For reasons that are both obvious and troubling, Fordham lawprof John Pfaff’s opening description of newly elected Suffolk County District Attorney Rachel Rollins notes the two foremost characterizations of the moment, that she’s Boston’s first black female prosecutor. She’s not the first prosecutor who fits that description, but other “reform” prosecutors, like Darcel Clark in the Bronx, have proven to be huge disappointments.
So we keep trying, noting immutable characteristics as if Larry Krasner wasn’t a white male former criminal defense lawyer doing some serious reform in Philly. But Rollins ran, and was elected, on a distinctly reform platform, that she would decline to prosecute 15 offenses.
- Shoplifting (including offenses that are essentially shoplifting but charged as larceny)
- Larceny under $250
- Disorderly conduct
- Disturbing the peace
- Receiving stolen property
- Minor driving offenses, including operating with a suspend [sic] or revoked license
- Breaking and entering — where it is into a vacant property or where it is for the purpose of sleeping or seeking refuge from the cold and there is no actual damage to property
- Wanton or malicious destruction of property
- Threats – excluding domestic violence
- Minor in possession of alcohol
- Drug possession
- Drug possession with intent to distribute
- A stand alone resisting arrest charge, i.e. cases where a person is charged with resisting arrest and that is the only charge
- A resisting arrest charge combined with only charges that all fall under the list of charges to decline to prosecute, e.g. resisting arrest charge combined only with a trespassing charge
There is wiggle room built into this position for those deemed especially deserving of prosecution, and for alternative way of addressing some of these offenses, but the default position would be not to prosecute. Will this work?
Pfaff, whose position is that excessive power in the hands of prosecutors has been the primary driver of mass incarceration addresses the objections to Rollins’ approach.
The first objection is that such a blanket policy would lead to increases in those crimes because people will think they can commit them with impunity. The second, less obvious concern, one raised more by legal academics than the public, is that such blanket refusals to prosecute violate the separation of powers. The executive branch, the argument goes, is usurping the legislature’s right to define crimes.
Both reactions are incorrect and reflect abiding misperceptions of how criminal justice operates.
These aren’t frivolous questions, particularly from the perspective of prosecutors possessing too much power. Rather, the shift isn’t in taking power away from prosecutors, but electing prosecutors who will maintain vast authority but wield it in a politically preferable way. Rather than reduce their power, elect prosecutors who will use their power for what reformers deem good rather than evil.
The first overstates the need to rely on the criminal justice system to reduce crime—an attitude that has led us to underfund and underutilize more effective noncriminal justice responses to violent and antisocial behavior while continuing to pump resources into law enforcement.
A foundational tenet of reform is that we turn everything into a crime and address every person accused of a crime by the bludgeon of the courts and incarceration. It’s an expensive and ineffective way to address problems like addiction, homelessness and mental illness, which are the primary cause of many lesser offenses that end up filling jails. While Rollins’ approach, diversion essentially, is holistic, it requires an infrastructure of drug rehab, housing and medical care.
And as Rollins acknowledges, not every crime is committed because of people suffering from societal problems. Sometimes, people just do bad things, and leave innocent victims in their wake. Whether she will be able to make the mix of diversion and prosecution work will have to be seen. Whether her good intentions toward the accused will be sufficient to overcome the structural obstacles will have to be seen.
And yes, whether Boston devolves into a hellhole of petty crime will also have to be seen. Theory is fine, but people are going to do what they do. Even if Rollins’ plan is theoretically sound, without beds for rehab, or defendants interested in ending their addiction as opposed to finding their next fix, it’s not going to work. The question isn’t whether we would do better to provide alternatives to incarceration, but whether people will make use of those alternatives to change their lives. We can build it, but they might not come.
But the second objection, separation of powers, isn’t so easily dismissed.
The second puts too much emphasis on the separation of powers and too little on how our history of racial segregation complicates the question of who should define our criminal laws. Many of the problems with our criminal justice system are tied to the peculiar geography of punishment—the haphazard way that enforcement is scattered across city, county, state, and federal authorities—which is an issue reformers continue to ignore.
This is, to be blunt, a non sequitur. Legislatures are comprised of duly elected folks whose job it is to pass the laws upon which society functions. The chief executive then gets to veto or sign, etc. And then we have a law. And if the law happens to be criminal, it’s then left to the elected district attorney to execute her duties by prosecuting people in accordance with that law.
I’ve questioned the efficacy of empowering prosecutors to be Super-Legislators, with veto-proof decision-making authority, where they can take a law enacted by all those nice duly-elected legislators and say, “Nah, I don’t want to.”
In response, Pfaff argues that the system produces racist outcomes. While it’s indisputable that there are significant disparate racial impacts in the system, what does that have to do with the separation of powers, or as I prefer to view it, as acquiescing in the excess power of prosecutors, provided they wield that power the way we prefer.
What happens when the next district attorney is elected who uses the power in ways reformers don’t like as much? What happens when the pendulum swings, the next public panic erupts, and the same power is used to crush some disfavored defendants? What happens here, when “threats” aren’t prosecuted, except “domestic violence,” thus conceding that the bludgeon will only be used against selectively politically disfavored defendants? Does this not occur to anyone but me?
If we are a nation of laws, not
men women people, is the solution to ignore, if not circumvent, our structure of tripartite government as long as the outcome suits our goals? It’s a dangerous experiment, undermining the legislative function and empowering prosecutors to be reform demi-gods. Granted, the system wasn’t working well before, but the opposite of bad isn’t necessarily good. Things can always get worse.