As the coronavirus disrupts the criminal justice system and most other key aspects of American life, what is the role of prosecutors, who often seek to put more people behind bars?
That was the tough question posed on Thursday to an online panel convened by three conservative groups: Right on Crime, the R Street Institute and the American Conservative Union.
There was no comprehensive answer for what Kentucky Attorney General Daniel Cameron called the “public safety challenge of a lifetime.”
Trying to balance the public’s desire for law and order with the need to prevent the virus spreading quickly in prisons and jails requires some prosecutorial “thinking outside the box,” said Cameron, the first African-American ever elected to statewide office in Kentucky and a former counsel to Senate Majority Leader Mitch McConnell (R-KY).
Prosecutors can help sort out which inmates are suitable for release if they consider several factors, including conditions behind bars, the inmate’s criminal record, public safety and the views of crime victims, said District Attorney David Sunday Jr., a Republican from York County, Pa.,
Sunday noted that as an elected official, he must work to “protect the rights of citizens, whether they are inside [prison] or outside.”
Already serving as a partner in a local coalition to promote the re-entry of prisoners into society, Sunday said that before the coronavirus pandemic reached full force in the last few weeks, he had been active in offering some suspects pretrial diversion, or “identifying those who don’t need to be in a prison cell.”
Sunday devotes much of his time to helping determine which defendants would be most suitable for services like mental health or addiction treatment.
“I never imagined this is what would keep me up at night,” he said. “It’s not like you see [prosecutors] on TV.”
Moderating the discussion was Brett Tolman, U.S. Attorney in Utah under President George W. Bush, who since leaving the federal government in 2009 has become a criminal justice system reformer.
Tolman described a prosecutor in the high-crime city of St. Louis who also took part in a pretrial diversion program, meeting with suspects and their family members before criminal charges were filed to discuss alternatives to pressing cases that would lead to prison terms.
The prosecutor, whom Tolman did not identify by name, was pleased that crime in the area went down when many cases were handled that way.
The final panelist was Matthew Whitaker, a former U.S. Attorney in Iowa who later served as Acting U.S. Attorney General under President Donald Trump, between Trump’s initial Attorney General, Jeff Sessions, and current A.G. William Barr.
Whitaker agreed with the first speakers that during a time in which “real people are suffering,” prosecutors should “be smart” and “use our discretion” to prevent unnecessary incarceration during the pandemic.
During his brief time heading the Justice Department, Whitaker was involved in negotiations to pass the federal First Step Act, which panelists praised for its emphasis on rehabilitating federal prisoners and expediting the release of many with unduly heavy sentences for drug offenses.
Whitaker said the drug treatment programs and other rehab projects enhanced by the law are likely to reduce the nation’s high recidivism rate.
Thursday’s discussion was held during the annual National Crime Victims’ Rights Week, which ends on Saturday.
The panelists agreed on the need to involve crime victims in decisions on which defendants should be incarcerated. “We must have victims at the table,” said Kentucky’s Cameron.
Cameron cited Rob Sanders, a Kentucky district attorney who objected to many pardons issued by former Kentucky Gov. Matt Bevin to child molesters, rapists and murderers as he left office last fall.
Sanders was quoted as saying, “I feel especially bad for the victims that have been victimized all over again, that didn’t even get so much as a heads-up or a warning from the governor’s office or anybody in state government.”
See also: “Don’t Leave Crime Victims Out of COVID-19 Conversation,” April 23, 2020 The Crime Report.
One worry now is that the justice system chaos caused by COVID-19 will have the effect of derailing ongoing criminal justice reforms, said Pennsylvania prosecutor Sunday.
“We have lowered both the prison population and crime,” Sunday said about justice system changes that took place before the pandemic, “but progress may come to a halt. My concern is that we will go backwards. We must make sure that doesn’t happen.”
Among the groups that sponsored Thursday’s discussion, Right on Crime calls itself “a national campaign to promote successful, conservative solutions on American criminal justice policy.”
R Street says it works “across the ideological spectrum to provide policymakers with reforms that prioritize human dignity, public safety, due process, individual liberty and fiscal responsibility.”
The group’s Arthur Rizer and Lars Trautman wrote last week in The Crime Report that , “the future of the criminal justice system seems up for grabs.”
The American Conservative Union cites the “growing conservative consensus that our criminal justice system is badly broken, and that there are proven, conservative reforms that will keep the public safe while restraining costs.”
Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report.