Published 8: 42 PM EST Dec 27, 2019
Across the country, a new wave of prosecutors is working to reverse the damaging effects of decades of over-incarceration, attempting to make progress in the face of criticism from the nation’s top law enforcement officials — Attorney General William Barr and Deputy Attorney General Jeffrey Rosen.
Both men have shown a lack of understanding when it comes to prosecutorial reform — Barr in a column written his month in which he criticized “‘social justice’ DAs” and “‘progressive’ judges” and another written last month by Rosen that accused prosecutors of “shirking” their duty.
Their criticism hinges on the belief that the criminal justice system is not broken, “sensible” law enforcement policies have reduced crime and reform prosecutors’ policies risk public safety in their own communities. Barr even made what sounded like a veiled threat, stating during an awards ceremony that if communities don’t start respecting cops (i.e., if they don’t end protests and demands for a more merciful justice system), their police might stop protecting them.
These comments are misleading, incorrect and, more than anything, demonstrate that Barr and Rosen don’t understand the modern prosecutor’s job.
The idea that the criminal justice system is not broken appears to stem from an indifference to historical trends and current realities. Incarceration rates may have begun to tick down, but the United States remains far and away the World’s incarceration leader, with 2.2 million people behind bars. Jails process 10 million admissions every year. And we spend too much to incarcerate too many — at least $80 billion a year. In this country, spending on the very systems Barr and Rosen claim are working, has outpaced spending on education.
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Absent from their vision is how our system punishes the most vulnerable. The median income of adults who end up in the system hovers at less than $20,000 a year for men (and about $5,000 less for women). That’s half the average median income of men who never end up in prison.
Every day, according to 2018 numbers, we keep about 53,000 children incarcerated in this country. And while a white man has a 1 in 17 chance of being sent to prison, those chances grow to 1 in 6 for Latino men and 1 in 3 for black men.
In short, to claim that these systems are not broken shows willful blindness.
Instead of learning from past mistakes, Barr and Rosen continue to call for more of the same. They often credit law enforcement policies of the last few decades with reducing crime — without providing any evidence that mass incarceration works.
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Yes, crime rates fell during the same time period that incarceration soared. But the crime drop has many causes. Studies show that tough-on-crime policies had, at best, a “modest” effect on the decline. Prison growth in the 1990s had a limited impact on crime, but since then the effect mostly disappeared. It is now clear that states with lower incarceration rates achieved just as much public safety as states with higher rates. And other countries got better results with far smaller and more humane prison systems.
In sum, our bloated prison systems cost far more than necessary. And we pay the price not only in tax dollars, but in damage to community trust.
The best results for public safety happen when strong communities cooperate with prosecutors and police and other public officials. In many places, voters have rejected the tough-on-crime mindset. Instead, they put their trust in district attorneys who campaigned to address the imbalances in the system, to correct past instances where the system failed, and to use the discretionary power all district attorneys possess to prosecute fewer people.
Which leads to perhaps their most glaring error.
District attorneys that are catching criticism have listened to the voters. Then they pledged to fix the system and are doing exactly what the voters elected them to do.
All too predictably, Barr and Rosen return to the tired old argument that a prosecutor who cares about reform disrespects victims. Reformers are shifting their resources away from thefts and less damaging crimes precisely because they want to put more focus on firearms and violent crimes. That choice of priorities takes victims seriously.
Moreover, by focusing on diversion instead of prosecution for minor and nonviolent offenses, reform prosecutors can help people address the underlying causes of criminal behavior. That makes today’s crime victims — and their communities — safer in the long run.
Barr and Rosen cast the prosecutor as a tough-on-crime warrior who exercises discretion in a few individual cases, while ignoring larger questions about the health of criminal justice.
Reform-oriented prosecutors were elected to improve criminal justice. They listen to the lessons of history and the values and hopes of their own communities. It requires a peculiar sort of deafness to argue for the same old prison-centered strategy that has proven too costly over many decades.
The best prosecutors are not warriors — either the tough-on-crime type or the social justice type.
The best prosecutors are problem solvers.
Ronald Wright is a professor of criminal law at Wake Forest Law School and a former trial attorney with the Department of Justice.