Prosecutors Condemn ‘Myopic’ Approach to Punishment

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Justice rally in Mineapolis, 2013. By Fibonnaci Blue via flickr

Are so-called “progressive” approaches by prosecutors to crime and punishment going mainstream?

Interviews with 22 state and district attorneys, many of them from smaller jurisdictions, suggest a growing willingness to look for alternatives to incarceration, such as diversion to treatment programs.

coverThe interviews were compiled in a booklet published by the National District Attorneys Association (NDAA), incorporating research from the Center on Court Innovation.

Some of those interviewed have identified as progressives in their communities, but many others are considered mainstream.

The booklet, entitled “To Prosecute,” edited by Emily LaGratta, J.D., a justice reform consultant, provides vivid evidence that many prosecutors outside large cities have accepted the need for change and racial equity.

“Prosecutors [in the past] weren’t thinking about long-term or collateral consequences,” acknowledged Andrew Warren, State Attorney in the 13th Judicial District in Tampa, Fl., one of those interviewed in the booklet.

“That approach is myopic because it only considers one of the goals of the criminal justice system, which is accountability.”

Each interview was conducted with the same standard set of questions, prompting the attorneys to think about how their jurisdiction prosecutes, their biggest obstacles in traditional decision-making, and the areas in which their communities need to improve for greater equality in the justice system.

The authors say that prosecutors have an important role to play: one that includes addressing racial disparity, engaging in local communities to guide change, and improving data tracking.

“These are not ideals; they are mandates,” the authors write, noting that the state and district attorneys they interviewed all agree.

The consensus outlined in the booklet strikes a marked contrast to the “tough on crime” approach taken by federal authorities, who have wasted little time in condemning such thinking as a threat to public safety.

Speaking to the Fraternal Order of Police national biennial conference in New Orleans last year, Attorney General William Barr called the emergence of progressive prosecutors “demoralizing to law enforcement and dangerous to public safety.”

He assailed “district attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”

Rethinking Roles

Nevertheless, many of the prosecutors interviewed in the booklet said re-thinking their role by concentrating on individual circumstances of defendants rather than looking for the toughest sentence is long overdue.

Mark Vargo, a State Attorney from Rapid City, South Dakota, said it was necessary to change the traditional mindset that looked at criminal defendants on a two-scale system: “guilty or not not guilty” or “pen or no pen” — meaning jail time.

Lyndsey Olson

“We framed victory around conviction rates and [we] weren’t looking at how to work on recidivism at the front end,” said Lyndsey Olson, a City Attorney in St. Paul, Mn., noting that her office handled nearly 13,000 cases every year with only 17 line prosecutors — amounting to hundreds of cases per person per year.

The traditional mindset ensured that the cycle of recidivism would continue, she added.

Conceding that it was going to be difficult to shift to a diversion approach, she said, “It’s also important to just start.”

In order to have a real and long-lasting impact on the communities these prosecutors serve, many of those interviewed said they realized the system needed to be transformed.

For some, that meant implementing more intervention programs, like mental health and drug treatment services. For others, it meant changing the rules around first-time low-level offenses to divert them to an “empowerment” program instead of jail.

“I think by failing to assess for, and then address mental health and substance abuse needs, we have put ourselves behind the eight ball,” John Creuzot, District Attorney in Dallas County, Tx., said.

john creuzot

John Creuzot

Creuzot’s county has recently started pretrial diversion programs for the low-level offenders, and he says it’s not only helped lower recidivism rates, but for every single dollar spent, there were over nine dollars in avoided criminal justice costs.

Leon Cannizzaro, the District Attorney for New Orleans, La., has done the same.

He said his county’s recidivism rates for those who successfully completed a diversion program was between 1 percent and 1.5 percent for the past three years, proving that counseling and services have a real beneficial impact on people’s lives.

Catherine Austin, the supervisory Assistant State’s Attorney in Waterbury, Cn., spoke about how her jurisdiction created an Early Screening and Intervention (ESI) Program that helped the individuals through the court process by offering them bus passes to get to their treatment appointments and court hearings.

If they successfully completed the program, Austin said, participants were told they can always come back if they need a resource.

“It’s important to show them that we will welcome them back if they fall off track again,” Austin explained.

Lessons and Next Steps

Overall, the prosecutors said that sustaining such changes required a commitment from local governments for more funding, and support and collaboration from local communities.

Ten of the 22 prosecutors called for greater emphasis on mental health screening or access to mental health and drug treatment services to treat the root of many low-level nonviolent criminality behaviors.

Five said their departments needed better data tracking for recidivism cases, for both juvenile and adult criminals, and eight of the 22 said the single “most powerful data measure that we don’t yet track but wish we could” was long-term individual follow ups.

These two notes—tracking recidivism and long-term individual follow ups—go hand in hand, many said.

“It’s that personal human data that is really informative,” Sherry Boston, the District Attorney in DeKalb County, Ga., said, noting that without talking to people directly, departments won’t know what areas in their community need attention or where the obstacles are coming from.

sherry boston

Sherry Boston

By better tracking recidivism, regardless if rates go up or down, it would finally present prosecutors with a visual of what works, and what doesn’t work.

David Angel, an Assistant District Attorney in Santa Clara County, Ca., said that the problem with recidivism tracking is that it’s currently defined “too broadly” to accurately be tracked.

“What most members of the community actually want to know is: If you were diverted for a drug offense, did you go on to commit a violent crime or property crime?” Angel suggested.

And, by having long-term individual follow ups, that data can be turned into anecdotal evidence about things like avoiding homelessness, the effectiveness of drug treatment programs, or the difficulties of finding a job, the prosecutors said.

Many suggested improving the collection of demographic data like age, language, race, and gender for all crime processing, as this would help see which folks need the most attention from community services.

For final thoughts on how prosecutors can improve early decision-making for their county, many talked about coming into the ring with a plan, and being prepared to face some initial backlash or skepticism about diversions with education and data.

“Of course, we’re never going to divert murder, rape, or child molestation cases, nor should we,” said Sherry Boston of Georgia’s DeKalb County.

But she noted that starting with incremental changes, like diverting burglary or robbery cases, can put many offenders on the road to rehabilitation.

“[The offender] is standing on the edge of a cliff. We can reach out and pull them back,” she said.

“We’re only going to make change in our system if we start to find ways to pull folks back from the edge.”

Additional Reading: Can ‘Mainstream’ DAs Become Restorative Justice Supporters?

E-copies of the booklet can be downloaded here. Hard copies can be requested here.

Andrea Cipriano is a TCR staff writer. She welcomes comments from readers.

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