Ready for the 2019 elections? Prosecutors make a BIG difference
Prosecutors Make a BIG Difference
Elected chief prosecutors are the most powerful actors in the criminal justice system, at both a local and a legislative level. They decide which crimes to prosecute, who to charge, what to charge them with, and the number and severity of the charges. In doing so, they can virtually dictate the short and long-term outcomes of persons caught in the system. The consequences of those decisions can spell the difference between an individual’s success or failure, not only affecting defendants and victims, but impacting the overall safety of the community.
In Virginia, we call local, elected chief prosecutors “Commonwealth’s Attorneys,” or “C.A.’s” for short. They represent every county, city and town in Virginia, and many are up for election this year. For decades, voters have treated Commonwealth’s Attorneys’ races as an afterthought, just checking a box by the party they affiliate with, or the name they recognize. Much of the time, Commonwealth’s Attorneys have run unopposed. But as more is understood about how thoroughly broken Virginia’s justice system is, how it has created broad systemic racial inequity, and the difference prosecutors can make in changing that state of affairs, the more the focus is turning to prosecutor elections as an opportunity to shape the future of justice in Virginia. In fact, in at least six jurisdictions – Arlington/Falls Church, Fairfax County, Loudoun County, Prince William County, Albemarle County and Chesterfield County -- voters have a chance to elect non-incumbent candidates who are promising to change the way cases are prosecuted in Virginia.
Justice Forward will have much more to say about Commonwealth’s Attorneys elections in the coming months, including about how prosecutors also wield their influence outside of their local courthouses, in the state legislature. The Virginia Association of Commonwealth’s Attorneys, prosecutors’ professional association, is the most powerful criminal justice lobbying group in Virignia. The leaders of VACA boldly declare that they represent “the Commonwealth’s Attorney’s party,” meaning they see prosecutors as a political party unto themselves. And as such, they have been phenomenally successful, beating back even the most basic, reasonable reforms to our justice system, such as allowing defendants to see the police reports from their own cases.
Stay tuned for more information about the importance of prosecutors, what progressive prosecution really means (and how many candidates should stop claiming to believe in it), and how Justice Forward intends to be involved in the Commonwealth’s Attorney’s elections in 2019. In the meantime, we’ve provided some links about prosecutorial reform, to help you learn more:
Prosecutors: The Most Powerful Individuals in the Criminal Justice System
“The New Reformer Das,” American Prospect (Jan. 2, 2018)
“Prosecutors are in many ways the most important figures in the system . . . . While the war on drugs, mandatory minimums, and discriminatory policing practices have all earned a great deal of scrutiny for creating the levels of mass incarceration we see today, more and more reformers are recognizing the pernicious role that prosecutors—who have a tremendous amount of power and discretion within the system—have played.”
“John Pfaff, a Fordham law professor and author of the provocative book Locked In” contends that prosecutors “are the main drivers of mass incarceration” in America. “By examining state court data, Pfaff finds that almost all prison population growth since 1994 derives from overzealous prosecutors, who have doubled the rate of felony charges brought against arrestees.”
“With the rhetoric of criminal justice reform now proving to be an increasingly effective political message, reformers are also wary of faux-progressive politicians who might co-opt the movement’s rhetoric. “‘I’m a criminal justice reformer’ are now some of the cheapest words in the English language,” says Rob Smith, executive director of the Fair Punishment Project. He points to former DAs like Anita Alvarez in Chicago, Seth Williams in Philadelphia, and Tim McGinty in Cleveland, who all claimed the mantle of reform during elections only to revert to protecting police malpractice once in office.”
“John Oliver Puts Prosecutors in the Spotlight on Last Week Tonight,” Time (Aug. 6, 2018):
“According to Oliver, when we talk about the criminal justice system, we tend to just talk about Law & Order, policing, public defenders, prisons, and judges, but don’t talk about the 2,500 prosecutors who work in the system and wield immense power.”
““The vast majority of the time your fate is not decided by a judge or jury,” Oliver noted. “Nearly 95% of the cases that prosecutors decide to prosecute end up with the defendant pleading guilty.” Those plea bargains are basically a form of criminal justice based on what happens when “people just give up,” which Oliver pointed out was the same model AT&T uses for its customer service hotline.”
“If defendants are among the 5% who decide to go to trial, according to Oliver, prosecutors can make it extremely difficult for defense counsel to access their clients’ records. This leads to what one lawyer called a system of “trial by ambush” where lawyers have little choice but to come unprepared for trial, which Oliver said is akin to “giving a presentation in English class without having read the book.””
“Oliver also noted that prosecutors were responsible for hiding 25% of exculpatory evidence leading to innocent people spending time in jail. Oliver played a clip of one D.A. setting the bar extremely low by saying that a person spending 30 years in prison for a crime they didn’t commit was “better than being executed or dying in prison.” When prosecutors do cross the line into misconduct, such as purposefully hiding evidence that could exonerate a person, there is very little accountability.”
“While there are movements to improve transparency and set up independent commissions to oversee prosecutors, Oliver noted that since most prosecutors are elected, people can demand change through the polls. That’s why it’s important to know who your local D.A. is and what policies they espouse. “Most people know [as much] about their local D.A. as they do about their local Cheesecake Factory manager.” Oliver said. “Chances are you don’t know who they are and if you do it’s because something truly terrible has happened.””
““Like the Cheesecake Factory, prosecutors have the ability to ruin lives in a second,” Oliver continued, encouraging people to find out more about their local D.A.s. “If we do not decide ourselves what we want our criminal justice system to look like — prosecutors will decide.””
“National Advocacy Groups Back Candidates To Challenge Local Prosecutors,” NPR (Apr. 10, 2018)
“Roundtree is the front line of a national push to fundamentally change criminal justice in America — one local prosecutor at a time. Nationwide, the ACLU is launching voter education and mobilization campaigns in up to two dozen cities across 10 states as part of its campaign to reduce jail and prison populations. Other advocates are also organizing around prosecutorial elections, and social justice political action committees are spending big to elect reformers.
“"We know that prosecutors at the end of the day are the ones who decide whether an individual comes into the justice system, and what that trajectory looks like," says Miriam Krinsky, executive director of Fair and Just Prosecution, which works with reform-minded elected prosecutors across the country. Krinsky says prosecutors make big decisions about how people get charged: whether to pursue a charge that carries a mandatory minimum sentence, or something lighter; whether to try a minor as an adult or seek the death penalty. They can also decide not to charge someone, or whether someone should get offered drug treatment instead of jail time.
“That's at the beginning of the process. At the end of it, prosecutors also wield incredible power because they set the terms of plea deals, which is how more than 90 percent of criminal cases end. Elected prosecutors are also hugely influential in state capitals, where Krinsky says they often have "more clout than any other in deciding what sort of legislative changes will happen" when it comes to criminal justice.”
The “Trial Penalty”: The Dominance of Plea Bargains in Our System, The Open File: Prosecutorial Misconduct and Accountability (Aug. 29, 2018).
“The Next Frontier in Criminal Justice,” The Week (Apr. 26, 2018)
“America’s prosecutors are out of control.” . . . . “This is an unjust charge, a charge that never should have been made. And the reason it has been made is simple: Prosecutors can basically do whatever they want. Prosecutors in America, most commonly called district attorneys, have enormous and often unaccountable discretion. "They can choose how harshly to go after someone, how lenient to go after someone," explains John Pfaff, a Fordham University professor of criminal law. "They have tremendous power in that respect."”
“The Commonwealth’s Attorney Party”: How Prosecutors Dominate the Virginia General Assembly and Rewrite the Criminal Law
“Prosecutors Aren’t Just Enforcing the Law—They’re Making It,” The Appeal (Apr. 20, 2018)
“Whose fault is it that criminal justice reform failed in New York? While there’s plenty of blame to go around, there’s one behind-the-scenes player whose influence gets little attention: the District Attorney’s Association of the State of New York (DAASNY).”
“This phenomenon is not New York-specific. Every state has an equivalent organization of prosecutors with strong policy perspectives, which often have enough sway to simply shut down criminal justice reform at the legislative level. . . . As Jessica Pishko wrote in The Nation, “district attorneys’ associations are powerful political actors. They do not just “enforce” the law; in fact, they help to make it.” Across the country, DA associations are using that power to defeat a wide range of bipartisan reform efforts. Though the criminal justice system has come under increasing scrutiny, these organizations continue to successfully hinder legislative reform. When it comes to criminal justice, associations like DAASNY are largely responsible for the gulf between policy and public opinion.”
“The judicial branch is meant to be a relatively neutral force that protects the individual defendant from the power of the state. But, in a criminal system that handles most cases by plea deal, judges have less oversight over the criminal process than ever before, giving prosecutors a leash so long it is functionally non-existent. The presence of a judge has been replaced by the whims of a prosecutor.”
“This is why the legislative influence of DA Associations is so concerning. It gives prosecutors a stronghold over not only executive and judicial power, but legislative power, as well. More than any other position, prosecutors threaten the traditional balance of powers within the criminal justice system. Ultimately, this more than anything else has shifted tough-on-crime from hypothesis to axiom.”
“Prosecutors Are Banding Together to Prevent Criminal Justice Reform,” The Nation (Oct. 18, 2017)
“District attorneys’ associations exist in most states. . . . . For the most part, these prosecutors’ associations adopt a “tough on crime” stance, advocating for legislation that would give them greater discretion to lock people up. “They all too often act as a roadblock to significant reforms,” says Udi Ofer, director of the Campaign for Smart Justice at the American Civil Liberties Union. “In state after state, we’ve seen DA associations hold back reforms that are supported by Democrats and Republicans alike.””
“The Perverse Power of the Prosecutor,” Democracy: A Journal of Ideas (Feb. 22, 2018)
“One of the more important shifts in criminal justice reform over the past five or so years has been a growing awareness of just how powerful and influential prosecutors truly are. Perhaps startled to find themselves under such attention after decades of little to no scrutiny, prosecutors are now pushing back. One common rebuttal prosecutors make is that they don’t actually have that much power. It is the legislature, they argue, which passes the laws and thus really calls the shots. Prosecutors simply impose what the legislature enacts.
“Such claims, however, are quite disingenuous, since they conveniently overlook one of the most important sources of prosecutors’ power: their oversized influence over the legislative process. District attorneys are not passive players in the politics of crime, sitting idly by awaiting their orders from on high. In states from Pennsylvania to Louisiana to California, district attorneys aggressively, and effectively, lobby against reforms they dislike and for new laws that they do.”
“In other words, as reformers start to pay closer attention to the power of prosecutors, they need to keep their eyes not just on how prosecutors have driven up incarceration rates in their day-to-day decisions—like deciding how many people to charge with felony charges or what type of sentence to impose on them during plea bargaining—but also on how they shape the broader politics of criminal justice. Many former prosecutors are now judges and legislators, and current district attorneys frequently work hard to impose tougher laws and to stifle reform. Regulating prosecutors will require looking at not just their direct powers, but their significant indirect political influence as well.”
“Philly DA Larry Krasner withdraws office from statewide prosecutors group,” Philadelphia Inquirer (Nov. 16, 2018)
"Philadelphia District Attorney Larry Krasner has withdrawn his office from Pennsylvania's largest prosecutors' association, saying the advocacy group has supported regressive or overly punitive policies and represented "the voice of the past."
"Krasner, whose first 11 months in office have attracted national attention for his reform-driven agenda, said Friday that he believed that the Pennsylvania District Attorneys Association was at least partly responsible for an explosion in the state's prison populationover several decades, and that it continues to back ideas that would make the problem worse."