21 Principles for the 21st Century Prosecutor

December 3, 2018

In recent years, the role of prosecutors has received increasing attention. Given their powers, prosecutors are well positioned to make changes that can roll back over-incarceration. The just-released “21 Principles for 21st Century Prosecutors” offers practical steps prosecutors can take to transform their offices and, collectively, their profession. The central aspiration of these principles is at once simple and profound: that prosecutors will adopt a new and bold 21st Century vision for meting out mercy and justice.


Introduction

After the al Qaeda attacks of September 11, 2001, the U.S. Department of Justice named terrorism prevention its number-one mission. But it does not treat all terrorism with the same urgency. For many Americans, this disparity became evident when Dylann Roof assassinated Reverend Clementa Pickney and eight members of his Mother Emanuel African Methodist Episcopal Church in Charleston, South Carolina, in June 2015.

In interviews, then-FBI Director James Comey refused to call the attack an act of terrorism, aggravating longstanding complaints that the Justice Department did not view domestic terrorism involving racist, Islamophobic, anti-Semitic, homophobic, and anti-immigrant violence from the far right as a national security problem on par with terrorist acts committed by Muslims.

These concerns grew more pronounced as Donald Trump’s bigoted campaign rhetoric inspired rallies around the country in which neo-Nazis, white nationalists, proto-fascists, and far-right militias openly engaged in violence. This included beatings, stabbings, and shootings of counter-protesters and journalists, with little interference from law enforcement at the time and just a handful of belated federal prosecutions.

Many in federal law enforcement blamed their inadequate response to rising far-right violence on a lack of statutory authority to prosecute white supremacists and others as domestic terrorists. As a result, Justice Department officials have called for a new statute that would create a domestic terrorism offense, perhaps modeled on the international terrorism statutory regime. But this approach is misguided.

This is the first in a series of white papers exploring the federal government’s problematic responses and non-responses to domestic terrorism. In this paper, we show that existing statutes have long provided substantial authority for the federal government to investigate and prosecute acts of domestic terrorism.

One of the co-authors of this paper has personal experience investigating violent white supremacists and anti-government militia members as an FBI undercover agent in the 1990s. That work demonstrates that traditional law enforcement tools provide ample authority to proactively prevent acts of domestic terrorism through criminal investigation and prosecution.

Data produced by the federal government, supplemented with research from academic institutions and advocacy organizations, shows that far-right violence, sometimes categorized as hate crimes or civil rights violations, is severely under-addressed as a matter of Justice Department policy and practice, rather than a lack of statutory authority.

Moreover, there is reason to fear that new laws expanding the Justice Department’s counterterrorism powers will not make Americans safer from terrorist violence. Instead, they may further entrench existing disparities in communities the government targets with its most aggressive tactics, with serious implications for Americans’ free speech, association, and equal protection rights.

This paper argues that rather than expanding counterterrorism powers that could be further abused to target protesters and political dissidents instead of terrorists, Congress should intensify its oversight of federal counterterrorism and civil rights programs to ensure that security resources are directed toward the deadliest threats and all Americans receive equal protection under the law. Congress must require that counterterrorism resource decisions be based on objective evaluations of the physical harm different groups pose to human life, rather than on political considerations that prioritize the safety of some communities over others.