Reimagining a Prosecutor’s Role in Sentencing

This article originally appeared in the Federal Sentencing Reporter.

Today, more than 2.1 million people are locked up in county jails and state and federal prisons. Decades of research illustrates that mass incarceration tears apart communities, creates vast racial disparities, and perpetuates cycles of intergenerational poverty. Close to one in ten African American students have an incarcerated parent; one in four have a parent who is or has been incarcerated. Incarceration produces devastating consequences for these children. Independent of other social and economic factors, children with incarcerated parents are more likely to drop out of school, to develop learning disabilities, and to suffer from migraines, post-traumatic stress disorder, homelessness, and depression, among other health issues. And when it comes to one of incarceration’s primary intents, removing individuals from the community with the goal of rehabilitating them, imprisonment fails miserably. In short, incarceration has left a massive footprint on our society, but there is little evidence of its effectiveness.

A report from the National Academy of Sciences points to the minimal impact of long prison sentences on crime prevention and their negative social consequences as a reason to focus on reducing the number of people behind bars. The system is also immensely expensive, costing approximately $270 billion annually without generating the basic public safety benefits one would expect from such a high price tag. For all these reasons and more, today there is strong bipartisan agreement among politicians, law enforcement, advocates, and researchers that the draconian criminal justice policies of the past must be reversed. Yet, despite this political momentum in some quarters, pockets of the country are quick to reverse course out of fear of increases in crime. This can be seen in New York’s changing attitude toward bail reform. The state’s bail reform law was passed by the General Assembly in 2019 and went into effect in 2020. The reforms mandated that defendants who were arrested for most misdemeanors and many nonviolent felonies were to be released without cash bail. When the media and bail reform opponents seized on individual cases involving reoffenses by defendants who were released, some law enforcement officials and policy makers began calling for the law’s repeal, perhaps out of fear that the reforms would cause a crime wave across the state and perhaps because they feared that public and media-driven perceptions of crime would detrimentally
affect their political livelihoods.

Dismantling such a vast infrastructure requires reform at many levels. Required changes include

• revamping state and federal laws to eliminate incarceration as a sanction for certain offenses and to shorten sentences,
• eliminating cash bail to ensure that fewer people are held pretrial simply because they are too poor to pay the fees,
• increasing funding for public defenders so they can serve more people,
• electing reform-minded prosecutors, and
• persuading prosecutors that their policies can transform the carceral landscape.

When it comes to the complicity of prosecutors in increasing prison populations, the last decade has witnessed the emergence of a new wave of local prosecutors who seek to transform their offices’ practices away from past, incarceration-driven policies. Many of those prosecutors have championed treating incarceration as a last-resort sanction and have promised not to prosecute people charged with specific, low-level crimes. For example, in Brooklyn, New York, Kings County District Attorney Eric Gonzalez articulated, in a seventeen-point plan focused on community trust, that “the vision of Justice 2020 is for every [assistant DA] in every case to first seek out nonconviction, non-jail resolutions, and to think through all the available options before reaching a determination that a conviction or incarceration is necessary.” In Chicago, Cook County State’s Attorney Kim Foxx’s office “referred a quarter more people charged with felonies—including drug cases—to diversion programs, including substance use disorder treatment, in her first two years compared with the two years prior, under predecessor Anita Alvarez.”

Many of the newly elected prosecutors have also begun to change their offices’ overall sentencing practices. In Suffolk County, Massachusetts, District Attorney Rachael Rollins instructed her prosecutors to “factor into all charging and sentencing decisions the potential of immigration consequences.” In Philadelphia, DA Larry Krasner ordered prosecutors on his staff to calculate the numbers and contemplate the costs of incarceration associated with each sentencing recommendation.  In San Francisco, former DA George Gascon proposed a sentence review unit to ´comprehensively review, identify, and seek adjustments for past excessive sentences.

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