‘Unwind Machinery’ of Excessive Punishment: Report Tells Prosecutors

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Photo by Clyde Robinson via Flickr

As a new wave of reform-driven prosecutors make their mark across the country, a report released this week outlines a framework that all prosecutors can use to “unwind the machinery of punitive excess, promote equity, and affirm the human dignity of all who are impacted by the justice system.”

The report, “Prosecutors, Democracy, and Justice: Holding Prosecutors Accountable,” sponsored by the Executive Session of the Institute for Innovation in Prosecution at John Jay College, points to major shifts in the idea of what a prosecutor’s role should be in society.

There is a “deep irony” in the expectation that prosecutors should be expected to lead the way, becoming change agents, the report acknowledges. “There is necessarily a reckoning with what it means for prosecutors to play a role in dismantling a system they helped to create.”

Yet change is in the air, and reform candidates for office are “vying to show their commitment to ending mass incarceration and ameliorating other harms associated with the criminal justice system,” said the report, co-written by Jeremy Travis, executive vice-president of Criminal Justice, Arnold Ventures; Carter Stewart, managing director, Draper Richards Kaplan Foundation; and Allison Goldberg, policy advisor, Institute for Innovation in Prosecution.

The report recommends the aspirational goals for prosecutors as these three guiding principles: unwind punitive excess, promote equity, and affirm human dignity.

Prosecutors currently pursuing these goals can face “an enormous challenge” as they run up against resistance in some states. One example given was the result of  State Attorney Aramis Ayala of Florida’s Orange-Osceola announcing she would not seek the death penalty early in her term. “After her announcement, then-Florida Governor Rick Scott removed more than two dozen cases from SA Ayala, the state legislature cut $1.3 million from her budget, and the state prosecutor’s association filed an amicus brief against SA Ayala.”

The report states that “This resistance has been focused, in particular, on women of color. In addition to SA Ayala, Kim Foxx, SA of Cook County (IL); Rachael Rollins, DA of Suffolk County (MA); and other women of color serving as prosecutor have experienced unprecedented retaliation, including personal threats, as they takes strides towards reform.” As of 2015, 95 percent of elected prosecutors were white.

Underscoring this critical debate is the fact that as the elected chief local law enforcement official, prosecutors exercise enormous influence, with “the power to convene, inform, and guide public discourse on criminal justice policy,” said the report.

Reform-minded prosecutors can “leverage empirical evidence, their growing power in numbers as well as their public mandate to resist political pushback and continue their work towards a more just system.”

Specifically, prosecutors, through everyday practice, can affect many, many lives and the public’s perceptions of justice by the exercise of discretion in five domains:

  • Charging. “In the modern reform era, outcomes should encompass a goal of shrinking the justice footprint in order to garner trust and legitimacy, while promoting public safety and equity.”
  • Bail Recommendations. “By confronting the harsh realities of pretrial detention, a reform-minded prosecutor can make a significant contribution to reducing mass incarceration.”
  • Plea Policy. “Reform-minded prosecutors can refine their plea policies in order to ensure transparency and constitutional protections of the accused.”
  • Sentence Recommendations. “Prosecutors should consider what sentence will be the most effective and least harmful for the individual convicted, their family, and their community.”
  • Post-sentence reviews. “Prosecutors play an important role in the decisions of parole boards in those states with indeterminate sentencing systems.”

Beyond the specifics of courtroom action, the report urges prosecutors to see themselves as serving in five distinct capacities: “As CEO of their office, a leader in the jurisdiction’s criminal justice system, a respected voice in times of crisis, a ‘minister of justice’ knowledgeable about the issues of crime, and a leader of the broader justice reform movement.”

The full report, “Prosecutors, Democracy, and Justice: Holding Prosecutors Accountable,” can be accessed here.

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