I’m grateful to the five contributors who graciously wrote such thoughtful responses to the short essay by James Forman, Jr., Maria Hawilo, and me, adapted from our forthcoming book Dismantling Mass Incarceration. I’m encouraged that people with such depth of experience agree that taking apart our system of mass incarceration requires grappling with the question of progressive prosecutors, though we may disagree about exactly what that will mean about their role in the long term.
Our short essay was framed around a core question: Can prosecutors contribute to dismantling mass incarceration? Bennett Capers, a former federal prosecutor of almost ten years, offers an evocative string of decidedly not-optimistic “maybes.” He writes:
Maybe, if the prosecutor is committed not only to charging fewer low-level crimes, but also to reckoning with why some conduct is made criminal in the first place. . . . Maybe, if the prosecutor not only creates a conviction integrity unit, but also . . . advocates for the empowerment of victims, including victims who want mercy instead of cages. . . . Maybe, if the prosecutor is committed not only to reducing racial disparities and holding police accountable for excessive force, but also to acknowledging that, for many, racial disparities and excessive force are a feature, not a bug.
Roundtable
This response essay is part of a roundtable about prosecutors inspired by the new collection Dismantling Mass Incarceration. Read the entire roundtable here.
Capers is well known for an article entitled “Against Prosecutors,” so it isn’t entirely surprising where he ultimately lands. For Capers, even if we ended mass incarceration, he would still be against prosecutors.
I begin with Capers because his response tees up a framework that is at the core of this roundtable on prosecutors: Are prosecutors themselves a feature, not a bug, of our system of mass incarceration? Can they be integral to that system while also contributing to its undoing? In the remaining space, I will explore the contours of these critical questions—which, to be clear, have no easy answers.
I came to see and understand the role of prosecutors from my perch as a public defender. That lens is a revealing one, so I will start there.
One of the core reality-traversing experiences that public defenders undertake every day (there can be many) is to receive plea offers from prosecutors—delivered in emails and documents, buried within paragraphs of rights and waivers and legal requirements—and to then convey those offers to, and discuss them with, the human beings on the receiving end of them. Human beings with mothers, fathers, sons, daughters, homes, jobs, neighbors, goals, hopes, desires. Human beings traveling the same road of self-understanding and self-definition that we are all on, always. It is pure cognitive dissonance, this back-and-forth. In that interstitial space lies the work of attempting to translate myopic, punishing laws to intrinsically complex human beings who will be hurt by them. And the work of also trying to translate the other way, engaging the prosecutors who wield those laws as they showcase their power and extract compliance. Engaging them in attempts to correct a particular myopia.
This back-and-forth work is often rendered invisible in the criminal legal system. But it is, in many ways, right at the very heart of it. It is where prosecutors, the engines of deep power, can be engaged. It is where the power of the system to punish lives and grows. It is where real people are profoundly injured: hopes and dreams crushed, families separated, senses of self upended. As a public defender, I learned that plea bargaining was the central punishment engine in a system that stretches far in either direction around it, from street policing to voter disenfranchisement. In that middle part, after arrest but before you know what the future holds, the joystick lies entirely in prosecutors’ hands.
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As Angela J. Davis and David Ayala both highlight, prosecutors decide what to charge. This decision is not as simple as it might seem. Prosecutors can charge something more serious than what a person might end up convicted of; this can determine whether pretrial detention is triggered, whether a potential mandatory minimum is triggered, what the maximum possible sentence is, which court handles the case—and it will, always, shape the nature of plea offers given down the road. Starting high maximizes coercive impact. Prosecutors can also charge multiple offenses around one incident. Prosecutors then, if they choose, make plea offers. They decide what charge you might be able to plead guilty to, what kind of sentence you might be exposed to, and, thus, what your entire future might look like.
Prosecutors largely do all of this without ever meeting the person on the receiving end. This particular myopia—the laser focus on one facet, one sliver of a human life—is, in many ways, what our system of punishment is built upon. I have focused here on plea bargaining because it is emblematic of prosecution. But also because it is emblematic of, and an engine of, our system of mass incarceration. It is not its cause, to be sure—the causes of this monstrous system run far deeper than that. But it pushes it forward, fueling it on a daily basis.
In Dismantling Mass Incarceration, we intentionally did not prescribe what the route to ending mass incarceration must look like. We sought instead to ask genuine questions, ones we ourselves don’t know the answers to. The question of whether prosecutors can help dismantle mass incarceration is one of these: we ourselves remain uncertain.
The answer will undoubtedly vary depending on what the reader thinks it would even mean to end mass incarceration. Is the goal to cut the prison population by a third? Or to permanently empty prisons and uproot whatever social, racial, and economic factors one believes caused it in the first place?
I suspect that some of the participants in this roundtable might lean closer to the first vision of ending mass incarceration, and others would lean more in the direction of abolition. Regardless of their varied perspectives, however, they unanimously make a moving case for the role prosecutors could play in dismantling mass incarceration—even Capers, in his skepticism, doesn’t dismiss it outright. This rare accord should make us sit up and take notice. There is no disagreement about the tremendous power prosecutors wield. There is no disagreement that they have inflicted significant harm. There is, it appears, meaningful agreement that one of the multiple paths we should pursue toward ending mass incarceration runs through their offices.
Larry Krasner and Mary Moriarty, both former public defenders and now lead prosecutors, offer countless concrete examples of redirections their offices have undertaken: Moriarty’s office has created a program that diverts children from entering the system with car theft charges; after a seven-month period, they saw a 51 percent decrease in children being presented for car theft prosecutions. I have represented children charged with car theft and much more. It is not possible to convey on paper what it can mean for a child’s future for them to never see the inside of a detention facility. Krasner highlights significant reductions in prison populations, child incarceration rates, probation and parole rates, prosecutions undertaken across the board, and more. He writes that “the future years of jail and prison generated in Philly criminal courts are down about 50 percent annually, as compared to prior (traditional) Philly prosecutors’ administrations.” Notably, Moriarty won every ward in Minneapolis when she ran for office, and Krasner won reelection with high margins, especially in areas facing high rates of gun violence in Philadelphia.
Powerfully, both Krasner and Davis note that, if reform-minded prosecutors were not accomplishing meaningful change, they would not be under such attack. Krasner writes, “While not all supporters of decarceration view reform prosecution as an effective weapon against mass incarceration and its hegemonic cultural foundations, the (arguably fascist) supporters of mass incarceration clearly do.” And Davis notes, “Critics of progressive prosecutors who don’t think they are bringing about meaningful change should ask themselves why state legislatures, judges, and governors are attempting to remove these prosecutors or limit their power.”
One of the opening questions for this roundtable is whether we can pursue multiple paths at once. One of the clearest takeaways from this roundtable is an emphatic answer: How can we not? People are suffering now. And complex structures that have been built over years must be intentionally and carefully taken apart. These problems necessitate different paths at once. Law scholar Jamelia Morgan captures the tension inherent in this necessity in her essay “Abolition in the Interstices”: “non-reformist reforms provide an invaluable framework, yet even here, activists need to think holistically about their obligations and strategies, for pursuing non-reformist reforms will sometimes conflict with our duties to mitigate harm in the here and now.”
Every contributor to the roundtable, in positing or agreeing that prosecutors can be vehicles toward some change, is clear to say that these changes are not enough; they do not signal that the work is done or that all goals have been met. But they stop some of the gears from relentlessly turning. For those seeking much more, the kinds of policy and culture changes prosecutors can make are perhaps stops along the way. For those parents whose children slept safely in their own beds at night rather than in children’s jails, for those released from prison through conviction reviews, for those who kept their homes and jobs because they were not arrested and detained, and for those not living under state surveillance for years, these changes might be everything.
Image: Martin Adams/Unsplash/Inquest
