolved into glorified bill collectors rather than advocates for justice. But the policy choice that I adopted—­refusing to prosecute people for driving on a suspended license if the suspension was based on failure to pay tickets or fines—­angered police. These stops would no longer count toward their arrest incentives because the cases would not be prosecuted in court. The eagerness to arrest for low-­level offenses wholly ignored the pressing problem of violence in our streets. As mentioned above, in 2016 Chicago experienced its bloodiest year in almost two decades. More than 760 people were murdered, and more than 4,000 people were shot. As Chicago struggled under the weight of gun violence and as children died in our streets, the homicide clearance rate was abysmally low. In 2017, the Chicago Police Department solved 114 of the 650 murders that occurred that year, an astonishingly low clearance rate.16 Even more dismal, police identified suspects in less than 5 percent of shootings in which the victim survived. Despite such grim statistics, Chicago police referred more shoplifting and drug cases to my office than crimes of violence. I could not justify using our limited resources targeting low-­level shoplifters and people with substance use disorder than those engaged in violence. As a result, I instituted a policy to raise the felony threshold for shoplifting from $300 to $1,000, then diverted resources to create the Gun Crimes Strategies Unit. Illinois has one of the lowest dollar amounts in the country as the basis for charging an act of theft as a felony rather than as a misdemeanor. Our more conservative neighbors in Indiana, Iowa, and Wisconsin all have threshold amounts that are much higher than in Illinois, and their violent crime rates have been significantly lower. As a result of the shift in policy, rather than having people who stole less than a $1,000 tried in felony court, these cases were tried as misdemeanors. The FOP was outraged, suggesting that I was granting criminals an undeserved pass. Once again, the incentive structures with the police department were at odds with the justice reform efforts I intended to implement. Shoplifting arrests had accounted for a significant portion of annual felony arrests, and by not prosecuting those arrests, officers’ incentive structures and pay would suffer.

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The challenges of being a Black prosecutor were not unique to me or the other Black women who held these positions. Black men have also had a fraught relationship within the profession. The Cook County State’s Attorneys Office hit its peak in the early 2000s, employing almost 950 attorneys. However, the representation of Black men in prosecutors’ offices has always been reprehensibly small. For almost a decade, there was only one Black man who was assigned as a “first chair” (the lead prosecutor in the courtroom) at our main criminal courthouse. First chairs are responsible for handling the most serious cases, training junior attorneys, and approving plea and sentencing agreements. The criminal division is the largest division in our office, boasting more than 400 attorneys. Felony cases ranging from drug possession to first-­degree murder, and all matters in between, are litigated in the criminal division. Throughout much of the office’s history, there were no Black male supervisors within the criminal division. Black men traditionally stayed with the office for half as long as their white male counterparts. This poor track record remained a constant source of contention with the Cook County Board of Commissioners, which decried the lack of diversity within the staff ranks. Previous state’s attorneys for Cook County defended the rigor of their efforts to retain Black men in the office. They claimed that their hard work failed because of the unique challenges that Black attorneys faced in staying with the office. State’s attorneys insisted that the main obstacle to retention was the salary, given the sometimes crippling student loan obligations owed by young attorneys. The prevailing theory was that Black men joined the office immediately after law school and would leave after five or six years as they prepared to start families. Many of these men carried the burden of student loans, which had been in forbearance as they started their careers. As the financial obligation to repay that debt came due, it necessitated a move to a higher salary position—­one that could not be offered by our office. The lack of Black male supervisors was chalked up to the fact that the talent pipeline was short, given the drop-­off of attorneys, which then created an experience gap. This popular theory, however, failed to reconcile that many white assistant state’s attorneys had similar financial constraints yet somehow managed to stay with the office. It is often easier to blame the individual rather than owning up to the systemic issues for which we are responsible.

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As important, the theory that economic circumstances explained our leaky pipeline also ignored the realities of being Black within the culture of a prosecutor’s office. One Black lawyer’s story was especially disturbing. Upon taking office, I was confronted with reviewing a settlement in a wrongful conviction case. The case involved four Black teenage boys who were charged and convicted for the murder of a young woman. The evidence in the case largely rested on the confession of one of the teens implicating himself and three others. However, the confession was later determined to have been coerced by police and prosecutors. The convictions were overturned, and the teens sued the police and prosecutors for compensation for malicious prosecution. They were seeking a multimillion-­dollar settlement, and my office was representing the county in the negotiations. I personally reviewed the file, as the proposed settlement would potentially be the largest amount for a wrongful conviction case in our county. Contained in the file was an interview with the prosecutor who had obtained the confession from one of the teens. The prosecutor had been interviewed by the FBI regarding alleged misconduct, and he shared with them his role in obtaining the confession. It was jarring. He began by sharing his experience as a Black man working in the felony review unit. He described police detectives questioning his ability to do the work. They wondered aloud if a Black man had what it took to prosecute other Black men. He described feeling as though he was constantly being judged by detectives and feeling compelled to prove that, despite being Black, he was capable of being a tough prosecutor. He spoke of the racist language the officers used in his presence—­almost daring him to challenge them. He talked about the unrelenting pressure to prove himself worthy and acceptable to those in law enforcement who rejected him. He would go on to admit to working with detectives to feed a false confession to one of the boys, ultimately leading to the wrongful conviction. I was haunted by this disclosure—­not only the admission of framing a teen for murder but also the painful recitation of his experience as a Black person within the office. His experience mirrored mine. Although I did not lose my way or moral compass, it was a continual struggle to stay true to a more progressive vision of the role. As a young prosecutor, I also had been openly challenged by hostile detectives when I declined

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to file charges. I sat in police districts where detectives freely called suspects “animals,” “savages,” and “human waste.” Once, I observed a cartoon depicting President Barack Obama in African garb carrying a spear, with the caption “Barry Hussein Obama,” pinned on the cubicle of a detective. And on those occasions when I declined to file charges, I was called in by supervisors within the unit who questioned my commitment to the work. I was shaken by the reality that these experiences dealing with law enforcement and the impact it had on ASAs of color were not isolated. The culture of the office was to keep your head down, do the work, and not make waves. This ethos allowed the office to be complicit in these practices. The credibility of our law enforcement partners was impacted—­ and so was ours by casually accepting this culture. If these officers were comfortable using racist language and intimidation tactics on ASAs, then I feared what was happening in the community. Confronting this toxic culture was a top priority as I entered my term. Upon taking office, I created three new positions within the office to address these concerns: the chief ethics officer (CEO), the equal employment opportunity officer (EEO), and the chief diversity officer (CDO). The ethics officer’s role is to serve as a confidential resource, providing information regarding those within the office, law enforcement, and the judiciary whose conduct may breach ethical standards. Given my experiences, it was important that our staff had a place where they could report such behavior, and it was equally important to hold those engaged in the behavior accountable. The CEO conducted trainings within each of the bureaus on reporting misconduct. Initially, ASAs were hesitant to engage with the ethics officer out of fear of reprisal, and she went the first three months without a single complaint. However, after an ASA reported an officer who had engaged in sexually inappropriate banter, and that officer was later reprimanded, complaints began to pour in. They needed to “see to believe” that our office would, in fact, take these incidences seriously before they felt comfortable engaging. In fact, as a result of these efforts, a judge was suspended from the bench, and several officers were disciplined because of their reported conduct. While we could not change the culture within the law enforcement communities, our goal was to call it out and no longer to be complicit.

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The equal employment opportunity officer’s role is to ensure that ASAs have a resource to address issues of racial, gender, sexual, and disability discrimination within the office. The EEO’s task includes examining our hiring and promotions practices to determine whether there are barriers to advancement for any group. She conducts regular trainings focused on diversity and inclusion. She also conducts internal investigations regarding allegations of discrimination. The chief diversity officer is charged with ensuring that the office is recruiting, promoting, and retaining diverse talent. She is responsible for maintaining data regarding diversity for internal use and for sharing it with the public. The CDO was immediately tasked with addressing the racial gap of Black men within the office. She developed a recruitment strategy that targeted law schools at historically Black colleges and universities (HBCUs). Previously, the office eschewed recruitment events at HBCUs. A former hiring officer had insisted—­incorrectly—­that there was no point in directing resources there because “Blacks want to be public defenders, not prosecutors.” In the first hiring class of my administration, we increased hiring of Black men by 50 percent, with more than half of them coming from HBCUs. To address the issue of retention and promotion of marginalized groups, she created the office’s first Employee Resource Groups (ERGs). The ERGs were designed to provide a forum where diverse talent within the office could come together to address their collective needs and engage with the executive team on issues unique to their experiences within the office. There are five ERGs: African American, Latinx, Women, LGBTQ, and Asian. The ERGs have been empowered to create programming and initiatives aimed at highlighting concerns within office culture as well their communities.

Prosecuting in This Moment: The Aftermath of George Floyd’s Death In the days following the horrific execution of George Floyd, I gathered the Black ASAs for a virtual meeting to discuss the killing and its impact on our work. Seventy assistant state’s attorneys joined the call. They were a mix of young and veteran prosecutors, some who had only been in the office for a few weeks, others for decades. Before I even began speaking, I could see tears in the eyes of one of my veteran male ASAs. I

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shared with them that I had been broken by the image of the knee in George Floyd’s neck. And the experience felt like déjà vu. I recounted being in the office after the acquittal of George Zimmerman for killing Trayvon Martin and being enraged by the responses of some of my white colleagues. I recalled seeing the social media posts of coworkers that horrified me as they celebrated the not-­guilty verdict. I shared that I had secreted away in offices with my Black colleagues to vent and cry. Now, as the head of the office and as a Black woman, I knew that they were hurting, and I wanted to create a safe space for them to be fully present in the moment. One by one, they told their stories. A young woman assigned to the felony review unit told me she was questioning whether being a prosecutor was a betrayal of her community. She described the unnervingly familiar stories of detectives challenging her in addition to fears for her own safety when she refused to bring charges against individuals they had arrested. Others nodded in sad agreement as they began describing their own experiences of working within a system that they believed was working against them. One woman found the courage to share that she had been stopped by police days earlier as she was heading to work. She had told the officer that she was a prosecutor on her way into the office. He looked at her and said: “A prosecutor? You’re not going to do shit.” An older Black woman broke down in tears as she described her constant fear that her son might die at the hands of police. Her apprehension was not abstract, only informed by distant media accounts. Her very real fear grew out of her own experiences as an assistant state’s attorney working with law enforcement. Soon the floodgates opened, and the stories spilled out. For more than an hour, they painfully recounted their experiences of being Black and being part of a system undeniably rooted in racism. Many questioned whether their presence in the office was an act of complicity in promoting a racist system. Others rejected that view, contending that their presence was necessary to reform the system and to hold it accountable. However, we were all aware that as individuals there was only so much we could do in a system that by its very design is broken. In the days following our meeting, the head of the African American ERG organized a retreat for our Black staff facilitated by a wellness practitioner. We needed an outlet to process our identities as prosecutors

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and our identities as Black people. The cognitive dissonance of holding both these traits simultaneously was never going to dissipate. The truth was that we had signed up for these roles knowing the failings of the system. But, to a person, we held on to the belief that our presence could and should make a difference. The chronic problems that the George Floyd killing revealed and exemplified have predated our existence, but as prosecutors we committed to work to dismantle the racism embedded within the criminal legal system. Once again, we had to face the reality that this fight would be a lifelong endeavor. While the murders of George Floyd, Breonna Taylor, Rekia Boyd, and Laquan McDonald are high-­profile instances of a failed system, we know that we must fight to stop the daily indignities of a system that crushes thousands of people whose names are unknown to most. We have doubled down on our commitment to confront the issue of race head-­on by being transparent and being intentional about our roles in the system. It also means being committed to our social emotional well-­being as we navigate these issues. The African American and Latinx ERGs have established monthly roundtables to discuss topics related to prosecution and race and have invited the entire office to attend. Our ERGs have also organized a book club tackling race and prosecution, facilitated by ASAs and community members. The first book was Between the World and Me by Ta-­Nehisi Coates. To the encouragement of many within the office, more than 400 employees participated in the discussion.

Walking the Talk: Developing a Shared Mission, Vision, and Values Inheriting an office that had a fraught history with the communities of color it was expected to serve required that I articulate a clear mission, vision, and values statement both internally and externally. Having worked in the office for a dozen years prior to becoming the chief prosecutor, I knew the office had no clear mission. Our success was determined by the number of convictions we notched. Promotions and advancement were directly tied to convictions earned. These conventional metrics created a perverse incentive structure that positioned justice as secondary to victory. The work became more about sport

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rather than advocacy on behalf of communities. This raised particular concerns as I examined the messages, both explicit and implicit, that we were sending our newest ASAs as they looked to rise through the office. Their success was not tied to issues of justice that mattered. Let me give one example. ASAs often engaged in plea or sentencing negotiations without any knowledge of the collateral consequences of a conviction. Direct consequences of a conviction are the actual sentence, fines, or punishment that the court imposes. Collateral consequences, sometimes referred to as the “secret sentence,” are less apparent but are nonetheless real: the consequences that occur because a person has been convicted of a crime. Collateral consequences may include deportation, public housing exclusions, loss of voting rights, and licensing bars. The culture of success in the office did not value the competence and skill in understanding the collateral consequences or the broader implications of a sentence in arriving at a just outcome in a given case. In fact, the conventional incentives did not encourage ASAs even to seek alternatives to traditional prosecution. Engaging the formal system and obtaining a conviction was all that we prized. Understanding and pursuing alternatives was perceived not only as extra work but also as unnecessary. If I expected reform, I needed to begin to create a shared vision that centered justice and just outcomes in all that we did. Therefore, I brought in a consulting firm to lead the effort of creating a mission, vision, and values statement. Focus groups were convened among the staff to assess their understanding of the role of the prosecutor. The responses were quite telling. As part of the process, we engaged the staff with a survey to gauge their beliefs on the role of prosecutors. Unsurprisingly, the overwhelming majority of respondents reported that “fighting for victims” was their top concern. When asked about cases in which there was no victim, respondents indicated that they wanted to keep communities safe. Additionally, we asked our ASAs how often they engaged in or traveled to those communities impacted by violence. The results were stark: Most respondents had little to no engagement in those communities, and most did not believe it was necessary to engage in the community to be an effective prosecutor. It had become clear to me that the existing incentive structure for our ASAs limited their perspective on the role of the prosecutor. Prosecutors

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were looking at one case, one victim, and one outcome at a time. They were not encouraged to look at the broader impact of those prosecutions on communities as a whole. For example, in examining drug prosecutions, we found that neighborhoods in predominately Black communities had high concentrations of convictions. There was no dispute that there was a thriving drug trade in many of those areas; however, the prosecutions were largely focused on drug users, many of whom had multiple convictions for possession. Those same communities had largely been divested of economic resources, and crime rates had remained fairly consistent for almost a decade. However, our office prosecuted these cases in the “interest of keeping communities safe” despite evidence to the contrary. The purpose of the mission, vision, and values exercise was to take a broader view of the role of the prosecutor and how we defined “safety.” Our drug possession prosecutions were not in the interest of public safety; instead, they exacerbated the collateral consequences of the failed War on Drugs. Therefore, I instituted a policy to stop prosecuting most possession cases. I also disbanded the narcotics bureau, which was tasked with long-­term drug investigations. Surprisingly, the move was met with relief by many veteran prosecutors, who had seen many of the same defendants cycle through the system year after year, still struggling with addiction. They recognized that, on every drug corner we cleared, another group would soon take up residence. Quite simply, supply and demand drove the illicit drug market. The demand in many of the communities remained high because there were no resources to treat addiction. Our veteran ASAs had resigned themselves to the fact that they were merely “case processors” rather than advocates for justice. Even the most hardened prosecutors complained that spending office capital prosecuting people who were clearly addicted was a waste of time and resources. But in the process of coalescing around our mission statement—­healthy communities are safer communities—­we began to make different choices about how we addressed drug involvement. Our mission led us to halt drug possession prosecutions. The intense focus on mission, vision, and values also led us to a better understanding of our role as prosecutors and helped to center the office’s focus on being more than just a conviction-­generating entity. Our mission is to do justice in the pursuit of thriving, healthy, and safe com-

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munities. Our vision makes clear that we are committed to creating a safer, stronger Cook County. That means approaching every case with integrity, demanding accountability, and increasing our presence in the community. Our success is not measured in convictions. We believe in doing what is right. This means fighting for the best, fairest outcomes, whatever form they take. It is our responsibility to address the historic inequities in our justice system. Everyone deserves a fair shot at justice, regardless of their zip code, paycheck, or skin color. And the values that we embrace are integrity, fairness, accountability, respect, and collaboration. Ensuring that we were adhering to our new mission, vision, and values meant that we had to incorporate them in all aspects of our work. The first order of business was to change our performance evaluation tool. As I mentioned, traditionally, the ASAs’ performance was evaluated largely on the number of convictions they secured. This approach incentivized convictions over just outcomes. Positioned at the top of the office’s new evaluation tool are our mission, vision, and values statements—­w ith an explanation that the tool seeks to measure each ASA’s adherence to these ideals. We removed from the tool the question of numbers of trials completed or convictions secured. We have now included a narrative section that provides an opportunity for ASAs to document when they have used their judgment to seek creative alternatives to traditional prosecution, or where they have chosen to exercise their discretion to receive just outcomes—­including the dismissal of cases. There is a “community engagement” metric by which ASAs document their activities within the community. We created a menu of countywide volunteer opportunities to provide ample opportunities to participate. Such activities include participating in neighborhood forums, assisting at domestic violence shelters, and mentoring youth in the communities in which the ASAs are assigned. Community engagement is weighted the same on the evaluation tool as trial skills, judgment, work habits, and ethics. Additionally, we created a biweekly newsletter that highlights the volunteerism done throughout the office. This newsletter stands in contrast to the newsletter of the previous administrations, which highlighted convictions and number of years secured at sentencing as accomplishments to be celebrated by the office.

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In addition to changing the performance evaluation tool, we changed our promotion protocols. Previously, promotions were not posted and happened under the cloak of secrecy. Promotion opportunities are posted, and the minimum requirements include providing documentation of community involvement. Supervisors are now trained on how to integrate the mission, vision, and values in their development of junior ASAs. The chiefs of our various bureaus are required to report quarterly on their efforts to promote community engagement. Our focus on mission, vision, and values requires that we are reflective about the labels we assign to those with whom we work. Nowhere is that more evident than in our approach to victims. During the first week of my tenure, I attended a training session for interns within the office. The topic was “Introducing Ballistics Evidence at Trial.” The presenter was a veteran prosecutor and the go-­to firearms expert in the criminal bureau. He presented several slides on the mechanics of firearms and, in an effort to sustain the attention of his audience, showed a picture of a mortally wounded Latino teen laying on the ground. As he introduced the slide, he described the teen as a “gang victim.” He went on to describe the injuries the boy sustained and the technical aspects of the weapon used. I, however, could not get past the description of “gang victim.” I interrupted the presentation and walked to front of the room and posed a question to the group. “How many of you think we treat ‘gang victims’ differently from ‘innocent victims’?” To my horror, many students raised their hands, while others sat unsure. I asked one of the students who was interning in our gang division why she believed that there would be such a distinction. Sensing that I was displeased with the exercise, she quickly retreated from her position. Our gangs unit handles the prosecution of offenders identified as gang members whose alleged crimes are in furtherance of the gang. Most of the offenses prosecuted within the unit are shootings and murders. Many of our victims themselves have been identified as gang members, and a significant number of them have previously been prosecuted by our office. As defendants, they sat at a table across from ours, their family members seated behind them. As victims, their families now sat behind our table. There is a cynical saying within the gang unit—­ “yesterday’s defendant, tomorrow’s victim.”

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It is common knowledge within the field of prosecution that the line between victims, witnesses, and defendants is often blurred. It is not just gang crimes. It is domestic violence, sexual assault, and juvenile delinquency. Many of our communities most impacted by violence have large swaths of people living with untreated trauma that often leads to a violent response that is often believed to be self-­protective. Tyshawn Lee was a nine-­year-­old boy who was lured into an alley while playing basketball and then shot point-­blank in the head. His death was horrifically brutal, even by Chicago standards. The murder was in retaliation for the shooting of the mother of a gang member a few weeks prior. In retaliation for that shooting, Tyshawn, whose father was suspected in the shooting of the mother, was targeted and killed. Tyshawn’s father did not attend the trial in the death of his son, since he was awaiting his own trial for murder. During the sentencing hearing of one of the men convicted in Tyshawn’s death, the lawyer detailed that the defendant’s father had been murdered years earlier and that he had bounced from home to home. I listened to the mitigation evidence with a sense of despair. The histories of the victims and defendants in the case were almost indistinguishable, fraught with trauma, loss, and unmet needs. The traditional approach of prosecution and incarceration often missed or ignored the fluidity of the roles of victim and defendants. So, changing that meant initiating training for our ASAs on the topics of trauma, human sociology, and the history of policing. We established the Returning Citizens Advisory Board (RCAB), composed of members who were previously prosecuted by our office and served a period of incarceration. The RCAB meets with and advises our executive leadership on issues related to the treatment of victims, witnesses, and defendants. The RCAB also creates and conducts training with line staff regarding their personal histories of victimization and the role their victimization played in the actions that landed them in prison. Almost all of our RCAB members have endured years of untreated trauma, much like the history of the man who killed Tyshawn. The context and nuance that the members provide through their stories help our ASAs learn about the complexities of their lives, thereby making the work more personal and less distant. RCAB members are enriching our perspectives as we look to do justice, and their stories are helping to humanize the impact of our

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prosecutorial decisions. Aligned with our mission, vision, and values, the goal is for our ASAs to be immersed in the communities that they serve and to learn firsthand from those who have embodied both the victim and offender role.

Data and Transparency Not only was there an imperative to shift our vision of the work; there was also a compelling need to bring transparency to our work. A lack of transparency enabled implicit biases and faulty assumptions about individuals and communities to thrive without challenge. There had been a long-­standing reluctance by prosecutors to address the issue of race in our work even though race fundamentally shapes what we do. In my 12 years as an ASA, I had been bombarded with the daily interplay of race and prosecution. I started my prosecutorial career in the office’s child protection bureau, where I handled cases involving allegations of child abuse and neglect. My job involved petitioning the court to remove children from their homes to be placed into the custody of the Department of Children and Family Services. The overwhelming majority of the families I encountered were Black and poor. The allegations of abuse and neglect ran the gamut. A significant percentage of the cases we handled grew out of substance abuse problems. We quite often saw moms addicted to cocaine or heroin, many of whom had given birth to babies exposed to drugs in utero. The fathers of these babies were largely absent, with many of them incarcerated. I also handled petitions where there was a determination that, due to a parent’s mental health challenges, the child was considered in danger and in need of protection. Often, a mother was noncompliant with her prescribed course of treatment or, worse still, was self-­medicating with illicit drugs. I found this work to be particularly challenging as a young Black ASA who was all too familiar with the conditions that brought so many children into care. But perhaps most disconcerting was the reaction of many of my white colleagues. For far too many ASAs, this was their first exposure to the Black community. But rather than recognizing that these families were at their lowest, most vulnerable point and that each of us is more than the worst thing we have ever done, these ASAs tended to view these cir-

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cumstances as the norm. They perceived these tragic cases as an example of an inherent pathology. I would often hear my colleagues refer to the parents who came into the courtroom as “baby daddies” or “crackhead mamas.” The neighborhoods where these families resided would often be described as the “ghetto” or the “’hood.” When I attempted to challenge this language and the racism that it exposed, I was told that I was being oversensitive. Then my white colleagues resorted to a familiar exceptionalism trope: they were quick to point out that I was “different” from the Black people who entered our courtroom. To be clear, my concern ran far deeper than the rhetoric. What struck me were the assumptions that were being made about the people we served and thus the decisions we made, which would have a profound impact on these families. There was no discussion about the root causes of violence or the systemic issues that resulted in the overrepresentation of communities of color in the criminal legal system. The unchallenged narrative was simply that these were “bad” people who made bad choices. I saw far too many ASAs casually move to terminate the parental rights of a mother who failed to complete drug treatment successfully or in a timely fashion or who tested positive for marijuana. We casually helped to create legal orphans who languished in the foster care system until adulthood. This callous disregard for the lives of these children, their families, and their communities only helped to perpetuate some of the worst aspects of the system. Many of these same children would eventually be charged as juvenile delinquents by the very ASAs who terminated the rights of their parents. Immediately upon taking office, I committed to gaining a solid understanding of the impact of our policies on communities of color. Historically, prosecutors’ offices have been the “black boxes” of the criminal justice system. Prosecutors wield a tremendous amount of power within the legal system. Through the power of prosecutorial discretion, we decide whom to charge and what to charge. We make bail recommendations, offer plea agreements, and make sentence recommendations. In most instances, an arrestee does not even get to see a judge without a prosecutor signing off. We make discretionary calls at every stage of this process that are largely unseen and unreviewable. So, the only way to get a clear picture of whether and where bias may be playing a role requires the collection and examination of data. The problem is that prosecutors

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rarely make such data public. All that anyone has been able to do historically was to speculate about the discretionary decisions made. But I firmly believe that we cannot meaningfully address the racial disparities in the criminal legal system without first being able to quantify them. I have longed adhered to the mantra “you cannot fix what you cannot measure.” To open our black box, I hired the office’s first-­ever chief data officer. The mandate was unequivocal: make the Cook County State’s Attorney’s Office the most transparent prosecutor’s office in the country. Transparency is critical to gaining the trust of those communities that, as a result of decades of poor policy, doubted the legitimacy of our efforts. In 2017, we became the first prosecutor’s office to release every piece of felony case–­level data publicly, dating back seven years prior to my administration. For the first time, we offered a window into every charging decision, dismissal, diversion, and sentence disposition. As a result, we were able to utilize the information to examine policies and to determine whether and where race acted as a factor in case outcomes. The decision to release the data proved controversial within the office. Many feared that the data would make our office “look racist.” Anecdotally, we were well aware that Blacks and Latinos made up the overwhelming majority of our court calls. As prosecutors, they argued, we do not initiate arrests. We simply prosecute what is brought to us. Thus, the argument went, any disparities should not be attributed to our work. Of course, I knew full well that data would potentially reveal the good, the bad, and the ugly, but to confront systemic racism in a meaningful way meant lifting our heads out of the sand and subjecting our own actions to scrutiny. In addition to putting the data on an open data portal, we also designed the Hacking 4 Justice program (H4J). H4J is a two-­day coding training designed for researchers, academics, advocates, and activists to learn how to access, read, and code the data on our portal. Trainees receive guidance on how to develop questions to mine the data productively so that they can obtain real answers. In the first training cohort, there was an advocate from the domestic violence community who wanted to learn about sentencing outcomes for domestic violence offenders. It was imperative that the data was provided to the communities we served, so that they were empowered to hold the office accountable by addressing their specific needs and would have the data to support

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their positions. H4J training was initially held quarterly, and community participation grew with each session. As a result of the success of H4J, we spun it out as its own nonprofit entity that works directly with entities to use our data. For example, a judicial watchdog organization has used our data to evaluate judges seeking retention to determine whether there are disparities in their treatment of defendants based on race. And a domestic violence group has utilized our data to assess the availability of orders of protection for women based on zip codes in an effort to track and assess disparities. When the office reviewed the data we had collected, it did not hold many unexpected results. But the biggest surprises came in the types of cases that drew most of our resources. As noted previously, our top prosecuted offenses were for nonviolent crimes that largely impacted poor communities. Drug possession, shoplifting, and driving on a suspended license accounted for three of the five most common felony offenses charged by our office in 2016. Illegal possession of a firearm and driving under the influence rounded out the list. The data confirmed that Blacks were overwhelming represented in drug prosecutions, accounting for almost 65 percent of those cases. Latinx drivers were overrepresented in driving on suspended licenses cases (by a two-­to-­one margin) and in driving under the influence cases as well. Blacks accounted for 80 percent of possession of illegal firearms arrests. In fact, with the exception of driving under the influence, Blacks were overrepresented in all offense categories. There were also racial disparities in sentencing. The data showed that Blacks were more likely to be sentenced to prison compared to Latinx and white defendants. Additionally, these sentences were for longer periods of time than white defendants sentenced for similar offenses. Blacks were less likely to be afforded the opportunity to participate in programs diverting them out of the system, whereas whites were most often referred for such opportunities. Blacks were also less likely to receive probation in comparison with defendants from other communities. After seeing that data and the disparities it exposed, we then set about the work of understanding how we got here. As the chief data officer often reminds our team, data is meant to raise questions, not simply to provide answers. Drug possession cases were an obvious point of interest in assessing the data. A wealth of research has documented that

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drug usage rates are similar across racial demographics.17 However, in looking at those individuals whom we prosecuted for drug possession, Blacks represented 72 percent of the prosecutions in 2016. White defendants were offered diversion programs at a significantly higher rate than Blacks. Upon discovering the disparity, we looked at the screening tool used to refer defendants for diversion. We were then able to determine that our office used evidence of a prior criminal arrest history to screen Blacks out of diversion programs at rates far higher than whites. It became clear that criminal history was a barrier for Blacks and that many of those being excluded were excluded for arrests alone, not convictions. We were also able to track by zip code where drug arrests were made. Unsurprisingly, policing methods in the city found a substantially higher number of arrests for drugs in predominately Black communities than in white communities, leading to the greater likelihood of a record for Black defendants. This analysis informed our policy-­and decision-­ making, and we adjusted our policy to remove the preclusion from diversion for those with prior arrests or convictions for a similar offense. The removal of that provision led to a 45 percent increase in the number of Blacks designated as eligible for diversion. In 2017, the ACLU of Illinois had completed a study finding that, in Chicago, Blacks were four times more likely to be subjected to a traffic stop than whites.18 Much like policing strategies related to drug arrests, police were targeting traffic stops in Black communities on the South and West Sides of the city. Most of those stops did not result in discoveries of weapons or other illegal conduct. Rather, these stops enabled police to cite the driver for operating a vehicle on a suspended or revoked license. Once I issued the directive to stop prosecuting people for driving on a suspended license due to their failure to pay fines and fees, our ASAs were then able to utilize their efforts to address more serious issues such as driving under the influence and vehicular homicide. In 2020, the state governor signed the License to Work Act, which prohibits the suspension of someone’s driver’s licenses due to failure to pay tickets.19 We were proud to have led in these efforts by demonstrating through data the disproportionate impact this policy had on communities of color.

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Conclusion My first term in office ended with an eerie familiarity to how it began. A nation continuing to reckon with a justice system that seemed to be on a continuous loop—­tragedy, outrage, calls for change, marginal change, repeat—­from Fred Hampton and Laquan McDonald to Breonna Taylor and George Floyd. I was ushered into office on wave of activism and advocacy, committed to fundamentally reimagining the role of the prosecutor. As a Black woman and former line prosecutor, this mandate was deeply personal. I had seen so much personally and professionally that ran counter to the notion that justice is blind and that experience motivated my reform efforts. That meant leaning in to my experiences as a Black woman from public housing, as well as my family’s personal struggles with trauma, mental health, and substance use disorder. It required that I root my leadership in vulnerability and an unapologetic commitment to addressing systemic racism that permeates the justice system. At times, my efforts have been met with contemptuous backlash and stubborn resistance both internally and externally. However, my overwhelming reelection to a second term ratified the belief that prosecutors can and should lead on issues of racial justice and criminal justice reform. And it confirmed that we are headed in the right direction. Every attorney who is sworn in to my office receives a copy of the ABA Model Rules for prosecutors. The rules confirm that the primary duty of the prosecutor is to seek justice, not merely to convict. New lawyers also receive documents articulating our mission, vision, and values statements. This is a deliberate effort to indoctrinate the attorneys about the power and privilege of serving as prosecutors and to make plain that our role is to serve, not to win. Our true measure of success is not seen in conviction rates but rather in the health, safety, and welfare of the communities that have been impacted by systems of racism and the violence and inequity that result. To be true public servants, we must in fact be proximate to those we serve. It is a mandate that is not simply internal; it is an expectation of the community. It is also the way in which I want to provide leadership in this office. Recognizing that, for the criminal justice system to work and for us to be successful in working with the communities that we serve, we must redefine success. So, going forward, the success of our work will be measured by the com-

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munities’ faith that the criminal justice system is legitimate and credible. Our legitimacy, credibility, and ultimately our success can be conferred to us only by those whom we serve. Notes

1 U.S. Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities April 23, 1976, Transcribed by Paul Wolf, Final Report—­ Book III: Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans, https://books.google.com. 2 PBS, A Huey P. Newton Story, 2002, www.pbs.org. 3 Jason Meisner and Jeremy Gorner, Chicago Forgoes Appeal after Judge Orders Release of Video of Fatal Police Shooting, Chicago Tribune, Nov. 20, 2015, www. chicagotribune.com. 4 2010 U.S. Census, www.census.gov. 5 Jeremy Gorner, Few Answers as Chicago Hit With Worse Violence in 20 Years, Chicago Tribune, Dec. 30, 2016, www.chicagotribune.com. 6 See, e.g., Kim Taylor-­Thompson, Girl Talk—­Examining Racial and Gender Lines in Juvenile Justice, 6 Nevada L.J. 1137 (2006). 7 Rebecca Epstein et al., Georgetown Center on Poverty and Inequality, Girlhood Interrupted: The Erasure of Black Girls’ Childhood 7 (2017), https://genderjusticeandopportunity.georgetown. edu. 8 Amita Kelly, Does It Matter That 95 Percent of Elected Prosecutors Are White? NPR, July 8, 2015, www.npr.org; Jaclyn Peiser, Only 1% of Elected U.S. Prosecutors Are Women of Color, Fortune, July 8, 2015, https://fortune.com; Nicholas Fandos, A Study Documents the Paucity of Black Elected Prosecutors: Zero in Most States, N.Y. Times, July 7, 2015, www.nytimes.com. 9 Christal Hayes, State Attorney Aramis Ayala Receives Noose in the Mail, Orlando Sentinel, Apr. 20, 2017, www.orlandosentinel.com. 10 Christine Boynton, Baltimore State’s Attorney Receiving “Hate Mail and Even Death Threats,” Fox News, July 1, 2016, https://foxbaltimore.com. 11 Derwyn Johnson, Gardner Takes Her Fight Against Injustice Nationally, St. Louis American, Mar. 18, 2021, www.stlamerican.com; 12 FOP Wants Cook County State’s Attorney Kim Foxx To Resign Over Handling Of Jussie Smollett Case, CBS 2 Chicago, Apr. 1, 2019, https://chicago.cbslocal.com. 13 Javonte Anderson, Dueling Protests, Chicago Tribune, Apr. 1, 2019, www. chicagotribune.com. 14 Stefano Esposito and Rachel Hinton, Police Union, Activists Face-­off Over Kim Foxx, Jussie Smollett, Chicago Sun-­Times, Apr. 1, 2019 https://chicago.suntimes.com. 15 Matt Masterson, ACLU Report Finds Chicago Police Traffic Stops Jumped by 200K in 2018, WT T W, Dec. 19, 2019, https://news.wttw.com.

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16 Frank Main, Murder “Clearance” Rate in Chicago Hit New Low in 2017, Chicago Sun-­Times, Feb. 9, 2018, https://chicago.suntimes.com. 17 Lee V. Gaines, Despite Decriminalization Chicago Grass Gap Persists, Chicago Reader, Apr. 19, 2017, www.chicagoreader.com. 18 Masterson, ACLU Report. 19 License to Work Act to Allow Licenses to be Reinstated, Crusader Newspaper Group, Jan. 20, 2020, chicagocrusader.com.

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Acknowledgments

This book would not have been possible without the support of an amazing village. We would like to thank the Center on Race, Inequality, and the Law at New York University School of Law for its support. We owe a special debt of gratitude to Sofia Lopez-­Franco, Catherine O’Neill, Sara Bagley, and Renata O’Donnell for their willingness to go above and beyond the call of duty in research and editorial assistance. We so appreciate their diligence and their calm. We thank Laurie Garduque, John Chisholm, and Besiki Kutateladze, whose early conversations about the need for broader thinking helped shape the direction of the book. We also gratefully acknowledge the administrative and moral support of Damaris Marrero. We could not have completed this without financial support from the Filomen D’Agostino and Max E. Greenberg Research Fund at the New York University School of Law. We want to say a special thank you to our parents—­Elena Hopkins, Leo Hopkins, Theodora Taylor, and Billy Taylor—­for their amazing examples. They did more with less, and we stand on their shoulders. They taught us to fight for our voice and to fight on behalf of those whom our systems look to silence. We are deeply grateful to Dan Satterberg, Angela J. Davis, William C. Snowden, Don Stemen, and Kim Foxx for their thoughtful contributions to this book. As important, we are inspired by the ways that they show up each day as champions of meaningful racial justice and reform. In-­depth discussions with each of them, from the start of this project, inspired our best thinking. Their efforts have only reaffirmed our sense of the urgency for this book. Now is the time to rethink how all prosecutors will discharge their duties as we process the events that have animated the past years. The protests around the deaths of unarmed people of color, the pandemic of racism that has been unleashed in the country, calls to defund the police, and the racial disparities associated with COVID-­19 have all demanded a new approach to the criminal legal system. 283

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Doing nothing simply exacts too great a toll, particularly on impacted communities. Choosing to take up the mantle of reform will present obvious challenges because change is never easy. But we dedicate this book to all prosecutors willing to take on those challenges, including those who may not have donned the label of “progressive” but who nonetheless recognize the imperative of reckoning with race in the criminal legal system. The decisions prosecutors make will determine the extent to which the public can gain greater trust in our justice system. The choices prosecutors make will determine whether we will continue to pursue what is easy or opt to do what is more difficult, but what is right.

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About the Editors

Kim Taylor-­Thompson, Professor of Clinical Law Emerita at New York University School of Law, founded the Criminal Justice Program at the Brennan Center for Justice. Her writing examines the distorting effect of race on justice. Taylor-­Thompson practiced for a decade at the D.C. Public Defender Service, ultimately serving as Director. Anthony C. Thompson is Professor of Clinical Law Emerita at New York University School of Law and is the Founding Faculty Director of the Center on Race, Inequality, and the Law at New York University School of Law.

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About the Contributors

Angel a J. Davis is Distinguished Professor of Law at American University Washington College of Law. Davis is the author of Arbitrary Justice: The Power of the American Prosecutor (2007). She is also the editor of Policing the Black Man: Arrest, Prosecution and Imprisonment (2017), among others. Kimberly M. Foxx is the first African American woman to lead the Cook County State’s Attorney’s Office—­the second largest prosecutor’s office in the country. Dan Sat terberg is King County Prosecuting Attorney in Seattle, Washington. William C. Snowden is Founder of The Juror Project at the Vera Institute of Justice as well as Director of the New Orleans office. Don Stemen is Associate Professor and Chairperson in the Department of Criminal Justice and Criminology and a member of the Graduate Faculty at Loyola University Chicago.

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Index

Abu-­Jamal, Mumia, 107 accomplice liability, 196 accountability: for the accused, 56, 62, 63; community prosecution movement and, 26; data collection and use to improve, 47, 216–­221; for drug addicts, 68, 70; of police officers, 29–­30, 105, 214, 253, 255; to prisoners suffering harm, 24; of prosecutors, 6–­7, 10, 12, 15, 34, 46, 52, 75, 95, 97–­98, 159, 215 ACLU (American Civil Liberties Union): Chauvin killing of Floyd and, 5; on district attorney elections, 98; in LEAD program, 73; Prosecutorial Transparency Act proposal, 233, 242n14; on racial disparity in Chicago traffic stops, 261, 278; supporting laws requiring prosecutors to collect and report data, 219 addiction and substance abuse: community-­based care model for, 67–­68; medication-­assisted treatments for opioid addicts, 67; overdose deaths caused by, 64, 75; prevalence in United States of, 65; prosecutors’ recognition as factor in criminal cases, 26–­27, 35; treatment preferred to incarceration for, 65 adolescents. See children; juvenile justice Alliance for Safety and Justice, 85 Alvarez, Anita, 105, 253 American Bar Association (ABA), 30; Model Rules for prosecutors, 146, 279

American Civil Liberties Union. See ACLU American Guard, 108 American Identity Movement, 108 American Prosecutors Association (APA), 125 American Prosecutors Research Institute (APRI), 220, 244n32, 250n107 animal analogies for Black behavior, 178–­179 Anti-­Defamation League, 108 anti-­Semitism, 153, 158, 178 Arbery, Ahmaud, 2, 19 Armstrong, United States v. (1996), 111 Association of Prosecuting Attorneys, 59 Ayala, Aramis: backlash against, 43–­46, 108, 259–­260; death penalty, refusal to seek, 102–­103 backlash against prosecutorial reform, 43–­ 46, 99, 108, 258–­266 bail: racial bias in, 147–­148; reform, 16, 30, 76, 99–­100, 119, 236, 237, 255, 261 Baker, Evelyn, 167, 170–­171 Barr, William, 5, 30, 97 Batson v. Kentucky (1986), 54n47, 153–­156 Becton, Diana, 29 Berger v. United States (1935), 95 Birth of a Nation (film), 140 Black Codes in American South, 138–­139, 141 Black Liberation movement, 253 Black Lives Matter (BLM) movement, 27, 55, 57, 104

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Black Panther Party, 252 Blacks, treatment in justice system. See headings starting with “race” and “racial” Blake, Jacob, 213 Blenner, Nathan, 195 Bordenkircher v. Hayes (1978), 111 Bostic, Bobby, 167–­171 Boudin, Chesa, 29–­30, 100 Boyd, Rekia, 268 Brady v. Maryland (1963), 149–­150 Brooklyn District Attorney’s Office: community engagement and, 27; Justice 2020 initiative, 101; Office of Public Engagement, 124; strategic plan implementation, 227; wrongful conviction of William Lopez, 157 Brooks, Rayshard, police killing of, 29 Brown, Cal, 81–­82 budgeting in prosecutor’s office, 35 California: peremptory strikes to eliminate Black jurors in 154, 30; Proposition 57 (2016) on charging juveniles as adults, 177, 205n37 California State Bar Association, 30 Cannizzaro, Leon, 157 capital punishment. See death penalty Capitol insurrection (January 6, 2021), 6 Carey, Bernard, 253–­254 Carmody, Gerald, 109–­110 Carter, Francis, 40 case management systems. See data collection and use Castile, Philando, 105 Centers for Disease Control and Prevention (CDC) on juveniles charged as adults, 173 Central Park Five/”Exonerated Five,” 149, 194 “Central Park Karen,” 3 change agents, prosecutors as, 30, 57, 91

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charging: “blind-­charging tool,” development of, 236; prosecutor’s discretion in, 144–­146 Charlotte, participation in Prosecution and Racial Justice Program of Vera Institute of Justice, 218 Chauvin, Derek, 1–­2, 5 Chemical Foundation, Inc., United States v. (1926), 111 Chicago Police Department, 252–­253, 262 Chicago prosecutors. See Cook County State’s Attorney’s Office chief prosecutors, 19–­54; assessment of current office practices and policies, 35; backlash from reform initiatives, 43–­46; Black women as, 91, 108–­109, 254, 259–­260, 264; collaborative environment created by, 40–­41; communication as priority for, 31, 34, 122–­124; community engagement and, 26; five prongs of reform for racial equity and justice, 31–­38; framework for change, creation of, 46–­50; intersectional leadership components for, 38–­46, 51; as leaders in criminal justice reform, 8–­12, 19–­54, 114–­115, 203–­204; learning from unlikely sources, 39–­40; moral courage and integrity of, 42, 46, 51, 71; office culture created by, 50–­51; open lines of communication with, 40, 51; pilot programs and studies, participating in, 50, 227; progressive prosecutors, election of, 25; race and gender of, 258; reform of their staff for racial equity and fairness, 32–­33, 49–­50, 114–­ 115; repairing past harm and setting future course, 50–­52; suspicious mind-­ set of, 41–­42; teambuilding by, 38–­39; visualization of race-­conscious criminal justice reform by, 30–­31, 50–­52. See also discretionary decision-­making; elections and politics; prosecutors’ offices; specific chief prosecutors by name

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children: Black children living in traumatic environments, 188–­189; Black children perceived as more adultlike, 179–­182, 185; domestic violence, exposure to, 80; privilege of innocence and, 180; urban youth experiencing traumatic events, 189. See also juvenile justice Chisholm, John, 33, 216–­218, 244n36 Choi, John, 105 Choose 180 program (Seattle), 62–­63 civil matters, criminalization of, 61–­62 Clark, Mark, 252–­254 clemency, 84 Coates, Ta-­Nehisi: Between the World and Me, 268 collateral consequences of convictions, 90, 95, 173, 269 Color of Change, 98 Common Justice (Brooklyn), 76 communication: chief prosecutors, priority for, 31, 34, 122–­124; community-­ credible messengers communicating with juveniles at risk for violent crime, 79; in race-­conscious criminal justice reform, 22, 46, 172. See also community engagement Community Accountability Board (CAB, Seattle), 62–­63 community engagement: community intervention with juveniles at risk for violent crime, 79; community prosecution, shortcomings of, 26, 61; in criminal justice reform, 22, 25–­26, 33–­34, 38, 123–­124, 160–­161, 186–­187; as driver of safety and justice, 23; empowering community use of data from prosecutor’s office, 234; prosecutors’ accountability and, 218, 271–­274; prosecutors’ in-­house training and, 32–­33, 37–­38, 116–­117, 203; prosecutors’ lack of, 269 “community justice,” defined, 62 community nonprofit service providers, 63

Taylor-Thompson_i_305.indd 291

confessions, 193–­196, 264 confirmation bias, 158–­159 conflict of interest, prosecutors’ relationship with police unions, 29, 30, 104 Connecticut’s law requiring prosecutors to collect and report data, 219, 233 Connick, Harry, Sr., 230 the conservative right: backlash against prosecutorial reform, 20, 30, 43–­46, 258–­266; on Black-­on-­Black crime, 208n90 conspiracy in adolescent crime, 196 Contra Costa County, California, 29 Conviction Integrity Units (CIUs), 102, 112–­113, 122–­123, 159 convict leasing, 139–­140 Cook County Board of Commissioners, 263 Cook County Public Guardian’s Office, 257–­258 Cook County State’s Attorney’s Office (Illinois), 28, 252–­281; in Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, 235–­236, 244nn34–­35, 250–­ 251n114; chief data officer, creation of position, 276; chief diversity officer, creation of position, 265–­266; chief ethics officer, creation of position, 265; community engagement, emphasis on, 271; culture in office, 264–­265, 274–­275; data collection and analysis staff in, 227, 240, 276; data dashboards in, 231; diversion program in, 100–­101, 271, 277–­280; Employee Resource Groups in, 266–­268; equal employment opportunity officer, creation of position, 265–­266; examination of racial and ethnic disparities by, 218–­219; gang crimes and victims, treatment of, 272; Gun Crimes Strategies Unit, 262; Hacking 4 Justice program, 234, 249n103, 276–­277;

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Cook County State’s Attorney’s Office (cont.) intelligence-­driven prosecution in, 239; mission, vision, and values of, 268–­274; performance evaluation criteria for prosecutors, 271; pretrial detention and bail system in, 99–­100; promotion protocols in, 272; public disclosure of case management data by, 233–­234, 249n98; race of prosecutors in, 263; racial injustice in, 105, 252–­253; reaction of Black prosecutors to George Floyd’s murder, 266–­268; Returning Citizens Advisory Board (RCAB), 273; success based on just outcomes and use of diversion programs, 271, 279–­280; training sessions for interns, 272. See also Foxx, Kimberly M. Cooper, Amy, 3 Cooper, Christian, 3 CourTools, 240n2 COVID-­19 pandemic, 3, 8, 19, 55, 64, 75, 77; disproportionate effect on children of color, 189; effect on criminal justice system, 213–­214, 216; reduction in jail population due to, 86 Criminal Justice Task Forces, 123 criminal procedure reform, 76–­77 Cruezot, Jon, 107–­108 culture, transformation of, 13–­1 4, 50–­51, 95, 114–­124, 184, 202, 203, 264, 274–­ 275 Cuyahoga County Prosecutor’s Office, 105 Daley, Richard J., 254 Dallas County District Attorney’s Office, 107–­108, 153 Dallas Police Association, 107 dangerousness: associated with Black men and youth, 3, 140, 171, 175–­179, 184; associated with group (gang) conduct, 197–­198 DAStat, 222

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data collection and use, 15–­16, 27, 46–­50, 213–­251; analytic capacity, 226–­227; benefits of and reasons to engage in, 47, 214, 216–­222, 230–­231; calls for prosecutors to provide for transparency and accountability, 215; chief data officer position, 227; conviction statistics used to evaluate prosecutor’s performance, 24, 95, 268, 271; in Cook County DA’s Office, 274–­278; data dashboards, 231–­232, 237; data-­driven organizations, definition of, 230–­231, 234, 243n19; data literacy, development of, 228–­230; failure of prosecutors to engage in, reasons for, 222–­230; history of law enforcement, courts, and corrections agencies using, 214–­215; intelligence-­driven (predictive) prosecution, 237–­239; in juvenile prosecutions, 202; organizational change as result of, 219–­222; performance measurement and program evaluation, 234–­237; by prosecutors’ offices, 27, 46–­50, 152, 160, 215; public data portals, 233–­234, 241n8, 276; standardized metrics for, 220–­221, 223–­226; third-­party vendors, role of, 225–­226, 246n59, 246n61; useable and accessible data, 223–­226 Daugaard, Lisa, 73 Davis, Angela J., 13–­14, 95 Davis, Miles, 60 Death in Custody Reporting Act (2014), 128n28 death penalty: abolition of, 81–­83; juvenile offenders, unconstitutionality for, 174; legal costs associated with, 82, 103; reasons to oppose, 103; refusal by DAs to pursue, 44–­45, 102–­103, 260 Deegan, Gerry, 148 defense attorneys: reaction to George Floyd’s murder, 6. See also public defenders

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deflection. See diversion and deflection programs “defund the police” movement, 5, 21, 63, 213, 222 Dehghani-­Tafti, Parisa, 113 dehumanization, effect of, 178–­179, 184 deterrence: conspiracy charges and, 196; death penalty and, 82; felony murder doctrine and, 199–­200 Dignity, Racial Justice, and Prosecution Initiative, 119 discovery, 148–­150 discretionary decision-­making: bail, 147–­ 148; charging, 144–­146; confirmation bias in, 158–­159; controversy over progressive prosecution’s use of, 30, 48, 93, 110–­114; data as way to improve, 216–­218; discovery, 148–­150; implicit bias in, 142–­144; in-­group bias in, 151–­ 152; jury selection, 152–­156; juvenile justice, 167–­171, 175; plea-­bargaining, 150–­152; postconviction litigation, 156–­159; prosecutor’s authority over, 95, 110–­111, 141, 172, 257–­258, 275; racial factors in, 27, 37, 135; U.S. Supreme Court upholding prosecutor’s power of, 111 district attorneys. See chief prosecutors; prosecutors’ offices District of Columbia Public Defender Service, 40 diversion and deflection programs: call for increase in, 8, 57, 214; in Cook County, 100–­101, 271, 277–­280; justice served by, 269; in juvenile justice, 62–­63, 175, 202, 203; low-­level offenses and, 28, 100, 214, 236, 237, 261; in New Orleans, 136; public defender participating in planning, 122; in St. Louis, 119; in San Francisco, 236; in Seattle, 30, 60–­64, 70. See also specific types of offenses DNA evidence, 194–­195

Taylor-Thompson_i_305.indd 293

domestic violence, 79–­81, 180 driving offenses: Driving While License Suspended Third Degree (DWLS3), 61–­62. See also traffic stops and driving on suspended licenses drug offenses: diversion programs and, 100–­101, 237, 278; drug courts, 66–­67; Foxx changing approach to, 270, 277–­ 278; harm reduction practices and, 34; implicit racism in, 145, 183; need to reframe justice system’s response to, 67–­68, 270; Violation of the Uniform Controlled Substances Act (VUCSA), 69; Washington state’s approach to sentencing, 66–­67, 69 Duval County (Florida) prosecutors’ office in Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, 235–­236, 244nn34–­35, 250–­251n114 DuVernay, Ava, 149, 260 economic inequality, 28. See also poverty Eighth Amendment, 75, 167 Einstein, Albert, 93 elections and politics: as accountability mechanism for prosecutors, 97–­98; chief prosecutor becoming target of backlash politics, 43–­46, 108, 259–­260; chief prosecutor’s decision making influenced by politics, 11, 24, 42; conflict of interest, prosecutors’ relationship with police unions, 29, 30, 104; criminal justice policy driven by, 56; death penalty as controversial issue in, 103; disenfranchisement of people with felony records, 90; lack of opposition candidates for chief prosecutors, 97–­ 98; progressive prosecutors, election of, 9; prosecutors voted out of office for failure to charge police officers, 105; voting by incarcerated people in Maine and Vermont, 90

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empathy, need for, 186. See also community engagement Equal Justice Institute, 92 equity. See racial equity and fairness ethnic cleansing and dehumanization, 178 Evans, Doug, 154 Evergreen Treatment Services, 74 evidence: confession evidence, 193–­196; DNA as, 194–­195. See also discovery “Exonerated Five”/Central Park Five, 149, 194 Extreme Risk Protection Orders, 80–­81 Fair and Just Prosecution (FJP), 59, 71, 120–­121, 220, 242n15 Fairhurst, Mary, 83 fairness. See racial equity and fairness Fairstein, Linda, 149 false confessions, cases based on, 193–­196, 264 Federal Bureau of Investigation (FBI): false confession, investigation of prosecutor who obtained, 264; on murder rates, 77; refusing to investigate former Missouri governor Greitens, 109; Uniform Crime Reporting (UCR) program, 240n1, 241n8 felony murder doctrine: charges against adolescents and, 198–­201; rationales for, 199–­200 Fifth Amendment, 75 firearms prosecutions, 43–­44 First Felony Diversion program (King County, Washington), 63–­64 First Step Act (2018), 25 five pillars for criminal justice reform, 13, 55–­94; conviction review for fairness, 83–­84; death penalty, abolition of, 81–­ 83; diversion and deflection programs, 57, 60–­64; domestic violence, 79–­81; fairness and equity in sentencing, 57, 75–­86; gun violence, 78–­79; “no return” policies for successful reentry, 57,

Taylor-Thompson_i_305.indd 294

89–­91; overview, 60; prison reform, 57, 87–­89; public health responses to behavioral issues, 57–­58, 64–­75; victims of crime, meeting needs of, 84–­86 FJP. See Fair and Just Prosecution Florida, Black juveniles charged as adults in, 176 Florida International University, Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, 220–­221, 227, 235–­236, 244nn34–­35, 250–­251n114 Florida Ninth Judicial Circuit Court state attorney, 43–­44 Flowers v. Mississippi (2019), 154 Floyd, George, police murder of, 1–­5, 19, 22, 24, 29, 136, 213, 266–­268 FOP. See Fraternal Order of Police Foss, Adam, 120 foster care and termination of parental rights, 257, 275 Fourth Amendment, 75 Foxx, Kimberly M., 16, 252; background of, 255–­258, 274–­275; backlash and threats against, 16, 108, 258–­266; chief data officer position created by, 227; Conviction Integrity Unit and, 102; diversion programs used by, 28, 100–­101; mission, vision, and values for prosecutor’s office, 268–­274; pretrial detention and, 99–­100; as progressive prosecutor in Cook County, 105, 254–­281; public disclosure of case management data by, 233, 234, 249n98; reaction to George Floyd’s murder, 266–­268; reelection of, 279; Smollett case and, 108, 112, 125, 260; special prosecutor finding abuse of discretion by, 112; at training sessions for interns, 272. See also Cook County State’s Attorney’s Office Fraternal Order of Police (FOP): Chicago chapter, 108, 253, 258–­259, 261–­262; Philadelphia chapter, 44, 107

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Freeman, Mike, 4 Frontline (TV program) on Seattle LEAD program, 72 functional magnetic resonance imagining (fMRI) on effect of peer group influence on adolescents, 197, 211n129 Gallup poll on substance abuse treatment instead of incarceration, 65 gang membership and activity, 197–­198, 272. See also peer group influence on adolescents Gardner, Kim, 108–­110, 112–­113, 119, 259 Gascon, George, 103, 221–­222, 247n66 gender bias, 14, 110, 142, 151–­153, 181, 183–­ 184, 217–­218 Georgetown Law Center on Poverty and Inequality, 181 G.I. Bill (1944), 140–­141 Gilligan, James: Reflections on a National Epidemic, 78 Goff, Phillip, 179–­180 Gonzalez, Eric, 101, 124, 220 Gossett, Christian, 216–­217, 244n36 Graham, Sandra, 184–­185 grand juries refusing to indict police for misconduct, 29 Gray, Freddie, 259 Gregory, State v. (Wash. 2018), 83 Greitens, Eric, 109–­110, 112 Griffith, D. W., 140 group influence. See peer group influence on adolescents Guardians of Justice, 34 guilty pleas. See plea agreements guns: in domestic violence, 80; “red flag laws,” 81; in urban violence, 78–­79 Hampton, Fred, 252–­254 Hanrahan, Ed, 252–­253 Hari, Johann, 64 harm reduction: defined, 73; as goal in prosecutorial reform for racial equity

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and justice, 34–­35; in LEAD program for drug abusers, 70–­7 1, 73–­74; victims of crime, views on, 85 high-­profile cases, pressure to close, 149 Hillsborough County (Florida) prosecutors’ office: in Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, 235–­236, 244nn34–­35, 250–­251n114 Hogan, Elizabeth, 113 homelessness: of formerly incarcerated individuals, 89; nationwide, 64; prosecutors’ recognition as factor in criminal cases, 26–­27; in Seattle, 57, 68, 74; social safety nets, need for, 68–­69 homicide: as adolescent cause of death, 188–­189; charging only at level that can be proven beyond reasonable doubt, 101; charging police with, 105; Chicago rate of, 255, 262; domestic violence killings, rate of, 79, 80; juveniles given mandatory life without parole sentences for, 174; national rate of, 77 Hoover, J. Edgar, 252 housing needs: of former substance users, 67–­68; redlining and racism, 140–­141. See also homelessness Humes, P. J., 154 Hutson, Donald, 167–­169 Hynes, Charles, 157 Implicit Association Test (IAT), 142, 160 implicit bias, examples of, 141–­144 implicit racism, 14, 19; bail and, 147–­148; “Bias Override Card,” use of, 161; charging and, 144–­146; defined, 182; dehumanization and, 178–­179; discovery and, 148–­150; drug cases and, 145; in-­group bias and, 151–­152; jury selection and, 152–­156; juvenile justice and, 145, 182–­185; plea-­bargaining and, 150–­152; postconviction litigation and, 156–­159; prosecutors and, 32, 142–­152;

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296 | Index

implicit racism, (cont.) race-­switching as strategy to overcome, 185; recommendations to acknowledge impact of, 159–­162; in United States, 91–­92, 137, 161–­162, 177, 182–­183 impulsivity of adolescent decisions, 200 incarceration. See prisons and incarceration inclusive forms of justice, 24, 49, 51. See also racial equity and fairness individuation as strategy to minimize implicit racism, 161 in-­group bias, 151–­152 Innocence Project, 102, 157 Institute for Innovation in Prosecution (John Jay College), 59, 119, 121, 124 Institute for State and Local Governance, 227 intimate-­partner violence, 79–­81 Jacksonville, examination of racial and ethnic disparities in, 219 Jim Crow, 138–­139, 141 John Jay College’s Institute for Innovation in Prosecution, 59, 119, 121, 124 Johnson, Kevin, 157 Johnson, Lamar, 112–­113 judiciary: CourTools (National Center for State Courts), 240n2; data collection and use by, 214–­215; drug courts, 66–­67; new chief prosecutor’s need to establish relationship with, 122 jury selection, racial bias in, 47, 54n47, 152–­156 Justice 2020 initiative (Brooklyn), 101 juvenile justice, 15, 167–­212; accomplice liability in, 196; Black children perceived as more adultlike, 179–­182, 185; Black children subject to suspicion and fear, 187–­188; Black girls’ entry into criminal justice system, 180–­ 182; Bostic case in Missouri, 167–­171;

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charging juveniles as adults, 103, 145, 170, 172, 173, 175–­177, 201–­202; confessions and, 193–­196; conspiracy and, 196; criminal stereotyping of Black males and, 177–­178; data collection and use, 202; death penalty ruled unconstitutional, 174; dehumanization, effect of, 178–­179; diversion programs, 62–­63, 202, 203; environments in which juvenile offenders live as factor in, 188; felony murder charges and, 198–­201; gang membership and activity and, 197–­198; group crime and, 196–­197; implicit racism and, 145, 182–­ 185; impulsivity of adolescent decisions and, 200; life sentence without possibility of parole (LWOP), 103–­104, 174, 201; need for proximity to be effective problem-­solvers in, 185–­192, 202–­203; peer group influences of adolescents and, 169–­170, 174, 196–­197; progressive prosecutors and, 192, 201–­203; race-­conscious criminal justice reform of, 193–­201; racial inequity in, 171–­172, 175–­182; school-­to-­prison pipeline, 190–­191, 255; scientific recognition of brain development in adolescence and, 173–­174; social limitations and safeguards on juvenile actions, 172–­173 Kendi, Ibram X., 137–­138 King County (Seattle) Prosecuting Attorney’s Office, 55, 57–­60; Choose 180 diversion program, 62–­63; CO-­LEAD, 86; Domestic Violence (DV) Unit, 79–­81; drug court, 66–­67; drug crime caseload, 65–­66; Extreme Risk Protection Orders, 81; First Felony Diversion program, 63–­64; homicide caseload, 77; Law Enforcement Assisted Diversion (LEAD) program, 67–­74, 101; pretrial detention in, 86; Protection Order Advocacy Program, 80; speedy

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trial rules during COVID-­19 pandemic in, 86; urban violence, outreach program to prevent, 78–­79. See also Satterberg, Dan Kings County (New York) District Attorney’s Office, 220 Klobuchar, Amy, 2 Krasner, Larry: background of, 106; conservative backlash against, 30, 43–­46, 107, 260; Conviction Integrity Unit and, 102; data dashboard and, 232; DATALab and, 227; death penalty, refusal to pursue, 260; diversion program and, 101; The Justice Wire (online media center) developed by, 217, 230; juvenile justice and, 103–­104; Pennsylvania District Attorney Association, dropping membership in, 125; police misconduct charges filed by, 105; public disclosure of case management data by, 233; on racist and sexist threats suffered by Black women DAs, 110; staffing changes by, 49, 106 Krimsky, Miriam, 120 Kristoff, Nicholas, 72 Ku Klux Klan, 140 Landry, Clarence, 157 Latinx communities and individuals: children more likely to be treated as adults, 180; children tried as adults, 176; Cook County data for driving with suspended license, 277; Cook County demographics, 255; jury selection and, 156; law school organizations for, 37; prosecutors’ meetings with, 31. See also community engagement law enforcement. See police Law Enforcement Assisted Diversion (LEAD) program (Seattle), 67–­74, 101; CO-­LEAD, 86 law enforcement unions. See police unions

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law schools: objectivity emphasis in, 185–­ 186; recruitment and hiring from, 37 leadership. See chief prosecutors Lee, Tyshawn, 273 License to Work Act (Illinois 2020), 278 life sentence without possibility of parole (LWOP), 84, 157; juvenile justice and, 103–­104, 174, 201 local administration of criminal system, 8, 25, 55–­56, 77, 97, 213–­214. See also specific geographic locations Lopez, William, 157 Los Angeles District Attorney’s Office, 27, 103 Louisiana: convict leasing in, 139–­140; incarceration rate in, 135; nonunanimous verdict in, 157–­158; as open-­ carry firearm state, 133; peremptory strikes to eliminate Black jurors in, 154; unanimous verdict, constitutional amendment requiring, 158 Louisiana State Penitentiary (Angola), 140 Louisville Metro Police Department, 3 Lowery, Brian, 184–­185 Loyola University Chicago, Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, 220–­221, 227, 235–­236, 244nn34–­35, 250–­251n114 lynchings. See racial terrorism and lynchings Machen, Ronald, 102 Maine, voting by incarcerated people in, 90 Maleng, Norm, 58 Mandela, Nelson, 87 Manhattan District Attorney’s Office: Arrest Alert System, 238; Crime Strategies Unit, 238, 247n68; data collection and analysis staff in, 227, 240; filing charges against Amy Cooper, 3;

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Manhattan District Attorney’s Office: (cont.) Intelligence-­Driven Prosecution Model, 238–­239, 247n68, 250n111; Prosecution and Racial Justice Program of Vera Institute of Justice, participation in, 218, 236–­237; prosecutorial discretion in, 36–­37; Sex Crimes Unit, 149; Strategic Planning and Policy Unit, 236; Surveillance Camera Interactive Map, use of, 239 marijuana legalization and taxation (Washington state), 71 Martin, Trayvon, 104, 267 McCallum, David, 195 McCleskey v. Kemp (1987), 111 McCloskey, Mark and Patricia, 113 McCray, Antron, 149 McDaniel, Ellas (aka Bo Diddley), 75 McDonald, Laquan, 105, 252–­254, 268 McGinty, Timothy, 105 McNeil Island as Washington state prison, 68–­69 McSwain, William M., 30, 44, 107 Measures for Justice, 220–­221, 241n8, 244n33 Mecklenburg (North Carolina) prosecutors’ office, Prosecution and Racial Justice Program of Vera Institute of Justice, 236–­237 media and social media: Bostic case publicity, 168; community prosecution utilizing, 26; mass shooter threats on social media, 81; police killings of Black people and, 104; progressive prosecutors, scrutiny of and racist comments about, 6, 9, 16, 91, 259, 260; race-­conscious criminal justice reform utilizing, 22 mental health: adolescent trauma and, 192; prosecutors’ recognition as factor in criminal cases, 26–­27; public health response to, 57–­58, 64–­75; treatment as alternative to incarceration, 136

Taylor-Thompson_i_305.indd 298

Midwest Innocence Project, 113 Miller, Marc, 220, 221 Miller v. Alabama (2012), 103–­104 Milwaukee County District Attorney Office: in Advancing Prosecutorial Effectiveness and Fairness through Data and Innovation project, 235–­236, 244nn34–­35, 250–­251n114; Prosecution and Racial Justice Program of Vera Institute of Justice, participation in, 218, 236–­237; prosecutorial discretion in, 33; reduction in racial and ethnic disparities, 218 Minneapolis Police Department, 1–­2, 4 Mississippi State Penitentiary (Parchman Farm), 140 Missouri Association of Prosecuting Attorneys, 113 mistrials, racism as basis for, 28 MIT Sloan School of Management, 243n19, 245nn45–­46 Morgan, Jerome, 157 Mosby, Marilyn, 108, 259 Mothers Against Police Brutality, 108 National Center for State Courts, 240n2 National Corrections Reporting Program (NCRP), 241n8 National District Attorneys Association (NDAA), 124–­125 National Organization of Black Law Enforcement, 34 New Jersey, Black and Latinx juveniles tried as adults in, 176 New Orleans: jail population in, 136; Snowden as public defender in, 132–­ 136, 143–­144 New York district attorney’s offices. See Brooklyn District Attorney’s Office; Manhattan District Attorney’s Office New York Police Department, 37; CompStat, 238, 251n124

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New York Times: Boudin’s opinion piece in, 29; survey on urban murder rates, 77 New York University’s Public Safety Lab, 227 911 emergency system, whites using to report suspected Black people, 3 nonunanimous verdict, 157–­158

data collection and analysis staff in, 240; data dashboards in, 231–­232; The Justice Wire, 217, 230, 243n20; public disclosure of case management data by, 233, 234. See also Krasner, Larry Philadelphia Police Department, 43, 106, 107 Plain View Project, 6 plea agreements: bail system and, 99; Oluo, Ijeoma, 138 O’Malley, Michael, 105, 254 implicit racism in, 150–­152; most com100 Blacks in Law Enforcement Who mon resolution of criminal cases, 9, Care, 34 48, 95, 150; New York City prosecutor’s open data. See data collection and use office, 36–­37; overcharging to gain open file discovery, 150 advantage in, 101; Snowden seeking Oregon: adoption of Portugal model to on behalf of client Jerry, 133–­135; US deal with drug abusers, 71; nonunaniDepartment of Justice list of factors mous verdict in, 158–­159 for, 150–­151 Orlando State Attorney’s Office. See Ayala, police: acknowledgment of enabling racist Aramis justice system, 6, 213; body-­cam footOrleans Parish District Attorney’s Office, age, 27, 29, 76, 145; dehumanization 157, 230 of Black suspects by, 180; new chief prosecutor’s need to establish relationship with, 122; opposed to progressive Parchman Farm (Mississippi State Penitentiary), 140 prosecutors, 97, 106–­109, 258–­266; Parker, State v. (N.C. App. 2021), 47 relationship with prosecutor’s office, parole, 101. See also life sentence without 22, 28–­29; white supremacy and, 6 possibility of parole (LWOP) police misconduct and brutality: accountPartee, Cecil, 254 ability for, 1, 104–­105; prosecutors’ compeer group influence on adolescents, 169–­ plicity in, 2–­4, 20, 22, 29, 104–­105, 108, 170, 174, 196–­198 265, 267; rate of killing Black suspects, 1; state laws intended to reduce, 128n28 Pennsylvania: legislation targeting police unions: influence in election of Philadelphia district attorney, 43–­44; chief prosecutor, 29, 30, 104; opposed peremptory strikes to eliminate Black to progressive prosecutors, 91, 97, jurors in, 154 Pennsylvania District Attorney Associa106–­109; reaction to George Floyd’s tion, 125 murder, 5 peremptory strikes in jury selection, politics. See elections and politics Portugal model of dealing with drug 153–­156 abusers, 71 Pew Research Center poll on rehabilitapostconviction litigation, racial bias in, tion vs. incarceration of drug offenders, 65 156–­159 Philadelphia District Attorney’s Office: post-­traumatic stress disorder (PTSD), community engagement and, 27; 189–­190

Taylor-Thompson_i_305.indd 299

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300 | Index

poverty: crime rates and, 141, 187; Driving While License Suspended Third Degree (DWLS3) and, 62; prosecutors recognizing as factor in criminal cases, 26–­27; racial disparity in, 140 pressure to close cases, 149, 186 pretrial detention, 86, 99–­100, 147, 224, 237 prisons and incarceration: COVID-­19, reduction in jail population due to, 213; demographics, 87, 96, 137; discrimination against people with criminal records, 90; disproportionate effect on the poor and people of color, 20, 33, 99–­100; diversion programs as alternative to, 8, 28, 30, 100–­101, 136; Krasner’s lowering of mass incarceration in Philadelphia, 30; as last resort, 23; Louisiana as top state in incarceration rate, 135; Milwaukee County study of racial disparity in, 33; overcrowding, 88; privatization of, 87; prosecutors visiting and communicating with prisoners, 88; public safety as justification for, 135; reform initiative, 21, 56, 87–­89, 106; role in increasing violence, 24; staffing of corrections officers, 87; state departments of correction, annual reports by, 241n4; supermax facilities, 87; U.S. as world leader in prison population, 7, 10, 20, 56, 95–­96 progressive prosecutors, 10–­12, 19–­54; changing the culture and overcoming challenges, 13–­14, 50–­51, 114–­124; collaborative environment created by, 40–­41; communication, open lines of, 40, 115; community engagement and, 33–­34, 38, 123–­124; Criminal Justice Task Forces, establishment of, 123; defining progressive prosecution movement, 97–­105; empathy, need for, 186; envisioning racial justice and equity, 27–­38, 93–­94; executive team

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created by, 115; false confessions and, 196; Foxx’s firsthand experience as, 252–­281; harm reduction as goal of, 34–­35; in-­house training programs and, 22, 27, 32–­33, 37–­38, 47, 58, 116–­117, 119–­121, 156, 202, 203, 272; intersectional leadership, 38–­46, 51; jurisdictional differences among, 98; juvenile justice and, 192, 201–­203; as leaders in criminal justice reform, 8–­12, 19–­54, 113–­114; modeling progressive vision of racial consciousness, 25, 37, 38–­46, 50–­51, 93–­94, 172, 268–­274; modeling racial consciousness, 25, 37, 38–­46, 51; moral courage and integrity of, 42, 46, 51; national and statewide organizations needed for support of, 125–­126; national resources offering support for, 118–­121; outreach to political, judicial, and law enforcement communities, 122–­123; platforms of change and, 55, 59, 96–­97; resistance to, 20, 30, 49, 91, 93, 97, 105–­114; social media scrutiny of, 9, 16, 91; staffing changes upon taking office, 49, 106, 117–­118; strategies to manage opposition, 121–­124; training and education of, 119–­121; visualization of reform by, 30–­31, 50–­52; zero tolerance of racist conduct, 28. See also culture, transformation of; five pillars for criminal justice reform; race-­ conscious criminal justice reform prosecutorial misconduct: election loss attributed to, 105; wrongful convictions resulting from, 101–­102, 148–­149, 194–­195, 264 Prosecutor Impact (PI), 120, 124 Prosecutors Alliance of California, 126 prosecutors’ offices: accountability of, 6–­7, 10, 12, 15, 34, 46, 52, 75, 95, 97–­98, 159, 215; acknowledgment of racial bias, 159–­162, 213; breaking with the past, 23–­27, 36, 47, 57, 105–­106; complicity in

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and inaction against police violence, 2–­4, 20, 22, 104, 108, 265, 267; culture of, 50–­51, 95, 184, 202, 203, 264, 274–­ 275; as data-­driven organizations, 230–­ 231, 234; direct-­file of charges against juveniles in adult court, 175–­176; failure to define vision of practice, 24; incentive structure, need to reform, 36, 48; justice as goal of, 23, 95; new hires offering new perspectives in, 40; number of, 56; performance measurement in, 234–­237; promotions, basis for, 48–­49; race of prosecutors, 152, 156, 159, 257, 263; reaction to George Floyd’s murder, 6, 17nn9–­10; recruitment and hiring, 37, 156, 159, 266; success based on just outcomes and use of diversion programs, 203, 271, 279–­280; success based on rate of convictions, 24, 95, 268, 271; transparency’s importance, 22, 33; typical caseloads, 76; vertical prosecution in, 246n52; women of color as DAs, 91, 108–­109. See also chief prosecutors; data collection and use; discretionary decision-­making; juvenile justice; progressive prosecutors; prosecutorial misconduct; race-­ conscious criminal justice reform prostitution, diversion program for individuals engaged in, 101 protests in reaction to police brutality and racism, 4–­5, 19–­20, 22, 28, 214, 253 Proud Boys, 6, 108 Public Defender Association (PDA), 73 public defenders: new chief prosecutor’s need to establish relationship with, 122–­123; reaction to George Floyd’s murder, 6; Snowden as, 132–­136, 143–­ 144 public health: response to mental health, 57–­58, 64–­75; trauma and victimization affecting, 188; violence as issue in, 77

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public safety: conservatives labeling progressive prosecution as crisis in, 30; as justification for incarceration, 135; as priority for prosecutors, 93; racism and, 141; redefining, 270 punitive culture of United States, 56, 68, 88, 90–­91, 255 race-­conscious criminal justice reform, 7–­ 10, 14, 19–­54, 159–­162; backlash to, 43–­ 46; call for abolition of present system, 7, 20–­21; collaboration with affected communities, 22, 32–­34; data collection and use to improve, 216–­219; dismantling present operating system, 36, 91–­92; five prongs for prosecutorial reform, 31–­38; in juvenile justice, 193–­204; necessity of, 21, 58, 213–­214; proximity to be effective problem-­ solvers in, 185–­192, 202–­203; visualization by chief prosecutors of, 30–­31. See also accountability; chief prosecutors; progressive prosecutors; training and education; transparency race-­switching as strategy to overcome implicit racism, 185 racial anxiety, 155 racial disparity: in Cook County criminal case data, 277; data collection and analysis as step to remedy, 216–­220; film 13th shown by prosecutors, 260; imprisonment numbers, 8, 96, 137, 139; justice system reform needed to address, 19, 21, 213–­214; in juvenile justice, 171–­172, 175–­182; in plea-­bargaining, 150–­152; police killings of suspects, 1, 104; in poverty, 140; pretrial detention and, 99–­100; prosecutors’ acknowledgment of, 27, 36, 96, 106–­109, 159–­162, 213; in school discipline, 190–­192; in sentencing, 277; in social programs, 140–­141; in traffic stops, 261–­262, 278. See also implicit racism

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racial equity and fairness: attainment of, 141; in bail setting, 148; in charging, 146; chief prosecutors’ modeling of, 38–­46, 51; chief prosecutors’ vision of, 27–­38, 50–­51, 93–­94, 172; data collection as way to promote, 47, 216–­219; demand for, 5; as driver of safety and justice, 23; five prongs to prosecutorial reform for, 31–­38; individuation as strategy for, 161; in jury selection, 156; masking racial cues during screening, 161; open file discovery for, 150; in plea-­bargaining, 152; in postconviction litigation, 159. See also race-­conscious criminal justice reform racial terrorism and lynchings, 83, 104, 140 racism: attorneys as complicit in, 92, 259; Black Codes and caste system of American South, 138–­139, 141; against Black women chief prosecutors, 91, 108–­109, 259; death penalty and, 83; defined, 137–­138; disenfranchisement of people with felony records and, 90; explicit, 177, 182; investigation of allegations of, 27–­28; mistrials due to, 28; nonunanimous verdict and, 158; prosecutors as complicit in, 265, 267; protests in reaction to police brutality, 4–­5, 19–­20, 22, 28, 214, 253; of St. Louis police officers, 109; Snowden seeking plea deal on behalf of client Jerry and, 134–­135; structural, 19–­20, 255. See also implicit racism; racial disparity; systemic racism Ramos v. Louisiana (2020), 157–­159 Ramsey County Prosecutor’s Office, 105 Rand Corporation: on analytic capacity, 226; on case management systems, 226; on prosecutors’ offices partnering with researchers to analyze data, 227; prosecutors’ workshop on data collection and use, 222

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recidivism, 88–­91, 151, 184 Reconstruction era (1865–­1877), 138 “red flag laws,” 81 reentry: budget support for, 88; clemency for LWOP offenders and, 84; “no return” policies, 57, 89–­91; “Re-­entry Simulation” (IIP), 121; Statewide Reentry Council (Washington), 90 Reid Technique to extract confessions, 195 reparations, 92, 93 Reshaping Prosecution. See Vera Institute of Justice resistance to change. See backlash against prosecutorial reform; progressive prosecutors restorative justice, 76, 133, 172, 236 retribution, 23, 133, 199–­200 Rice, Tamir, 105 Richardson, Kevin, 149 Riehlmann, Michael, 148 Rollins, Rachael, 100, 106–­107, 111–­112 Roorda, Jeff, 109–­110 Russ, Margaret, 47 Sacramento District Attorney’s Office, 102 safe communities, 5, 93. See also public safety St. Louis Circuit Attorney. See Gardner, Kim St. Louis Police Department, 109 St. Louis Police Officers Association, 109, 110, 259 Salaam, Yusef, 149 Salazer, Tory Verber, 27 San Diego District Attorney’s Office: data collection and analysis staff in, 227, 247n67; in Prosecution and Racial Justice Program of Vera Institute of Justice, 236–­237 San Francisco District Attorney’s Office, 29; community engagement and, 27; data collection and analysis staff in, 227, 247n66; data dashboards in, 231;

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intelligence-­driven prosecution in, 239; pretrial detention and bail system in, 100; public disclosure of case management data by, 233; Sentencing Planning program, 236 Santana, Raymond, 149 Satterberg, Dan, 13, 39, 55, 57–­60, 101, 260; story of sister Shelley’s drug abuse, 72 school discipline: increase in, 210n115; racial disparity in, 190–­192 school-­to-­prison pipeline, 190–­191, 255 Schuren, Alyssa, 120 Scott, Rick, 45, 103 Seattle Clemency Project, 84 “Seattle Is Dying” (TV program), 68 self-­defense, 145–­146 sentencing: conviction review for fairness, 83–­84; data collection and use (sentencing commissions’ reports), 240–­241n3; of drug offenders in Washington state, 66–­67; fairness and equity in, 57, 119; life sentence without possibility of parole (LWOP), 84, 103–­ 104, 157, 174, 201; racial disparity in, 277. See also death penalty; diversion and deflection programs Servicemen’s Readjustment Act (G.I. Bill 1944), 140–­141 sexual violence: delinquent girls as victims of, 180–­181; Foxx as victim of, 256. See also domestic violence Shabazz, Hakim, 157 shame as factor in violent crimes, 78–­79 Shapiro, Josh, 43–­44 shoplifting, felony threshold for, 101, 262 Sixth Amendment, 75, 158 slavery: dehumanization and, 178; history of, 91–­92; Thirteenth Amendment allowing involuntary servitude as punishment, 138–­139 Smollett, Jussie, 108, 112, 125, 260 Snowden, William C., 14, 133; background of, 135–­136; as New Orleans public

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defender, 132–­136, 143–­144; plea deal for Black client Jerry and, 133–­135 social distancing arrests, 37 social media. See media and social media Social Security Act (1935), 140 Southern Poverty Law Center, 108 special prosecutors appointed to investigate Black women DAs, 112–­113 Starr, Kenneth, 167 state laws: License to Work Act (Illinois 2020), 278; police misconduct and brutality, reduction in, 128n28; prosecutors required to collect and report data, 219, 233; “red flag laws,” 81; vagrancy laws, 139 statewide prosecutor organizations, 125 Stemen, Don, 15–­16, 213 stereotypes, 152, 154–­155, 177–­178, 184–­185. See also implicit racism Stevenson, Bryan, 92 structural racism, 19–­20, 255 Stuckey, Willie, 195 substance abuse. See addiction and substance abuse Suffolk County District Attorney’s Office. See Rollins, Rachael suicides and suicidal ideation, 64, 81 suspended licenses, 61–­62, 277 systemic racism, 92, 137–­141, 182–­185, 255, 259, 275, 276, 279 Tampa, examination of racial and ethnic disparities in, 218–­219 Taylor, Breonna, police killing of, 2–­3, 19, 29, 213, 268 Taylor-­Thompson, Kim, 1, 15, 167 Texas Department of Public Safety, 107 The Management Center (TMC), 119–­120 13th (film), 260 Thirteenth Amendment, 138–­139 Thompson, Anthony C., 1, 12, 19, 114 Thompson, John “JT,” 148–­149 Thompson, Ken, 157

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Three Percenters, 6 tion and dissemination of data, 219, 245n47; on prosecutors’ performance Three Strikes cases, 83–­84 measurement based on data, 234, 237 Tisaby, William, 109 US Attorney for the Eastern District of “tough on crime” policies, 24, 91, 98, 135, Pennsylvania, 107 254 US Attorney’s Office for District of Cotraffic stops and driving on suspended lumbia, 102 licenses, 61–­62, 261–­262, 277–­278 US Department of Justice: on juveniles training and education: from American Prosecutors Association (APA), 125; charged as adults, 173; on plea-­ community engagement as part of, bargaining factors, 150–­151 32–­33, 37–­38, 116–­117, 203; in-­house US Supreme Court: Black jurors eliminated from jury selection, 154; Bostic training programs for progressive case declined by, 167; false confession prosecution, 22, 27, 32–­33, 37–­38, 47, 58, 116–­117, 119–­121, 156, 202, 203, 272; cases, 195–­196; juvenile justice cases, from Institute for Innovation in Pros174–­175, 177, 188, 193; nonunanimous ecution (IIP), 121; from National Disjury verdicts, 158 trict Attorneys Association (NDAA), 124; of progressive chief prosecutors, vagrancy laws, 139 119–­121; from Prosecutor Impact (PI), Vance, Cyrus R., Jr., 236, 238, 247n68 120; from The Management Center Van Dyke, Jason, 105, 252–­253 (TMC), 119–­120 Vera Institute of Justice: case management systems and data collection and transparency: criminal procedure reform analysis, 225; Milwaukee County study and, 76–­77; data collection and use to of racial disparity in incarceration, improve, 47, 216–­220, 274–­278; of pros33; Prosecution and Racial Justice ecutors, 46, 48, 52, 97, 214, 215, 268; public data portals providing, 233–­234, Program, 218, 236–­237; Reshaping 276; in race-­conscious criminal justice Prosecution, 118–­119, 124, 220, 242n15; reform, 22, 33; in sentencing, 75–­86 Snowden as New Orleans director of, 136 trauma: in adolescents, 188–­192, 256; Vermont, voting by incarcerated people communities suffering from, need in, 90 to address, 273; post-­traumatic stress Verrilli, Donald, 167 disorder (PTSD), 189–­190 vicarious liability of adolescent group “trial dogs,” 50, 54n55 crimes, 196 Trump, Donald, 25, 44, 97, 113 trust in justice system, 4; loss of, 94; need victims: criminal justice reform and, to build, 93; racial anxiety and, 155; ra84–­86, 107; as prosecutor’s clients, cial distrust, 28; wrongful convictions, 23; from same neighborhood as the remedy of, 102 accused, 189; Victim Recovery Fund, Turco, Thomas A., III, 107 advantages of, 64 video footage: of George Floyd’s murder, Urban Institute: on data literacy of pros1, 3–­4 ecutors, 229; on metrics for prosecuViolation of the Uniform Controlled Substances Act (VUCSA), 69 tors, 223–­226; on prosecutors’ collec-

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violence: community response to, 77; death penalty abolition, 81–­83; domestic violence, 79–­81; gun violence events, predictive factors and prevention of, 78–­79; prosecutors’ need to understand and treat as public health issue, 77; sexual, 180–­181, 256; urban violence, 78–­79. See also police misconduct and brutality Virginia Progressive Prosecutors for Justice, 126 voir dire practices, 156 Walz, Tim, 5 War on Drugs, 65–­66, 72, 270 Washington state: clemency in, 84; death penalty abolished in, 83; failure-­ to-­appear warrants in, 86; marijuana legalization and taxation in, 71; sentencing of drug offenders, 66–­67; Statewide Reentry Council, 90; Three Strikes sentencing in, 83–­84

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Webster, William, 167 Western, Bruce, 89 When They See Us (miniseries), 149 white supremacy and white supremacists: Black Codes in Southern states and, 138–­139; Capitol insurrection (January 6, 2021) and, 6; George Floyd killing as tipping point for, 136; in Northern states, 139; protests against Kim Foxx and, 108, 261; racial terrorism and, 140 Williams, Ryan, 45 Wilson, John Paul, 179 Wisconsin’s statewide PROTECT case management system, 225, 246nn57–­58 Wise, Korey, 149 Wright, Ronald, 219, 220, 221 wrongful convictions, 101–­102, 112–­113, 148–­149, 194–­195, 264 Yates, Sally, 167 zero tolerance of racist conduct, 28 Zimmerman, George, 104, 267

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