POLITICS
05/29/2018 09:44 am ET Updated May 29, 2018

If You Want To Totally Change America's Criminal Justice System, You Need A Plan

This group has one.
Erika Kyte via Getty Images

For decades, the process by which America chose its district attorneys was simple: Top prosecutors piled up convictions and issued harsh sentences, built reputations as “tough on crime,” and, most of the time, won re-election. When they retired, their assistants often replaced them. And prosecutors almost always ran for re-election unopposed.

Now all that is changing: Voters fed up with a system that has made the U.S. the world’s leading prison state have swept a wave of reform-minded district attorneys into office.

But there’s a problem. Reformers are still a tiny minority among America’s 2,400 prosecutors, and there’s no road map for changing how prosecutors do their job. The old system was simple: When in doubt, throw the book at the accused. The reformers need a way to learn from each other — to share ideas, policies and best practices.

Miriam Krinsky, who left a 15-year career as a federal prosecutor in Los Angeles and Baltimore disillusioned by the role of prosecutors in the criminal justice system, is trying to offer a solution to that problem. Fair and Just Prosecution, the bipartisan nonprofit organization she founded after the 2016 election, trains and connects prosecutors who want to move past an incarceration-based model of justice to one that is more equitable, humane and accountable.

She’s already working with more than two dozen reformist district attorneys across the country — and, with numerous reform-minded prosecutors running and winning again this year, she may see her numbers grow further. Fair and Just Prosecution is ready: Its budget is over $2 million per year. Funders include Open Philanthropy, the Chan Zuckerberg Initiative and Art for Justice.

“Almost all of these progressive chief prosecutors in their own jurisdictions are outcasts,” explained Larry Krasner, the Democratic Philadelphia district attorney who has shaken up his city’s criminal justice system by refusing to press charges for various low-level marijuana and sex worker offenses and by ordering his office to not seek cash bail for numerous charges. “When you are the vanguard and you are the outcast in your statewide organization, it’s important to have a lifeline to these other progressive people.”

Although the prosecutors involved in the organization don’t agree on every issue, they all agree that the criminal justice system is too large, that alternatives to incarceration can be effective and that it’s critical to address the racial disparities of the criminal justice system.

“By and large, they agree that the old measures of numbers of indictments, trials and conviction rates are not the kind of metrics that should be viewed as success,” Krinsky said.

When you are the vanguard and you are the outcast in your statewide organization, it’s important to have a lifeline to these other progressive people. Larry Krasner, Philadelphia district attorney

It’s hard to overstate how much a shift that is. For years, the vast majority of district attorney races just haven’t been competitive. Eighty-five percent of incumbents run unopposed. So, they remain in office, sometimes for decades. At the end of their careers, many are replaced by former assistants who continue the same draconian policies. Those policies, reformers say, have been a key driver behind the dramatic growth of the inmate population in the U.S. ― a 500 percent surge since the 1980s. The U.S., with less than 5 percent of the world’s population, is now home to more than 20 percent of the world’s prisoners. And even when not caged, 1 in every 37 adults are under some form of correctional supervision.  

“The attitude of the district attorney’s office has always been playing to this fascist ideal of strongman or strongwoman being ‘tough on crime.’” Krasner said. “In that world you just want to emphasize bad people getting long sentences, how many cases you win, bringing more felony cases than ever. But that’s not a meaningful, sensible definition of justice.”

The prosecutors in the group learn from each other — and apply lessons from other jurisdictions to their own. Seattle’s Dan Satterberg, a Republican who helped launch a program in 2011 that handles low-level drug and and prostitution crimes outside of the traditional criminal justice system, inspired Beth McCann, Denver’s Democratic DA, to investigate bringing a similar program to her city. An FJP event motivated Diana Becton, the DA in Contra Costa, California, to start tracking racial disparity in the criminal justice system in her county. The group helped Sarah George, a top prosecutor in Burlington, Vermont, find a grant opportunity for a community court — an alternative court model that can divert defendants from jails. And they connected Melissa Nelson, a state attorney in Jacksonville, Florida, with a private foundation that is running a study on data collection practices to help better inform office decision-making.

FJP also stands by prosecutors facing opposition from rival prosecutors or politicians because of their reforms. Aramis Ayala, the new Democratic chief prosecutor in Orlando and the first black elected prosecutor in Florida, announced in March that her office would no longer seek the death penalty. The backlash from opponents was swift. Florida’s Republican Attorney General, Pam Bondi, called the move “a blatant neglect of duty.” Gov. Rick Scott (R) recused Ayala from prosecuting a case involving the death of a police officer and removed about two dozen other homicide cases from her office. But FJP stood up for her, filing an amicus brief with the Florida Supreme Court arguing that she has the discretion to decide whether to seek the death sentence. (The state’s supreme court ultimately sided in favor of the governor in a 5-2 ruling.)

The challenge going forward is to widen the community of prosecutors who believe in reform. That means the groups needs to reach not only top prosecutors, but also the deputies and assistants who may eventually replace them. FJP has plans for that, too: With help from the Brennan Center for Justice at New York University’s School of Law, the group is developing a training curriculum for junior staff prosecutors that introduces them to alternatives to incarceration.

Krinsky, the former prosecutor who founded the group, left the criminal justice system feeling that it was throwing away generations. But she’s increasingly heartened that more Americans are understanding what she came to know: “We can’t incarcerate our way out of poverty, mental illness and drug addiction.”

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