It’s long been recognized that prosecutors are part of the problem. They hold too much power over the system, as a by-product of mandatory minimums, based upon charging choices that constrain a judge’s authority to sentence as she sees fit. And then there’s the deference problem, that judges acquiesce to prosecutorial demands because they’re the good guys on the side of truth and justice.
And it’s long been recognized that much of the system that’s gone terribly awry, from mass incarceration to gross racial disparities, happens at the hands of prosecutors. But it wasn’t until Fordham lawprof John Pfaff’s research that we learned that prosecutors played a pivotal role in mass incarceration by increasingly pursuing felony charges, with their higher sentences.
Pfaff showed that many of the favored tropes about the system, the myth that the overload is caused by non-violent first-time drug offenders, for example, were false. If we repealed laws criminalizing drugs tomorrow, it wouldn’t empty the prisons. Most crimes are “violent,” and Americans remain convinced that violent criminals must be put away for life plus cancer.
In an effort to counteract decades of indoctrination into the necessity of “tough on crime” laws and punishment, ever-increasing sentences and the stoking of fear that anything less risks an epidemic of rape and murder, the latest solution is to challenge elected prosecutors by electing lawyers who are progressive in approach, against knee-jerk incarceration, open to alternatives and accepting of long-argued positions about cash bail, the death penalty, drug rehabilitation.
Or to put it another way, prosecutors should fix what courts and legislatures have failed to fix.
Is this the right solution? The video, created by Brooklyn Defender Services, is generously directed at the malleable minds of the progressive segment of the public, since it’s an appeal to emotion devoid of substance.
Still, what district attorneys say in public and what they and their staffers do in the courtroom could be worlds apart, and few might ever know. Legislators can be held accountable to a voting record, but much of what prosecutors do goes unrecorded. “A lot of the information we care about — how prosecutors use their extraordinary discretion — is not being captured in any way whatsoever,” said Udi Ofer, who runs the ACLU’s national effort to elect new prosecutors.
Prosecutors who run as Democrats and claim progressive leanings, such as Cy Vance in Manhattan and Brooklyn’s Eric Gonzalez, are under fire for claims that they fail to keep their campaign promises, their public pronouncements, in the trenches. They are still demanding needless cash bail, prosecuting turnstile jumpers and weed smokers in huge volumes, most of whom are minorities. Groups of well-intended non-lawyers like the new Court Watch NYC plan to sit in courtrooms and report back on prosecutors.
In New York, the bail set by a judge is readily available online. The only way to determine other information, such as racial disparities in what bail DAs request or how prosecutors influence a judge’s decisions, is to sit there, says Alyssa Aguilera, an organizer with VOCAL-NY, a community group that helped establish Court Watch NYC.
“Today two people arraigned in Manhattan for dancing on the subway,” the group tweeted during a two-week pilot test this winter. And, “Last night in Brooklyn: DA asked for $1500 bail on someone accused of stealing 4 bars of SOAP.” One of their tweets includes Vance’s Twitter handle with a string of eyeball emojis.
Whether this will work to hold prosecutors to their promises, and whether their promises of change are as good an idea as their proponents believe, remains to be seen. One of the concerns that arises is that to balance out the concern about racial disparities in bail, prosecutors will demand bail for white defendants rather than not demand bail for black defendants. Unintended consequences have a way of happening in the system. Was that what they were aiming for?
The idea of using court watchers to keep tabs on the system is nothing new. They’ve been around for years, and eventually come to realize that court is mostly boring and banal. They tire quickly and show up rarely, if at all. Most of the time, there’s nothing to see. Even when there is, they lack the information necessary to understand what they’re watching. Good intentions aren’t a substitute for a rap sheet and complaint.
The focus here is on prosecutors, electing the ones who will effectuate the reforms that legislatures have failed to do, circumventing the laws that have been enacted, and most significantly, compensating for the failure of judges to fulfill their roles to oversee, limit the power and discretion and safeguard the constitutional rights of defendants. If legislatures won’t do it, if judges won’t do it, then elect prosecutors who will and send in watchers to make sure they do.
It may well be argued that this goal-oriented approach to reform is necessary, where the people in government charged with certain policy responsibilities are supplanted by other government officials whose responsibilities are the execution of the laws that embody those policies. The system isn’t working now, so something must be done. Since prosecutors wield enormous power, are pivotal in decision-making and are elected by the public, they offer an opportunity to fix with one elected official what can’t be easily fixed with the rest of government.
But there is always a concern about the unintended consequences of making one individual, an elected prosecutor, a Super-Legislator and Super-Judge who is empowered to wield unchecked power to achieve certain goals. Pfaff identified excessive prosecutorial power as the root of many of the problems we’re trying to fix. Is the solution to give them even more power to ignore laws, circumvent courts, tie judges’ hands, but in the other direction?
Many of the goals pursued by this push are ones I’ve advocated for, and to some extent, it’s hard to complain that the end-game isn’t a good thing. But what this could create is a monster outside the control of the other branches of government. Isn’t this the monster we had before, only this time it’s our monster, and maybe even more powerful than the one that was too feared before?
While most of the goals currently pursued are part of the reforms pushed by defense lawyers for a very long time, there are also potential goals, such as harsher sentences for disfavored offenses like sexual assaults, domestic violence, gun crimes, that are also on the dockets. Will the “good” prosecutors be better than the “bad” ones, or only different? And if they are elected, and are as progressive as they claim to be, will the system be better off for it?