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How Do We Solve the Mass Incarceration Crisis? Emily Bazelon Has an Answer

Tackling one of the most complex aspects of the criminal justice system, Charged is vital reading that adeptly weaves together complex research, on-the-ground journalistic reporting, and a page-turning narrative.

This piece was originally published in the National Book Review.

In 2001, Abbe Smith, a Georgetown University Law School professor and co-director of the school’s criminal defense clinic, wrote an article entitled, “Can You Be a Good Person and a Good Prosecutor?” At that time, the United States incarcerated just more than 2 million people. Today, that number has grown by about 200,000. In her article, Smith explored “whether a well-intentioned prosecutor can temper the harsh reality of the criminal justice system – in view of the institutional and cultural pressures of prosecutor offices.” Smith didn’t just examine this question; she also quite succinctly answered it, writing: “I hope so, but I think not.” Her answer reflected the reality that the previous three decades produced unprecedented punitiveness in our criminal laws, racial disparities in both prosecution and punishment, and ultimately in creating a system of mass incarceration.

Smith’s question has occupied the minds of scholars, activists, defendants, and law students since she wrestled with this inquiry the year after we entered the 21st century. Eighteen years later, New York Times journalist Emily Bazelon delves into the recent movement to elect reform-minded prosecutors into office. Bazelon’s book: Charged: The New Movement to Transform American Prosecution and Mass Incarceration investigates prosecutors’ discretion to provide second chances as well as to cause more harm to individuals who are ensnared in the justice system. It’s part history, part policy, and part captivating storytelling that paints a picture of the vast discretion that local prosecutors – who handle more than 95 percent of America’s criminal cases – still wield in the year 2019. Bazelon’s book implies that the answer to Professor Smith’s question would be, “Yes you can.”

The book’s publication also coincides with a time in American politics when criminal justice reform has become a key component of Democratic presidential candidates’ election platforms. Notably, many of those vying for higher office who previously served as elected prosecutors are now spending their time on the campaign trail apologizing for their punitive behavior. Recently, California Senator Kamala Harris, who served as both San Francisco District Attorney and then as California’s Attorney General and is now running for President, was criticized for her role spearheading an anti-truancy program targeting parents of students who skipped school, going so far as threatening to prosecute the parents. Similarly, Minnesota Senator Amy Klobuchar, who served as Hennepin County’s chief prosecutor for eight years and is now a 2020 presidential candidate, came under fire for her role advocating for longer prison sentences for crimes many think are not even worthy of incarceration, such as graffiti taggers. Daily Beast journalist Sam Brodey writes that their prosecutorial records are now being “scrutinized in light of the ongoing reckoning over the ‘tough-on-crime’ era and its contribution to the injustices of mass incarceration.” With more voters demanding accountability for their past draconian practices, it seems that times have changed for prosecutors.

Charged – a meticulously researched book – explores the fast-growing national movement to elect visionary prosecutors who better reflect the communities they serve, and who promised to move away from policies that rely on incarceration as the default punishment.  Describing their campaign speeches, Bazelon quotes journalist Clyde Haberman: “They all sound like they’re running for Public Defender, not prosecutor.” Yet these newly elected officials, as Bazelon notes, still only represent a small fraction of the more than 2,400 elected prosecutors in the United States.

Capturing how some of these newly elected prosecutors are attempting to move their offices away from a culture that “prizes aggression and trial victories” and the “drive to win at all costs”, Charged highlights chief prosecutors who have started to think more broadly about their role. One prominent example is Brooklyn District Attorney Eric Gonzalez’s decision to hire immigration lawyers to advise his office on the collateral consequences of defendant’s convictions. Other illustrations include: Orlando State Attorney Aramis Ayala announcing that her office would no longer seek the death penalty (despite its availability in Florida); Cook County State’s Attorney Kim Foxx’s decision to raise the threshold for felony theft in her jurisdiction to $1,000 (from the state’s legal threshold of $500); and Philadelphia District Attorney Larry Krasner’s policy of not bringing charges of marijuana possession, regardless of weight, and not charging sex workers who have fewer than three convictions.

In tracing this fledgling movement, Charged juxtaposes the approaches of two different elected officials: Eric Gonzalez in Brooklyn, NY and Amy Weirich in Memphis, TN. Bazelon takes the reader behind the scenes – sometimes in the manner of a true-crime novel – illustrating the disparate treatment of defendants. In Brooklyn, Bazelon follows a young man – Kevin – and writes about how the Brooklyn District Attorney’s office handled his case. With the help of his attorney, Debora Silberman of the Brooklyn Defender Services, prosecutors granted Kevin (whose name Emily changed to protect his privacy) a rare opportunity to participate in a diversion program called Youth and Congregations in Partnership (YCP). If Kevin could successfully complete the program, his case would eventually be dismissed and sealed. In a contrasting story 1,000 miles to the south, in Memphis, Bazelon follows the harrowing story of Noura Jackson, who at the age of 18 was charged with the murder of her mother. Here, Bazelon deftly reveals how the prosecutor didn’t hesitate to disregard DNA evidence from the crime scene that did not implicate Jackson. “But we had a mountain of circumstantial evidence that put the defendant in that home, killing her mother at the time,” Bazelon quotes the lead prosecutor on the case telling her. The differences between how these two district attorneys’ offices handled Kevin and Noura’s cases expose the tremendous discretion that prosecutors possess to produce outcomes that may have harmful effects, or alternatively, to improve the lives of defendants whose cases they oversee.

While shining a positive light on many of the newly elected prosecutors who are rewriting the rules of their offices, Bazelon justifiably criticizes specific prosecutors who are entrenched in the “old ways” – ones who have, for example, looked the other way in the face of exculpatory evidence, consistently failed to turn over relevant documents to the defense, and appear to prioritize wining cases over all else. Tackling one of the most complex aspects of the criminal justice system, Charged is vital reading that adeptly weaves together complex research, on-the-ground journalistic reporting, and a page-turning narrative.