The Prosecutor as Quiet Revolutionary

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Photo by WP Paarz via Flickr

If you wanted to remake the fundamentals of the American criminal justice system, you might start with something like this.

In a  joint op ed published this month in The Appeal, newly elected Los Angeles County District Attorney George Gascón and Baltimore City State’s Attorney Marilyn Mosby announced they planned to mobilize Sentencing Review Units in their offices.  As they noted, they were joining other prosecutors who have taken similar steps: for example, in Prince George’s County, Md., in Seattle, in Philadelphia, in San Francisco, and in Brooklyn, N.Y.

Marilyn Mosby

Baltimore State’s Attorney Marilyn Mosby

Gascon and Mosby don’t make a point of this—they may not even agree with me—but the Sentencing Review idea has revolutionary potential.

There is always the possibility that the brand “progressive prosecutor” is a passing fashion, and that prosecutorial norms will quickly revert to the practice of school-of-Giuliani press conferences and perp walks rather than reforms.

And at first glance, a Sentencing Review Unit can look like a grab for low-hanging fruit.

A prosecutor who is cynical enough might evaluate the prisoners by gauging their dangerousness to the prosecutor, rather than their dangerousness to the community.

There no risk for an elected prosecutor in cutting the sentence of a doddering prisoner in the 30th year of his marijuana sentence.  Heart-warming releases of geezers, locked up as the result of the DA’s long-ago predecessor’s mistakes, will provide catnip for the media.

Meanwhile, the faintest aura of Willie Horton might turn out to be enough to motivate leaving a prisoner where he is.  The same biases and influences that led to the distended sentence back then might support sustaining it on review now.

I’m too old to see that outcome as impossible. But before that happens, let’s give the promise of the Sentencing Review idea a good look.

Changing the Adversarial Culture

Placing the ultimate power to decide guilt and innocence in the hands of a jury of citizens rather than government officials is the central political feature of the Anglo-American system.

The adversary trial follows naturally from the need to place the citizen jurors in the key role.  It makes sense that the dispassionate jurors should have proof presented to them by professional advocates arguing conflicting versions of the events.

But in American criminal justice we don’t stop at adversary trials; we have a deeply adversarial system, and a saturating adversarial culture.

As the late John Griffiths of Yale Law School has pointed out, the fierce partisans for the Due Process Model and the zealous followers of the Crime Control model with whom they feud actually do agree on one thing.

They all believe that they are engaged in a zero-sum conflict between irreconcilables—the State and the individual—in which one side wins (and one side loses) everything.  They share the ideological premise of a Battle Model of criminal justice.

You can see this clearly, as Griffiths argued,  when you contrast the criminal system with another institution in society that hands out punishment: the family.  Families are built on a foundation of love and the assumption that the disciplined child and the punishing parent will ultimately reunite and that they share an interest in that reunion.

When, in in the juvenile court reform movement of the early 20th Century, we tried to impose Family Model concepts (e.g., “the best interests of the child”) on our Battle Model culture we got a shambles as a result.

Los Angeles County DA George Gascón via twitter

The Sentencing Review Units that Gascón and Mosby are launching aim to “rectify, rehabilitate, and restore.”  They depend on the belief that “repairing the harm caused by unjust sentencing practices assures our communities that we are working toward a vision of justice that is worthy of the great responsibility with which they have entrusted us.”

That vision doesn’t sound so different from a Family Model, or, at least, a Safety Model that takes account of everyone’s safety: prisoners, cops, victims, communities.

Why won’t it crash against the same rocks that wrecked the juvenile court reform movement? (Angry responses to these ideas from holdovers in Gascón’s office are already bouncing around Twitter.)

One potential answer lies in the different roles this new vision will ask the system’s practitioners to play.

The Safety Model

An unremarked but inevitable consequence of developing, staffing and maintaining Sentencing Review Units will be the light that process can shed on our original sentencing practices.  There’s a re-orientation in motion  here that doesn’t require frontline prosecutors to do “less” or “more,” but asks them to do something completely different.

The Sentencing Review Units provide a new vehicle for taking account of the iatrogenic (“from the treatment”) harms that the criminal system itself inflicts on communities.

The accounting that sentencing reviews provide won’t be generated by a trial-like battles.

Certainly, defense lawyers (like myself) will try to inject ourselves into the process whenever we can: whining, groveling, wheedling, in our lovable way.  But the Sentence Reviews constitute acts of grace. No law compels the prosecutors to undertake them; they are voluntary efforts to make things right.

There’s no battle here for the defense to dominate.

The new challenge these reviews pose for the prosecutors is that prosecutors are now faced with an exclusive responsibility for identifying the proper sentence not  simply the longest sentence that  they can plausibly request in their traditional stylized tug of war with the defense.

This will require prosecutors’ offices to develop new capabilities and nurture new skills.  Among these will be finding a way to engage the defense bar in collaboration rather than combat.

One of the endemic features of our adversary culture that Safety experts from aviation or medicine would notice immediately is a “structural secrecy” that it creates.

This is something different from the dangerous gamesmanship that “Brady” violators hiding exculpatory evidence create.  In the nature of things, the system’s actors have different access to different evidence, and decisions are frequently made by people with an incomplete set of facts.

The defense knows things about the prisoner, his history, his conditions, his family, and his re-entry prospects that the prosecution does not—really cannot—know.

A comprehensive Rand study of the disposition of Bronx cases (largely by agreed guilty pleas) illustrates how the contributions of a fully informed “wholistic” defenders office can contribute to safe sentencing dispositions.

Where Bronx Defenders lent their detailed knowledge of offenders, programs, and community resources to the sentencings, both the number of prison sentences and the length of the prison sentences were reduced with no reduction in public safety.

Why Did We Do This? Getting It Right the First Time

There was never a summit meeting at which the system’s leaders decreed “Let’s employ a system of wanton mass incarceration!”  and “Let’s be sure it is racially biased!”

To outsiders reading documents like Jennifer Gonnerman’s tragic account in The New Yorker of  Kalief Browder, who was held on Riker’s Island for three years before his case was finally dismissed,  the criminal courts sound like a world of slow-motion lethargy.

In fact, spend a morning there in a calendar courtroom and you might feel you’ve entered a world of sleep walkers.

But to the prosecutors working there it doesn’t feel that way.  There’s a big pile of cases on your desk; new cases are added every day, and you feel like you are drowning in them.  Meanwhile, the judge is screaming at you to move the docket.

Seen from the inside, the lower criminal courts provide classic examples of systems under production pressure.

Browder’s case took three years. But I’ll bet the prosecution’s decisions about it consumed a total of only a few minutes.  Some hard-pressed Assistant District Attorney looked at the file, looked at the list, tried to make sense of an overlapping (and often conflicting) storm of conditions and influences, and then made a plea offer, or asked for a delay.

We got where we are by drifting there, one frontline decision at a time, through decisions made by people just trying to get through their days.  “Workarounds” and “practical drift” took hold.  The longer sentence they threatened to get the plea today established the “new normal”—the local “going rate” —from which they departed (just a little further) the next day.

Browder as an individual barely registered.

Sentencing review provides prosecutors’ offices with a novel opportunity to reconsider sentences without the pressures that buffeted their colleagues the first time around.

Moreover, once a grotesquely extended sentence is identified, the review process allows a prosecutors’ office an opportunity not only to correct the mistake, but also to learn from it.

A bad sentence should raise the question “Why was it was imposed in the first place?”

“We are smarter now; they were stupid then” isn’t really an answer.  What in your predecessors’ training left them blind to these consequences? Did they respond to internal policies or unspoken norms?  What about the narrow range of options available to them forced them to zig where now you think they should have zagged?

What did this mistake cost? We paid a price in dollars that we should consider, but did the treatment of this case also inflict iatrogenic harms on the community in terms of family separation, housing insecurity, blighted economic prospects, and trust in the law, with which we should reckon?

And an important feature of a sentence review process is that a prosecutor’s office can include the community (and the crime survivors’ communities’) in the process of reckoning.

A mistaken sentence constitutes a “sentinel event” a moment for a non-blaming, all-stakeholders analyses with the community at the table that provides a forward-looking effort to prevent walking down the same road the next time. (George Gascón was an early advocate for the NIJ’s Sentinel Events Initiative.)

How did the defense contribute to this disaster? The courts? The probation office?  Did we really accomplish what the victims wanted?

Was the “battle” we thought we won a Pyrrhic victory that did more harm than good?

Once we have identified and learned to understand the distorting impact of day-to-day production pressures by looking at a case after those pressures are gone could we find ways to eliminate or manage them?

There are lessons to be learned here for the future of prosecutors’ offices.  Should staffing and training emphasize courtroom warriors when only two per cent of cases go to trial? Or is it smarter to marshal a team of trauma-informed prosecutors who can optimize the chances for Safety and reconciliation?

Do you need an internal firewall between the “move-the-case” people and the “determine-the-sentence” people? Do DA’s need all these barristers, or do they need more solicitors?  Do they need a more robust social work capacity, connected to and nourishing community alternatives?

Can prosecutors devise a system of metrics that will help them track their progress in shaping more accurate sentences that reflect the communities’ hopes for safety and reconciliation?

james doyle

James Doyle

It took us a long time to construct the Us/Them, Here/There, dynamic that permeates our criminal justice system, and it won’t be dismantled overnight.  But a prosecutors’ sentence review process if (but only if)  it is fully utilized can begin to undermine it.

It can prepare the ground for reconciliation and restoration, even plant some seeds.

Let’s hope they give it an honest try.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments

One thought on “The Prosecutor as Quiet Revolutionary

  1. There are lessons to be learned here for the future of prosecutors’ offices. Should staffing and training emphasize courtroom warriors when only two per cent of cases go to trial? Or is it smarter to marshal a team of trauma-informed prosecutors who can optimize the chances for Safety and reconciliation

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