COVID-19 Puts Prosecutors at ‘Center’ of Justice Reform: Paper

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Car caravan protest in Philadelphia. Photo by Joe Piette via Flickr

Prosecutors are playing a key role in reducing incarceration during the coronavirus crisis, and they should use the lessons learned to keep prison and jail populations low after the crisis ends, says the former dean of Washington and Lee University law school.

In a paper introducing the latest issue of the Federal Sentencing Reporter, Nora V. Demleitner argues that many prosecutors have been increasingly pro-active in reducing the number of cases which result in imprisonment, as jails and prisons have emerged as deadly breeding grounds for infection.

“The public health threat COVID-19 presents to those detained in jails and prisons has turned into a case study of prosecutorial authority,” wrote Demleitner, the Roy L. Steinheimer Jr. Professor of Law at Washington and Lee, and current editor of the Reporter.

Demleitner’s paper summed up the work of researchers who published in the April issue as providing, in effect, a roadmap for addressing challenges faced by prosecutors in reducing mass incarceration through changes in sentencing strategy.

The current public health crisis, she wrote, offered a unique opportunity to develop a new evidence-based consensus around the use of imprisonment.

While there is some objection to releasing specific inmates during the coronavirus pandemic, there is almost unanimous support to allow prosecutors to make the case for releasing individuals jailed for low-level misdemeanors, nonviolent offenses, probation violations, and those close to the end of their sentence, Demleitner wrote.

She cited several examples of prosecutors who have already begun to use their formidable powers in the justice system to reverse their traditional roles as drivers of mass incarceration during the health emergency.

In New Jersey, for instance, since March, inmates jailed for probation violations or convicted for low-level offenses have been released, weekend jail admissions have been halted, and short sentences [have been] postponed or cut short.

On one hand, these abilities “highlight the broad authority of prosecutors and their discretionary power.”

But, as Demleitner describes, there is another perspective where the importance and dependence of collaboration in the criminal justice system is weighted heavily on the prosecutor.

In one regional jail in Virginia, where the state prosecutors collaborated with judges and law enforcement to release of everyone who had less than 30 days remaining on their sentence, there was a 25 percent decline in the detained population, resulting in the lowest inmate count in over 20 years.

The prosecutor’s ability to influence other parts of the justice system was crucial to the change of approach, Demleitner wrote.

“Prosecutors who have built a collaborative network with judges and wardens, and are widely deemed protective of public safety, should be more able to bring those groups along with them,” she added.

The most pressing question is whether the current decarceration trend will last beyond the end of the crisis.

Demleitner argues that prosecutors can play the principal role by persuading other players in  the system that reducing inmate numbers will not threaten public safety.

“Prosecutors are at the hub of the criminal justice system,” Demleitner wrote.

She added:  “[They] have the community standing and the authority to convene multiple stakeholders, yet the model that drives such conversations remains steeped in criminal law and its enforcement rather than in public health or urban renewal.

“The lens of other policy makers at the center of these conversations, focused on reshaping society more broadly, would bring a different emphasis.”

The paper can be accessed here.

Additional Reading: How Sheriffs Can Drive Justice Reform

Andrea Cipriano is a TCR staff writer.

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