Beware of the Backlash Against Reform Prosecutors

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Rachael Rollins

Suffolk County DA Rachael Rollins via Twitter

A month before Suffolk County (Ma.) District Attorney Rachael Rollins was elected to become Boston’s District Attorney—and the first woman to hold that post—she announced that she would not prosecute 15 petty offenses.

They range from charges such as “minor in possession of alcohol,” which needlessly suck normal teenagers and young adults into the criminal justice system, to “disorderly conduct,” a statute so broad that it criminalizes whatever a prosecutor feels like it does.

Now, the National Police Association (NPA), a little-known nonprofit formed in 2017, has filed a bar complaint with the Office of the Bar Counsel in Massachusetts in a presumed attempt to strip Rollins’ law license.

The complaint itself is unlikely to succeed, as it fails to clearly state how she violated the Massachusetts Bar’s ethics rules. But it is worth highlighting as a significant attempt to close the main “safety valve” against American mass incarceration: reform-minded elected prosecutors.

The number of such prosecutors is growing. Last fall’s midterm elections saw the election of prosecutors from both parties committed to reform, in states ranging from Texas to Missouri and Alabama.

For those hoping for a significant shift from the failed “tough on crime” strategies of the 1990s, this was welcome news. But it’s not surprising to see stirrings of a backlash.

The U.S. is the most incarcerated nation on the planet, due to factors such as racism, the politicization of crime, and a victims’ rights movement born out of carceral feminism.

We also lack a culture of restraint when it comes to criminalization and punishment. Unlike most European countries that leave the drafting of penal codes to scholarly experts, our laws are an inconsistent patchwork created by state legislators who generally know nothing about criminology and do not care to know. (Criminal law is a mere fraction of their work.)

However, head county prosecutors, often called District Attorneys, are interested enough in the dynamics of crime and public safety to make criminal justice their entire jobs. While they may be unfamiliar with the academic literature on sound crime control and public safety tactics, they take a more macroscopic and systemic view of potential crimes than the average police officer.

The reason is baked into their job descriptions.

Ultimately, a beat patrol officer in Chelsea, Mass.,—a town with a population of approximately 37,000 people—has one main directive. When there is probable cause a criminal law has been broken, the officer is to arrest a person, drive him or her to the jail, and give a report to prosecutors about what was observed.

In contrast, the District Attorney of Suffolk County (population approximately 800,000) must decide whether the crime is probable beyond a reasonable doubt, and whether it is in the best interest of the public to use limited resources on that case.

That is not to say that policing cannot or should not be more strategic or preventative. David M. Kennedy, now a professor of justice at John Jay College of Criminal Justice in New York, developed a group violence intervention strategy dubbed the “Boston Miracle,” that was considered responsible for the plummeting of Boston’s homicide rate in the 1990s.

However, the implementation of such strategies by police departments is not bottom-up but top-down—a result of partnerships with police chiefs and other law enforcement leaders.

The U.S. is not about to move to the European model, in which advisory boards of academic experts essentially write state criminal codes in lieu of popularly elected legislators.

We cannot even get states to swallow the Model Penal Code, drafted by the American Law Institute that includes many of America’s most brilliant legal minds.

As such, the closest thing we will get to employing crime expertise to informing criminal justice policy on a day-to-day basis is through our District Attorneys, to whom state legislatures grant nearly unfettered discretion.

This is more or less the conclusion that University of North Carolina Law Professor Carissa Byrne Hessick arrived at in a blog post about Rollins’ petty offense declination policy in September.

In a world of limited resources, District Attorneys cannot prosecute every single crime and petty offense that occurs within their jurisdiction. Instead, they must make decisions on how to use their resources, within the permissive borders of deliberately broad and plentiful criminal laws.

Bill Otis, the Georgetown University law professor whom President Donald Trump nominated to the U.S. Sentencing Commission, and who has been sharply criticized for his pro-mass incarceration views—Slate called him “obsessed with black-on-black crime”—has joined the chorus of Rollins critics.

“If I wanted to make a living being a small time thief, would I not be well-advised to move to Suffolk County?” he said, in response to Prof. Hessick.

But Otis ignored the fact that there are many other statutes Rollins could use to crack down on this sort of behavior, one of them being “organized retail crime,” which can fetch up to ten years in state prison.

It is unfair to suggest that Rollins’ plans amount to ineffective crime control measures or will hurt the interests of crime victims. Instead, she is trying to give people a chance to grow from their relatively harmless mistakes without getting clawed into by the criminal justice system.

The same point needs to be emphasized as other reform prosecutors across the country face criticism from those who want to reverse the nationwide movement for justice reform.

It is often said in reform circles that people are more than their worst moments.

Rory Fleming

Rory Fleming

If a person’s worst moment is shoplifting a shirt, making a mean comment on an internet video game, or shooting up heroin while chemically dependent, perhaps desistance from the behavior should be good enough for all of us.

Rory Fleming is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Rory is a licensed Minnesota attorney and he tweets at @RoryFleming8A. Readers’ comments are welcome.

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