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.
But, but …
I noticed that exact same paragraph.
“This isn’t a violation of the separation of powers because LOOK A SQUIRREL!!!! …as I was saying, it’s racist, so we can move on, and….” Sigh. It’s a three page article defending it’s most important point with a single brush-off sentence.
All it does is to buy into the Solomonic myth: it perpetuates the vain belief that justice will always be fair; that only the guilty will be punished; that all the righteous will go free. By passing that burden onto the Rollins (in her role as Solomon) it saves voters from having to confront any real-life tradeoffs of the system. What a bunch of hooey.
Perhaps there is a connection built in there that eludes me, such as “end justifies the means,” that makes the argument more comprehensible provided one isn’t a slave to logic.
The thing about “systemic” racism is that it’s ingrained in the system at every level, hence the name. It’s not like we can pass the “Systemic Racism Repeal Act of 2018” and fix everything. History has shown us that when stricter laws are passed, the harsher penalties fall disproportionately on certain minorities, but when the laws are relaxed, leniency accrues first to well-to-do whites. This makes the idea that you can thwart systemic racism by concentrating power in the DA’s office rather like a diver carrying an umbrella so as not to get wet.
The thing about “systemic” racism is that it’s a cool phrase that completely obscures any meaningful understanding of how and why the outcomes don’t align with our assumptions. We have lots of phrases like that, wholly unhelpful in fixing anything.
You use quotes but can’t seem to define the term you use.
What exactly is ‘systemic racism’ as you understand it? I’m not woke yet.
It seems about as helpful as people screaming to fix ‘healthcare’.
“Systemic racism” is an undefined term, I agree.
However, that said, how else does one describe a system that routinely produces racist results, in spite of being (presumably) almost exclusively staffed by non-racists, as opposed to being heavily populated by a conspiracy of bigots?
Disdaining descriptive phrases is also pretty cool – but if not the disdained phrase, then what? At least “systemic racism” serves to describe what’s going on, and in a way that doesn’t invite assumptions of shadowy conspiracies. That sort of thinking can only make things worse.
So, if the term on the table is taboo, just what is the rigorous standard by which we judge processes that, while nominally populated by non-racists, that statistically deliver racist outcomes? What’s the logically-sound, and yet easy for the layperson to comprehend, terminology?
TL;DR: If NYPD’s “stop and frisk” policy wasn’t systemically racist, then why was it racist? Who’s the racists in the NYPD who made the policy happen over the objections of good, non-racist cops?
With my apology for the length*, and my regards,
*In my defense, I did hack out 3 rather hefty paragraphs.
Putting aside stop & frisk, as there was an explicit reason and its a poor example, you ask fine questions that get you nowhere. By claiming systemic racism, you make an assertion that means nothing and goes nowhere. It’s like saying the patient is sick without saying what the disease is. So he’s sick? Great. Do we give him antibiotics or take out his spleen? If we don’t know what he’s sick from, we can’t cure him.
As for racism itself, we know there is a disparate impact because we see the outcome of a disproportionate number of black and Hispanic defendants, but disparate impact tells us nothing about the cause of the racism, or if its really racism at all or that’s just the way the numbers pan out. OJ’s point is that if you’re going to use a phrase, then define it. If you can’t define it, don’t ask rhetorical questions to justify your failure. Rather, stop using a meaningless phrase as if it explains anything. Either you say something or you say nothing, and excuses don’t change the emptiness of the phrase.
In general, Pfaff has a good point about the excesses of prosecutorial power being a major driver of mass incarceration. My sense is that he overstates its importance, as if it’s the only issue rather than just one of a number of serious problems, which means he sees fixing prosecutorial excess as the fix for the system.
That said, it seems as if he just mailed this post in, not even making an effort to offer a rational argument.
In fairness, this was published at The Appeal, formerly “In Justice Today” from the Harvard Fair Punishment Project. It’s largely an activist fan mag. While it has an occasional good post, most are assumptive crap intended to appeal to the choir, so it doesn’t take much to get a hallelujah out of them.
Anyone else see the train wreck coming when her policies collide with Massachusetts Victim’s Rights law?
Whoa, that’s an incredibly important point. There appears to be a huge potential conflict with the MA Victims Rights Law. The law presumes that the prosecution will prosecute, but what, as here, if the prosecutor has chosen to decline an entire class of cases despite the victim’s desire to prosecute and the prosecutor having no particularized reason not to? Or will Rollins prosecute those cases where the victim demands it, thus creating a selective prosecution scenario?
“It is an eternal experience that every man who has power is drawn to abuse it; he proceeds until he finds the limits.”
Do Massholes have a pre-existing mechanism with which they can enforce these so-called “victims’ rights”? Here in the State Formerly Known as Golden our electorate, in its infinite wisdom, has twice enacted a “Victims’ Bill of Rights” (first time was a dry run*, but shhh, don’t tell the voters) but the only its name is mentioned in the hallowed holes of justice are when prosecutors can think of no better reason to turn down a counter-offer or when someone in black lace needs a reason to deny bail. Point being, it was an empty promise for all but the poor schlub in the orange tracksuit, for whom it is a nightmare.
In all seriousness, if I had a nickel for every time a prosecutor earnestly said, “Lemme check with my officers,” before agreeing to settle a buy-bust case where the only victim was the secretly marked Jackson forever known as “marked city funds”.