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The Revolution in Prosecutors’ Offices

In her new book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, journalist Emily Bazelon follows a new crop of district attorneys who are using their offices to pursue criminal justice reform. She discusses these efforts with district attorney Eric Gonzalez, prosecutor Dan Satterberg, Fair and Just Prosecution’s Miriam Krinsky, and the Brennan Center’s Lauren-Brooke Eisen.

April 15, 2020
Prosecutor event
©Slezak: Courtesy of NYU Photo Bureau

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Transcript 

This podcast was recorded on April 09, 2019.

MICHAEL WALDMAN: Prosecutors have a big job. They defend public safety. They wield great power. And today, a growing number of them are reimagining their roles in our criminal justice system.

EMILY BAZELON: There are more than 2,400 elected prosecutors across the country, but there are not very many people who can lay claim to being a progressive prosecutor.

MICHAEL WALDMAN: New York Times journalist Emily Bazelon writes about a growing movement to transform the role of prosecutors so that the system benefits all people in her book, Charged. Despite the obstacles these prosecutors face, this new generation brings fresh hope for reform.

EMILY BAZELON:  There are so many problems that remain in criminal justice, but to also be able to report on people who are trying to do things differently, that has been the real pleasure and joy of this book.

MICHAEL WALDMAN: Miriam Krinsky is the executive director of the organization Fair and Just Prosecution. It trains prosecutors all over the country to reframe their work.

MIRIAM KRINSKY: How do we get prosecutors to understand that compassion and mercy and a just system is not inconsistent with public safety? In fact, it's the essence of public safety.

MICHAEL WALDMAN: The King County Prosecuting Attorney Dan Satterberg urges prosecutorial prudence.

DAN SATTERBERG: What I tell the newly elected prosecutors is that your discretion is your superpower. Prosecutorial discretion can be a bad thing, but it can also be something that you use to engage with the community in new ways.

MICHAEL WALDMAN: This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU Law. I’m Michael Waldman.

In April 2019, Emily Bazelon, Miriam Krinsky, Dan Satterberg, and Brooklyn District Attorney Eric Gonzalez joined the Brennan Center’s Lauren-Brooke Eisen to discuss their work in trying to transform our criminal justice system.

 


 

Emily Bazelon: When I started thinking about this book in 2015 and when I wrote a proposal for this book, I thought I was going to be writing about the power of prosecutors and the damage that has done — the way that prosecutors have mostly used their power to put more and more people in prison. And I wrote a book proposal that was an argument about why that's been so problematic, trying to show its development, looking at the kind of legislative shift to mandatory sentencing, the rise of plea bargaining. And then I had a really happy coincidence happen while I was working on the book, which was that this movement arose kind of underneath my feet, making the issue — for me, as a journalist — much more interesting, because following change, especially optimistic change, is something that you don't get to do all the time in my profession, right? We spend a lot of time talking about problems, and we should. And I should say there are so many problems that remain in criminal justice, but to also be able to report on people who are trying to do things differently, that has been the real pleasure and joy of this book.

And so the stories I tell in the book are designed to kind of illustrate these two sides of criminal justice in America. I argue that we're at a crossroads. And so, I told a story about an old school law and order prosecutor in Memphis and then a story about Brooklyn that features Eric Gonzalez's office as a way of looking at these two different ways of doing the job.

One of the characters … The story in Memphis is about a woman named Noura Jackson, who was charged with killing her mother when she was 18. That's now, I think, 12 years ago, 13 years ago. And so that is a story of a case in which prosecutors decided very early that Noura was the suspect. The DNA results in the case then came back, excluded her, the prosecution nonetheless continued and kind of unfolds from there. And I was interested in that case. It's got a lot of gripping detail and Noura is a — to me — riveting person, but I also ... The office that that case was prosecuted in Memphis has a pattern of failing to disclose evidence in murder cases where the stakes are very high. And I was just really surprised — like, as a citizen — that that was possible, that you could have kind of repeated instances of prosecutorial misconduct, serious violations of people's constitutional rights, that would go unaddressed. So that was the sort of question I went into with that case.

The second case I chose come out of a specialized gun court in Brooklyn. And I was interested in a few things there: this sort of tension, I think, between getting guns off the streets — a goal that is hard to argue with — and then the reality of having mandatory prison sentences, which is how New York law works, for people who get caught with a gun. There are lots of reasons why people, especially in poor African American neighborhoods in Brooklyn, have guns. They talk about protection. There are, of course, lots of parts of the country where the NRA is fighting hard to protect people's right to have a gun. They were not showing up in Brooklyn. And then I got really interested in a diversion program that Eric Gonzalez's office, that Eric's office has been running for years, that is for people accused of felonies — even violent felonies, because gun possession counts as a violent felony in New York — that's really unusual. I still haven't found another program like it around the country, though I don't want to rule it out because it's a big America.

And so I watched, I followed the story of a young man who I called Kevin in the book because I am protecting his safety and his privacy. I followed his case through and it was all happening in real time, which is an exciting and also kind of risky thing to do as a journalist. You just don't know how it's going to turn out. But I wanted to use his case to illustrate both the possibility of this harsh sentence and then the possibility of a second chance that he was receiving.

LB Eisen: So Eric, this program is in your office and you now oversee this program. And you've also recently just rolled out some very new initiatives that I think district attorneys across the country are following. Your Justice 2020 Initiative has just stated publicly, and I think you might be the only prosecutor's office in the country — correct me if I'm wrong — that has said this, but that alternatives to incarceration are the default and incarceration will now be the alternative in your office. You've also recently rolled out other new initiatives, such as hiring two immigration attorneys on staff who will look through cases for defendants who might have collateral consequences related to their immigration. So these are really bold, really visionary changers. Can you talk a little bit about what some of the challenges have been rolling out these initiatives within your office and also out in the wider community?

Eric Gonzalez: My belief is that in order to keep my county and to keep my city safe — and particularly Brooklyn — that the work we do as prosecutors in order to promote safety has to also really make sure that we are earning community trust in the things that we do. And I've challenged the assistant DAs to ask themselves two questions on every case they handle and really push back against being case processors — that because a case has been ... an arrest has been made by the police department, that we automatically have to have certain outcomes with those cases. And the two questions are very simple: Is what you're about to do or trying to do, is it going to keep community safe? And will it promote or will it push against the public trust in our justice system? And quite frankly, I've spent nearly 24 years as a prosecutor, I grew up in Brooklyn, I grew up in East New York, and I grew up in a community that was a high crime neighborhood during the 80s and 90s, in a neighborhood where there was not a lot of trust in our justice system.

And I became a prosecutor to do two things: to make sure people who grew up in East New York, like my family, could feel some sense of safety, but also because I thought that maybe over time people like myself could help change the system. And for me it's very clear our criminal justice system has become too large. It's overblown. We take in cases all the time that have nothing to do with public safety. We take in cases that actually do the opposite of promoting public trust, and we needed to focus our energies on cases that actually keep us safe. So I'm trying to shrink the system, but I'm also doing something that I think a lot of newer DAs agree, which is that it can't simply be about punishment. I've been talking to the assistant DAs in my office that accountability is not the same, it's not synonymous with punishment, but accountability is about making sure people take ownership for what they did wrong. We try to figure out how to prevent them from doing that again, and they make some kind of redress for the harm that they caused to our society. So this program that deals with gun offenders, and it's not very highly appreciated by our police department here in New York City—

Emily Bazelon: Oh, no they love it.

Eric Gonzalez: It's been a source of a lot of tension between my office and law enforcement, but my thoughts on this are pretty simple — that a lot of these young men are arrested with guns. They weren't using the guns, they weren't committing crimes with the guns, but the fact that they had the gun was a danger to the community and to themselves. So we needed to have interventions in their lives, but we did not need to warehouse them upstate for a minimum of three and a half years, especially the younger folks who ... we deal from 16 to 24, 25 years old. And really, I've looked at this for a while now, I see rap sheets every single day in my life where someone has been arrested for a gun and goes upstate, comes home, and commits more crime. So that sort of accountability by sending someone to prison didn't make us safer, it just brought back more violent people. Our interventions are meant to do cognitive behavioral change so that these young men will drop the gun and leave the gun alone and move on and be productive with their lives. And it's a small sample, but it's important that I'm doing it because it's proof that we can, in fact, work with people who've been charged with violent crimes.

LB Eisen: And Emily, in your book, the character Kevin is one of those people who wasn't using the gun for a crime but likely just told the police that that was his gun because his friends had criminal records. So—

Emily Bazelon: Yeah, I mean right. He was 19 at the time, and his thinking was ... So he was in an apartment, a friend's apartment. That friend had flashed this gun on Facebook the day before. That was why the police had a search warrant. Kevin happened to be the one who opened the door, and the gun was lying behind him on a table. And he had this kind of split second — he knew his friend who owned the apartment had a record and was going to really be going upstate for a long time if he got caught. And I think that sort of rash, youthful impulsiveness to me is captured in the fact that one thought that flashed through Kevin's mind was he could grab the gun and flush it down the toilet — like, not going to work. But that was what he said he was thinking in that moment. And then once he had the gun he said to the cops, like, "I'm going to be a man and take the charge." And I think there's a lot there about someone's conception of manhood and also this notion of loyalty to his friends — that he was trying to spare other people. Now, I mean, you can dismiss all of this as misguided, but I think a lot of teenagers — my sons were that age — might have a similar impulse, but in a different circumstance. Anyway, so that is the beginning of that case, you're right.

LB Eisen: And Dan, you are also known for some incredibly innovative practices in your office, specifically Law Enforcement Assisted Diversion. So for those less familiar with laws ... it's called LEAD and it's now considered a model for police and prosecutors across the country and it's being expanded in New York and many other states. Can you talk a little bit about how you helped to start that program, and as well as any challenges that existed when you were trying to … I'm sure you had no challenges when you tried to start the program.

Dan Satterberg: So yeah, thank you. So I have been a prosecutor for 34 years, I've been elected for the last 12, so I'm not one of the new wave who has run against an office. I'm one of the old dogs, and Miriam's group has brought the old dogs and the new wave together. And what I tell the newly elected prosecutors is that your discretion is your superpower. Prosecutorial discretion can be a bad thing, but it can also be something that you use to engage with the community in new ways. And I think that the essence of the 21st century prosecutor needs to be ... to do things on purpose to bring the community into your work. And nowhere … I mean, the “easy” — easy in quotes — the low hanging fruit for criminal justice reform has to be how we deal with drug addiction, because we all now say that substance use disorder is a disease. It's a brain disease. People can be helped; they can get better. You can't punish people into sobriety, but you can make a connection with people in your community who understand how to work with people who are in the grips of addiction.

So a number of years ago … And we were being sued by the Public Defender Association in my city — we being the Seattle Police Department, also my office — because they said that we were using … the police were putting their resources into areas that particularly were communities of color, making cases against mostly Black defendants in the city courts. It was not unique to Seattle. I think throughout the country, that's what was happening. It was easier to go — you could walk down the street with a $20 bill in full police uniform and you could probably make a buy because they would just look and they were selling it to anybody. What we did, we got sued unsuccessfully over years, and then one day we sat down in my office and I said to the public defender and the police chief who was there, "What do you guys want?" And they said, "Well, we want the police to have another option when they make an arrest." And the police said, "Well, that's what we want, too." And so soon we got some money, some grant money, and we created this additional tool for police officers.

So when someone is arrested in Seattle for a drug possession or a drug-related crime, that the officer has the discretion to call for a case manager instead. Instead of taking that person to jail, they might take them back to the police precinct, call the case manager, and the deal is, within an hour, that case manager is going to show up, they're going to do the warm handoff, and if that person engages with the case manager, then the prosecutor agrees to never file that case. And so the case manager has to have some resources, they have to have housing, they have to have all sorts of emergency medical things because people who have serious drug addictions often have other medical issues, too. So it's really a persuasive thing. We don't force people into it. It's a harm reduction format, which is important because we know that harm reduction is a thing that works. So what people who have become addicted to drugs lose is any sort of connection to friends or family or people who want to help them and pretty soon they just surround themselves with other compulsive drug seekers. So the idea of LEAD … and it was to create that avenue for help for people who have addictions.

Last year I made the — using my superpower of prosecutorial discretion — I said, "I'm not going to prosecute people who possess under a gram of heroin or cocaine or methamphetamine." It's just not doing anybody any good, and instead we're going to use the money that we were spending — about $3 million a year — to process people through the courts with no help. We're going to use that money instead to continue to expand the LEAD program.

LB Eisen: And Miriam, you have created this ambitious national program to help support newly elected — and, in Dan's words, old dogs as well — reformed-minded prosecutors, prosecutors who are hoping to really shift the way that justice is done in their offices. And you and I worked together. The Brennan Center worked with Fair and Just Prosecution, and I've never asked you, and I'm curious, how did you know that there was such a need?

Miriam Krinsky: I don't know that we did know. I mean, I think that our feeling was, let's fill a space that looks like and feels like it needs to be filled and let's see how it goes. And we really saw this opportunity and the moment that was a unique moment with individuals like Eric, DA Satana Deberry from Durham is here — just recently elected, and she came in sort of more recently. But when we looked around in 2016 and saw the individuals who had come into office and knew full well just how lonely and challenging the job can be, that change is never easy, that cultures in offices run deep, and that it's not easy to kind of do things in a different manner.

And as Eric said earlier and as Dan has been doing for some time, to commit to shrinking the size of the justice system, to commit to a view that we've criminalized too much for too long, that we've got a justice system that for too long has tried to treat through imprisonment and through punitive responses individuals who are suffering from substance use disorder, who are struggling with mental illness, who are simply reflecting the manifestations of poverty — that individuals who are really trying to take to heart, how do we change that paradigm? How do we own, as prosecutors — as Dan so passionately talked to our group about — how do we own more really from cradle-to-grave in terms of a person's life and say that the job of prosecutors should be to create healthy and safe communities? We can over-police our way to safer communities, but how do prosecutors own the need to make their communities healthier places? So when we started to hear these views, we realized that this was a different moment in time.

And that somehow we needed a space where these bold new thinkers could come together and feel that they had a community and that they weren't alone, that they could come together and share the challenges, the struggles, and also share new ideas and have a chance to learn from each other and to learn from some of the best expert thinkers in the country.

LB Eisen: And Emily, in your book you write that there was this sort of phrase, “You couldn’t run for dog catcher for decades unless you were tough on crime.” And now we have the highest law enforcement officials running on a sort of empathetic, smart-on-crime platform, which is very, very new in the history of our country.

Emily Bazelon: I think the assumption is quite revealing that if you position yourself as being … as trying to redefine what safety means, like when Eric's talking about this, that's what I hear — that law and order DAs would also say that safety was their priority. But they think the way to get to safety is strict punishment, which often means imprisonment, and like, that's their job — it's to lock people up who do bad things. When crime was really high, most of the country was very receptive and committed to that message. So now crime is down, and that opens a space to think about it differently. And you can start to ask questions like, well, wait a second, the rate in United States for solving murders is 60 percent. That's low compared to other Western democracies. So maybe safety involves the kind of trust that Eric and Dan and other folks here are trying to build in their communities. Because if people trust the law and they see it as legitimate, they see the criminal justice system as having a purpose that can support their lives and communities — well, maybe they'll go to the cops when they see a crime. Maybe they'll show up as witnesses in court.

Problem is, there are these gaps that their lack of desire to do that creates in solving cases, in solving homicides and shootings. So I think that that redefinition of safety is crucial. But what you see from this idea that if you have that goal that you're acting like a public defender, that suggests that prosecutors can’t also share those values, and I think what you're seeing from this movement is a real pushing back. And I think also it's so important to give credit to the organizers who helped this movement grow and have been so much behind these campaigns, because they are making DAs answer to a different constituency, and that makes all the difference. It turns out these are local elections. Not all that many people vote. You can make a big impact on your local criminal justice system without having to address gridlock in Washington or these big insoluble feeling national problems that we have.

LB Eisen: Eric and Dan run very large offices with large number of staff — attorneys, administrative staff. Eric, I'll turn to you first. For decades, prosecutors across the country really have been rewarded for conviction rates, for more punitive responses to crime. They've been promoted, chief prosecutors have been elected based on their conviction rates, and things are changing. And both of you are doing things to change that in your offices. So Eric, what have you started to do to change culture in your office around promotion and just really the culture around punitive responses and what a DA's job and their role really should be?

Eric Gonzalez: In order to change culture, and I have a big office — 1100 plus employees, over 500 prosecutors; some are junior, some have been there for a decade, some have been there for 25, 30 years — to change that culture is not going to happen overnight. But one of the things that I think has been a key part of the culture change in the office, the way we hire is different, the kind of questions we ask when we're hiring is a lot different than they used to be. We used to hire people who wanted to be tough on crime and people who wanted to be the best trial attorneys. And that was really what their goal was: to get into the courtroom and learn how to try cases, as opposed to people who we now speak to who want to do justice on cases and understand it's a different obligation than just going into the courtroom and proving your mettle against an adversary. But for me, I think the most profound change in my office is the acknowledgement that jail or prison doesn't keep us safer.

We are always going to get slapped down by the news media or some other person who wants us to be very vindictive in our sentences and very tough on our recommendations, that we have to actually have a fundamental belief within the people who are doing the job that when we send someone to prison, it's because we're failing, because we can't figure out another way of safely dealing with that person. And we're saying the only response is to send them upstate where possibly, they could have some long-term cognitive change in their behavior. But we believe the things that keep us safe are educational attainment and housing and employment and the real bond tied to a person, a spouse, a partner, a family member. And when we incarcerate people, we remove them from those things that we know keep people safe, and we go back and forth. And we do that over and over and then we expect them to become better. We need to really use our resources, as Miriam was saying, to make the community stronger and better and healthier, and not to put people in situations where by punishing them, we've now returned them back to the community worse. And we can all talk about our situations with our jails and whatever wherever we come from, but jails are not the place where you're going to make positive social networks.

And people come back from jail worse than when we sent them, but they also come back to a community that has all the same problems it had when they first got in trouble, and we have not invested in either the person or the community, so we're setting them up for failure. I saw this firsthand in East New York. I saw this with so many of my friends who I went to school with. So many of my friends in the 80s and 90s — particularly in the 90s — got involved with drugs. And my family still lives in East New York. When I return home to my family home, I still see these guys, they never moved on with their lives because their educational attainment was cut short, they could never get good jobs, and we've stunted their growth. And we lost generations of young people to the criminal justice system that kept saying, "Well, you're not changing so we're just going to give you more and more time," instead of giving them the ability to make that change.

LB Eisen: And Dan, you've also done a lot to try to change culture and practice in your office. I know that you've brought in cultural competency trainings, implicit bias trainings, you've brought in speakers who can talk about the racial history of our country which is ... I was an assistant DA here in New York and I never had that sort of training or speakers brought in or implicit bias training. Can you tell us a little bit about why it's so important to change culture in your office and what you've seen?

Dan Satterberg: So number one: Human beings hate change. It makes them very uncomfortable, and lawyers probably more than anyone. So we are taught in wonderful institutions like this all about precedent and about stare decisis — the thing's already been decided, so let's move on. That's of course not true at all and in fact, we have tremendous ability to change our practice and our culture. But the first thing I wanted to do was to just understand what the criticisms are of our profession and to invite them into our conversation. So we talk about mass imprisonment and mass incarceration in United States, and how even though right now we have the crime rate that we had in the mid 1960s — which we haven't been this safe for 50 years — we lead the planet in incarceration. In fact, if you're going to go back to the incarceration rate that we had in 1965, we'd have to release 80 percent of the people who are in state and local prisons, and no one wants to do that. But we also have to understand it wasn't always this way; we had a different approach.

We bring in speakers. I've even let Emily talk to my office. I haven't even read the book yet —

Emily Bazelon: Brave. Brave.

Dan Satterberg: I know there's going to be some criticisms in there, but we're grown-ups so we can handle a little criticism. And if it's true, we deserve the scrutiny because we have a lot of power, and we have to understand why people want us to change and understand it. And certainly racial justice is a big part of that, and I've had mandatory trainings for my entire staff. I made them watch the 13th, a documentary, which was very powerful, and brought Jeff Robinson from the ACLU in to talk about … he's got a wonderful three and a half hour talk about the true history of racial justice that you didn't learn in high school or college. And it's made people uncomfortable, and I've had some backlash. And I've told my people who are uncomfortable, "That means you're paying attention. If you're uncomfortable, it means that this is working.” So let's start to look at some of our practices. And I agree with Eric in the idea of shrinking our footprint in the criminal justice system — we don't have to be involved in all of these things. And so, I hire and promote people who want to be part of changing things and who have creative ideas.

And because of those ideas, we're doing things in a much different way. And the best ideas come from within. For instance, we don't prosecute people who have suspended licenses because they didn't pay their speeding ticket — that's driving while license suspended in the third degree. Once someone … you go from a civil infraction to a criminal matter, and once you get into that vortex, you never get out and lots of young people ... and being in court doesn't help people get their licenses back. That was about 3000 cases a year that we no longer do. We no longer do about a thousand drug possession cases that we used to do, and these ... And instead, we're trying to use those resources to do things, like we have a brand new unit in my office that takes guns out of people's homes in domestic violence situations.

Eric Gonzalez: When I think about the culture change in the office and why it's so difficult, it's not because there are bad people in the office. There are people who've committed themselves to trying to keep their community safe. But it's an acknowledgement that the things that they personally did over time have added to community harm, that the things that they've done on behalf of all of you and on behalf of the people that we serve have actually caused harm. And I think it's a difficult acknowledgement to make that you've done something that you thought was the right thing or the thing that you were told to do or the thing you were trained to do, and now when you have to reassess, you realize that you've added to harm. And I've come to terms in my own career of the things that I've done that have harmed. I've tried drug cases, cases that we don't even prosecute anymore in my office, but I've tried cases that people have gone to prison for for things that I would never even pursue today.

LB Eisen: Miriam, your group, Fair and Just Prosecution, does a lot to promote culture change in district attorney's offices. And recently — a sort of plug for all of our work — FJP and the Justice Collaborative and Emily Bazelon collaborated on a document that Miriam is holding in her lap called 21 Principles for The 21st Century Prosecutor. That is sort of a blueprint, right, tor starting to change culture in these offices. Can you talk a little bit about some of those principles? And they are also incorporated in Emily's book at the very end as well.

Miriam Krinsky: So what are a series of principles and strategies that are going to shrink the system? And second of all, how do we try to increase fairness? How do we create a system that is accountable, that is transparent, that embraces procedural justice, and what does that look like? And how do we get prosecutors to understand, as Emily talks about and others so well, that compassion and mercy and a just system is not inconsistent with public safety? In fact, it's the essence of public safety. So the principles include, how do we treat kids like kids and realize that young people remain stupid with developing brains into their 20s? No aspersions cast on those in the room in their 20s, but how do we have a system that acknowledges that building brain? How do we embrace thinking around treating rather than criminalizing individuals who are struggling with mental illness, with substance use disorder, with poverty? How do we develop principles that recognize the poverty penalty, meaning reforming cash bail, ending fines and fees?

How do we think about what it looks like to have a system where incarceration is the alternative rather than the presumptive starting point?

LB Eisen: The Brennan Center recently hosted an event with James Forman Jr., Rachel Barkow, and Paul Butler from Georgetown, and we discussed the criminal justice reform movement and we discussed prosecutors. And both of them spoke about this article that Emily also writes about in her book. And it was written in 2001 by Abbe Smith, who was the co-director of the Criminal Defense Clinic at Georgetown Law. I was a student at the clinic at the time actually, and I was thinking about going to a prosecutor's office, and the title of her article was, “Can You Be a Good Person and a Good Prosecutor?”

Emily Bazelon: And her answer was no.

LB Eisen: And her answer was no. It was very controversial at the time, and Abbe talks about how career prosecutors — friends of hers — were just horrified that she would write such an article and answer it that way. And since then, Georgetown law professor Paul Butler has dedicated an entire chapter of his 2009 book, Let's Get Free: A Hip Hop Theory of Justice. Ten years later, Emily writes about this in her book as well. And you have just spent the last few years deeply entrenched in prosecutors’ offices in this movement, interviewing defendants, interviewing family members, interviewing so many people touched by not only prosecutor's offices but the entire spectrum of the justice system. So I'm curious, what do you think?

Emily Bazelon: There are more than 2,400 elected prosecutors across the country. There are just not ... it depends how you count, but there are not very many people who can lay claim to being a progressive prosecutor. There are five district attorneys in New York City. I would argue that none of the other four are meeting that definition. So what you see from people like Paul and Abby is the sense of, like, prosecutors are going to prosecute, and if you don't want to be locking up a lot of low income Black and brown people, this is not the job for you. I've talked with Paul and Abbe recently. I keep checking in with them, like, have you changed your mind? Because I tell my law students that I think it's really important for ethical, committed people to be on both sides of the adversarial system, that if we give up on sending people to Dan and Eric's offices because we don't think that progressives or liberals should be playing that role, that's a lot of power to hand off to people who you might not agree with.

Eric Gonzalez: Well, I'm going to say I believe that they are simply wrong. I think that as a prosecutor, we have to do a much better job in acknowledging that the criminal justice system — the origins, the systemic racism — that it was used to hold people back. We have to make acknowledgements of how the system has failed us, and how it's particularly been used to hold back African Americans and others in this country. That being said, prosecutors play an important role in helping, I think, shape what could be safe communities and the things that we're doing to talk about mental health and to treat addiction in different ways. And to do that, as people have seen what DAs are doing throughout the country, even if it's only small places, even if it's not numerically a large number of places, it’s been in pretty big offices where they can effect massive change.

I bet you in virtually every DA's office in the country, there are people in there who would love to change the way their office operates.

Dan Satterberg: I would say it isn't a matter of good person or evil person. It's really about arrogance or humility. And I've certainly met prosecutors who I thought were very arrogant and would not admit the inherent limitations of what they can do to help people who are struggling with parts of the human condition. We have … Our mission statement includes the line that “We exercise our power with humility and fairness.” And humility is what ... that was a word chosen by the people in my office, and I thought, “That's refreshing.” And it is something that we remind ourselves — we don't have the answer to everything. The answer to everything can't be a long prison sentence. Now it is in certain cases — you commit a serious violent crime, you kill people, you shoot people, you're going to face one of our trial prosecutors and they're not going to apologize for sending you to prison. But for so many of the complicated social problems that come to our office, they don't come to us because we're the best option, they come to us because we're the only option.

LB Eisen: Miriam, I know that your organization is starting to think about how to work with law students as they make tough decisions. Can you talk a little bit about what you tell them and some of the work that you're doing as they start to think through, how do I want to spend my career?

Miriam Krinsky: If you don't enjoy locking people up, especially young people of color, you need to be in a prosecutor's office, because every decision that a prosecutor makes to take away somebody's liberty should really hurt and should be difficult and should keep you awake at night and should cause you to want to bring a new vision to your job. And if we're going into law schools and pitching this, if you think you want to be a public defender, that would be great. But we would also love to see you in a prosecutor's office, because we somehow need to break down this notion that this is an adversarial process where both sides are pitted against each other, and instead embrace the view that we're jointly seeking the pursuit of a just result. And we need to join forces to try to bring about changes to the justice system. We're really trying to break down that starting point and to look for individuals who recognize, as Eric and Dan have articulated, that we shouldn't be defining people by the worst thing that they've done.

We need to really try to stay more proximate to those who come into the justice system and look for the humanity in every individual and try to find what is the pathway that's going to be right for them and right for the community while realizing that prison is rarely going to answer that question in the affirmative in both of those instances.

Eric Gonzalez: I'm not going to get into too much of this right now, but it is more and more apparent to me that if we gave victims and survivors of crimes other options, that they would choose incarceration less and less in a lot of cases that right now, the only solution we give them is a sense that if we take it seriously only if the person went to jail.

In particular, there's a sense that law enforcement does not care about communities of color when they are victims of crime. And so that not only are we making sure that we're being fair on the cases we prosecute, but that we actually have the resources to protect vulnerable populations and prosecute cases that in the past, may have been ignored or under-investigated.

Dan Satterberg: The most vulnerable and marginalized people in our society come to us with the label “crime victim.” Now I also know that many people who are crime victims have also been perpetrators of crime, have also been ... It's not an easy one-size-fits-all little box that you are a crime victim. I want to see going forward — and this is just a vision — why can't we use that interaction with the criminal justice system, too, as a place to provide the kinds of supports that we know people need? If you've been a victim of a crime and your case is now in the prosecutor's office, why can't we have a navigator who can help work with you to get you stable housing? Maybe you need help with substance use disorder or behavioral health issues. Why can't we just use that as an intervention point? The way that we are now with people who we’re arresting, the same services that we're giving people in our LEAD program and other programs, why can't we give those to crime victims as well?

So I think it's an opportunity for us to build some more trust and not just use victims to come in and help us prove the case and then say, “Goodbye, see you later," because they're just as vulnerable if not more than they were when they came to us. So that's another principle we can add to the list. It's like, let's make sure that we treat people holistically and give them the support that they need when they interact with our system.

Eric Gonzalez: As we put in more alternatives to incarceration, we make sort of getting through the justice system a little bit more complicated. So we have pivoted in Brooklyn, but it does actually make the role of prosecutors a little bit more complex, because we're in an area that we're not best suited for, right? We're in an area where we're trying to help provide rehabilitative services. That is a switch for DA's offices, so the type of people that my office is looking to bring in now are actually people with that kind of expertise, right? Starting to hire more social workers and people who are licensed to do this type of work.

Emily Bazelon:  You're really talking about unintended consequences, right? And the concern that in trying to make the system more merciful, it can also just ensnare people on these long term relationships with the court system that, in the end, don't make things better. I think it's absolutely an important concern to keep all of our eyes on. I also think as I look around the country, there are places where just these programs don't exist at all. So we both need to make the ones that exist as sensitive to this concern as possible so they can be models, and then also recognize that just having the conversation is kind of a luxury.

 

MICHAEL WALDMAN: Thank you for listening to this episode of Brennan Center LIVE! about how we can reform and transform the prosecutor’s role in the criminal justice system.  We were joined by New York Times Magazine staff writer Emily Bazelon, executive director of Fair and Just Prosecution Miriam Krinsky, King County Prosecuting Attorney Dan Satterberg, and Brooklyn District Attorney Eric Gonzalez. Lauren-Brooke Eisen, the acting director of the Brennan Center’s Justice Program, moderated the conversation.

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