Last week The Boston Globe devoted three days to Rachael Rollins, the African-American progressive recently elected by 80 percent of the voters to be District Attorney for Suffolk County, which includes Boston and surrounding towns.
Rollins had won a crowded Democratic primary in September by a strong plurality.
On the front-page of the July 7 edition, veteran court-beat reporters Andrea Estes and Shelley Murphy laid the foundation with a story headlined “Stopping Injustice, or Putting the Public at Risk? Suffolk DA Rollins’ Tactics Spur Pushback.”
The story said Rollins was delivering on her campaign promises, but “some fellow prosecutors,” “some judges,” and “police officials” fear that Rollins is “compromising public safety by letting criminals off the hook.”
On the front-page of the Metro section two days later, columnist Kevin Cullen picked up the theme. The chorus of “some judges who didn’t want to be quoted by name” made a return appearance. “In some cases,” he quoted them as suggesting, “ the DA’s leniency has had a Kafkaesque effect.”
Cullen concluded that the reporters who wrote the Sunday story “Didn’t do a hit piece, as some have complained. They did the DA a favor.”
Finally, last Wednesday’s lead editorial summed things up, adopting the tone of a wise and patient mentor counseling a very new and not outstandingly bright student.
Yes, voters had indicated that the pendulum must swing from Crime Control to Due Process, but since Rollins’ election, it had swung too far. Rollins must “refine” her approach.
Each of the three Globe installments recited its version of a case in which a mentally ill man, believing a woman was filming him, knocked her from her bike, causing serious injuries.
Rollins’ office heard from the victim, considered her statement, weighed the defendant’s absence of a record and his diagnosed mental illness, and broke the felony charge down to a misdemeanor, resulting in a term of probation.
The victim, according to Cullen, “is justifiably furious.”
And all three installments brandished a quote from Rollins as if it were a club. “I represent not just the victim,” Rollins had told the reporters, “but the defendant and the community.”
This was a statement, the editorial said, that “could well come back to haunt (Rollins).”
Certainly it will haunt Rollins if the Globe has anything to say about it.
There’s a very fundamental difference of perspective here, a difference that will affect the future of the whole new wave of “progressive prosecutors” across the country— if their local media take the Globe’s approach.
The fact is, Rollins knows exactly what she is doing; it is the Globe that does not.
They All Come Back
In the final paragraph of his magisterial book, The Collapse of American Criminal Justice the late Harvard Law professor William Stuntz wrote:
The criminals we incarcerate are not some alien enemy. Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals’ neighborhoods. Neither side of this divide is “them.” Both sides are us. Democracy and justice alike depend on getting that most basic principle of human relations right.
Rollins believes, with Stuntz, that the prosecutor has to consider the defendants as members of the community. She made no secret of this; so 80 percent of the voters apparently agree with her.
The Globe sees that position as a betrayal: leave the defense to the defenders, that’s their job in the adversary system.
The deep roots of these positions are visible in a law review article written 50 years ago by the late Herbert Packer.
It was Packer’s position that all choices about criminal justice can be found somewhere along a line between two poles. At one end stands the Crime Control Model, emphasizing efficiency and factual guilt, and trusting officials with a margin of error. The Due Process Model, emphasizing procedural protections and the oversight over the power of authorities, stands at the other.
Packer’s two Models have been the common currency of debates about criminal justice ever since he described them. Due Process adherents say the Crime Control process is an assembly line; Crime Control believers say that the Due Process system is an obstacle course. You see Packer’s two Models in everyday coverage all the time.
Consider the Globe headline describing our choice: justice or public safety.
But in a later—less well-known—article, John Griffiths, then a Yale law professor, demolished Packer’s dignified edifice. Packer’s two Models, Griffiths showed, were really only one Model, a unified “Battle Model” that conceived of criminal justice as a zero sum struggle between an irreconcilable state and individual, in which one side wins—and one side loses—everything. When the state wins, the defendant disappears.
The only difference between Packer’s two Models, Griffiths pointed out, is which side holds the balance of advantage in the contest: how is the deck stacked?
How do we know this? Well, Griffiths said, let’s look at another institution in society which hands out discipline and punishment on a regular basis: the family.
The key distinction is that in the Family Model the punishment is handed out on the assumption that the disciplinarian parent and the punished child will eventually reconcile.
There’s the difference between Rollins’ view, the view of the community that elected her, and the dire warnings of the Globe and its anonymous informants.
The Globe’s essential point—although it can’t bring itself to state it in so many words—is that when push comes to shove, and the victim wants it, the longest sentence is the best sentence.
Advocate for anything else, and the Globe reserves the right to make you pay a price.
Rollins and her community know that when they send the defendants away, the defendants are leaving spouses, mothers, and fathers and children behind in the neighborhood.
Besides, Rollins and her community know that the defendants all come back.
The collateral damage to the families and the future dangers presented to the community when an untreated, unskilled, unemployable, traumatized, inmate re-enters the community after extended years of incarceration are things that Rollins and her voters are determined must be taken into account.
This isn’t bleeding heart coddling; this is simply facing the facts.
John Griffiths pointed to a moment in history when his Family Model of criminal process was actually attempted: the juvenile court reform movement of the early 20th Century, with its focus on the best interests of the child.
That juvenile court reform movement collapsed, Griffiths concluded, because “it was an idea imposed artificially upon an unchanged Battle Model substratum . . . A rhetorical abstraction of love was superimposed upon a reality of indifference, hostility, and ostracism.”
The movement’s result was a juvenile process that was simply the criminal process minus protections for the accused.
You can’t blame court beat reporters like Estes and Murphy for mobilizing their sources; contacts with courthouse insiders are their stock in trade.
But the Globe as an institution should recognize that by providing an uncritical conduit for the “judges who did not wish to be quoted by name” the paper risks becoming the Pravda of Griffiths’ “Battle Model substratum.”
Judges in Massachusetts are protected by life tenure. Their Code of Judicial Conduct prohibits comment on impending cases, and, presumably, on the legion of impending cases a prosecutor may bring.
Nothing justifies granting these people anonymity. The “some judges” cohort is being allowed to harness the prestige of the judicial office while violating the rules of judicial conduct.
A close examination of any one of the horror stories these shadowy figures offer might have some merit, but the automatic relay of their allegations of “Kafkaesque” effects gives them the last word.
These are not neutral experts; this is a resistance movement. Its furtive spokesmen are the same people who have produced Kalief Browder cases on an industrial scale.They are where mass incarceration came from, and they don’t want change.
The fact that our system employs adversary trials as its method of fact-finding does not mean that it is the role of a prosecutor to treat defendants as non-persons. The point of the adversary system is that we need advocates to present the facts of the case to a jury that acts as proxy for the community. It is not that one advocate has to seek the worst for a defendant while the other seeks the best.
What is at stake here is not some detail to be “refined” or re-calibrated and moved a millimeter or two up or down the Crime Control/Due Process axis: this is a contest between two visions of criminal justice.
In Rollins’ neighborhood vision, accused people remain members of our family even when punishment is appropriate.
They not only come back; we welcome them back; and we do what we can to see them succeed, for their good, but for our good too.
Opposing this, with the Globe’s unwitting assistance, is the courthouse regulars’ vision, where the accused are The Other, and the goal is simply to ostracize them: send them away for as long as possible and then …..well, who cares?
William Stuntz believed that: “[t]he [criminal] justice system stopped working when a particular kind of local democracy—the kind in which residents of high-crime neighborhoods shape the law enforcement that operates on their streets—ceased to govern the ways police officers, prosecutors, and trial judges do their jobs.”
We are at that moment again. Rollins and her voters want to go one way, the courthouse regulars want to go another.
Local media will play a role: they should consider that role carefully.
[See also: Boston DA Rollins Under Fire for Dropping Cases, The Crime Report, July 8, 2019]
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.