There can be little question but that her election as a serious reform prosecutor acknowledged her plans to not prosecute a list of offenses that constituted crimes. Suffolk County, Massachusetts, District Attorney Rachel Rollins was up front about it. She campaigned to be the first black female prosecutor and she provided the list of crimes she would refuse to prosecute.
After being elected, but before taking office, she learned that not everyone was going to love her for it.
A group called the National Police Association (NPA) has filed an ethics complaint against Rollins — before she has even taken office. As Carissa Byrne Hessick, director of the Prosecutors and Politics Project at the University of North Carolina School of Law explained on Twitter, the complaint is utter nonsense. It’s based not on any actual ethical violations, but on Rollins’ campaign promise to not prosecute 15 low-level nonviolent offenses, ranging from public trespassing to drug possession.
The complaint wasn’t really a legitimate effort, as much as a press release masquerading as a complaint. And it recognized as much. Just as Rollins was elected by voters who were told of her plans, those whose livelihoods were built on the quick and dirty busts for low-level offenses saw their career prospects dim.
So why would a group such as the NPA be so opposed to Rollins’ proposal? Well, for starters, if police officers stop arresting people for low-level offenses, there would be less for police officers to do, which could well result in fewer police officers. In some jurisdictions, officers are evaluated based on how many stops and arrests they make, mostly because those are easier things to measure than how effective they are at preventing crime.
But the joke here was that Rollins hadn’t yet done anything. She couldn’t. She had yet to take office, had yet to implement any of her proposals. There can be no such thing as an anticipatory ethical violation. Even so, Radley Balko argues that this wouldn’t be an ethical issue, but a policy issue, and since Rollins was elected based upon her policy position not to prosecute 15 offenses, inter alia, it’s entirely vaccuous.
Of course, whether it’s purely policy is unclear. The job of prosecutor isn’t a policy making job, but an executive function. There’s plenty of discretion in the execution of the job, but rejecting wholesale the dictates of the legislature as to what conduct constitutes an offense has some separation of powers problems. Discretion in individual cases is recognized as part of the prosecutorial function; refusal to acknowledge the policy decisions of the legislative branch of government when you don’t like them is another matter.
But there is another question raised by Rollins’ election, and it was expressed by Rollins herself:
Rachael Rollins stood before 50 union employees, many of them black and Latino, and revealed a provocative question she planned to ask prosecutors seeking to keep their jobs when she takes over as Suffolk district attorney.
“Why did you apply for a job where you would be putting people of color in jail every single day?”
This is a bad question. A fallacious question. A dangerous question coming from a person elected to be a prosecutor. It’s little different than asking a criminal defense lawyer why they applied for a job that would put killers and rapists back on the street. It’s that awful a question.
Addressing her new “troops,” she backed off her ridiculous question.
“ ‘I want everybody here to relax,’ ” he recalled her saying. “ ‘Please don’t worry . . . for the most part, everybody is going to be fine.’ People walked out of there feeling pretty good.”
But the “tensions” remain, as she tries to be the reform District Attorney she was elected to be.
During her speech before the union, Rollins, 47, laid out her vision for the office. She pledged to assign more detectives of color to the homicide unit, place more women in top positions, and hire people of all ages — from millennials to seniors — for jobs such as secretary, investigator, and victim witness advocate.
“I want my office to look like this room,” Rollins told the union employees.
There remains a simplistic view of what’s wrong with the system and what will fix it. There are “detectives of color” on the job, and getting a bullet in the head by one of them kills just as well as a detective of, what’s the right way to say it, no color. There have been “women in top positions,” like Linda Fairstein, who was instrumental in coercing false confessions from the Central Park Five.
The narrative of the shallow, that black skin and female genitalia is all one needs to know about a person to recreate the system, isn’t a substitute for hard thought and real answers. Is Rollins just playing her audience, or does she actually not grasp that race and gender isn’t a magic bullet for justice?
Justice Jackson summed up the job of prosecutor “to do justice,” by which he meant that they could play hardball, but not lowball. Rollins’ rhetoric is that she wants to play softball if she’s going to play ball at all. Whether that’s what she really plans to do, however, isn’t yet clear.
“I think she will take an evenhanded approach, notwithstanding some of the rhetoric during the campaign that has some law enforcement people concerned,” Kelly said. “She’s very practical.”
We need prosecutors. There are bad people out there. There are people who do bad things. There are victims. There are even “survivors,” who took the bullet and lived to identify the person who fired it. Sometimes they’re black and brown. Sometimes they’re white. Some are men and some are women. Some are even children.
How we deal with them, what best serves societal interests, should always be subject to scrutiny, but that they exist isn’t in dispute.
The job of prosecutor is to prosecute. They can be unduly harsh in their approach, charging crimes in excess of what the facts can prove, lacking the empathy to fit the punishment to the individual to serve the legitimate goals of sentence. Being dishonest in the presentation, and concealment, of evidence. Ignoring the constitutional rights of defendants. Prosecuting means to “do justice,” not just convict. Sometimes, convicting will be doing justice.
There may be some racist who applies for the job of “putting people of color in jail every single day,” but most apply for the job of prosecuting whoever committed an offense, regardless of their skin color, so that victims don’t suffer the ravages of crime. There is absolutely nothing wrong with that, and if a District Attorney thinks otherwise, she shouldn’t be in the job. We need better prosecutors, but we still need prosecutors.