October 17, 2017
Busting the "myth of the progressive prosecutor"
Much advocacy and debate over modern criminal justice reform has come to give particular attention to the role of prosecutors. In turn, it sometimes seems that some reform-minded folks seem to believe or suggest that getting the right persons to serve as prosecutors can be a kind of modern magic criminal reform elixir. Against that backdrop, I found this new New York Times op-ed refreshing and important. It is headlined "Cyrus Vance and the Myth of the Progressive Prosecutor," and here are excerpts:
[T]he Manhattan district attorney, Cyrus Vance Jr., ... is considered one of America’s most progressive prosecutors and has the accolades to prove it. In 2015, he helped create the Institute for Innovation in Prosecution at the John Jay College of Criminal Justice. Two years earlier, Attorney General Eric Holder gave him an award for having developed a partnership between local youths and law enforcement aimed at reducing violence.
Sure, he often says the right thing, as when he told New York Law School’s graduating class in 2015 that he had recognized racism in the criminal justice system “long before the term ‘mass incarceration’ entered the general conversation,” or when he wrote in the black-owned Amsterdam News last month that he has helped to reduce “unnecessary contact with the criminal justice system” among Manhattanites.
However, like many prosecutors across the country who get credit for changing the game while continuing draconian practices, Mr. Vance simply isn’t the reformer he paints himself as. Look at the data. Manhattan holds less than 20 percent of the city’s population, but on an average day, almost 40 percent of Rikers Island inmates are from the borough. This disparity has been attributed in part to his office’s zealous prosecution of misdemeanors. As of 2015, Mr. Vance was more likely to prosecute a misdemeanor charge than any other district attorney in New York City.
And despite lamenting racism in the criminal justice system, Mr. Vance perpetuates worrisome racial disparities. A 2014 Vera Institute of Justice study found that black and Latino defendants prosecuted by Mr. Vance’s office were more likely to be detained at booking, compared with similarly situated white defendants. And last year, 51 percent of marijuana cases involving black defendants in Manhattan ended in conviction, while only 23 percent involving whites did.
Nor is Mr. Vance the only faux reformer. The New Orleans district attorney, Leon Cannizzaro, claims that his office “has worked aggressively to reform New Orleans’s criminal justice system.” But his actions indicate that he values convictions over his community. He has locked up rape victims who refused to testify against their assailants and has served fake subpoenas to pressure witnesses to talk. Mr. Cannizzaro defended a sentence in which a 17-year-old was sent to prison for 99 years for an armed car robbery, even though no one was injured during the crime. His office tried to sentence a man to 20 years in prison for stealing $31 worth of candy.
The Los Angeles district attorney, Jackie Lacey, is a Democrat who has benefited from the public’s perception that she is a reformer. This is something she has fed herself, bragging to a Los Angeles Sentinel reporter that she has read “The New Jim Crow” by Michelle Alexander and has seen Ava DuVernay’s documentary “13,” about the connection between slavery and mass incarceration. But Ms. Lacey’s values have consistently lagged behind those of her constituency. In ballot initiatives, Los Angeles County residents supported shorter sentences for low-level and nonviolent property and drug crimes and wanted to legalize recreational marijuana use for adults. Ms. Lacey opposed both. And although the county voted in favor of abolishing the death penalty, she continues to support it. Last year there were just 31 death sentences nationwide. Ms. Lacey’s office secured four of them....
So it’s especially frustrating that many of those who are praised as change-makers are at best making bite-size improvements. And because they say the right things, the public gives them a pass: Mr. Vance is running unopposed for a third term, and Ms. Lacey also ran unopposed in her last election.
The progressive bombast is meaningless if prosecutors continue to promote the same harsh practices behind the scenes. Instead, voters must look closely at their policies and hold them to high and specific standards. We should ask: Are prosecutors opposing new mandatory minimum sentences during legislative debates? Have they declined to request cash bail in a vast majority of cases? Are they keeping children out of adult court and refusing to seek life-without-parole sentences for them?
Over 1,000 prosecutors will be up for election next year in places like Dallas, San Diego, Seattle, Oakland, Calif., and Charlotte, N.C. Voters ought to make sure the people who win these crucial races are actual criminal justice reformers, not just people who say they are.
Over at Simple Justice, Scott Greenfield here also gives attention to this notable op-ed by calling out some more current and former prosecutors for their questionable reform credentials. He also adds these sharp comments that reflect my view that reforming the law is even more critical than reforming who applies the law (though that matters, too):
[E]ven the [progressive prosecutors] who aren’t taking bribes, who can quote Maya Angelou from memory, are still prosecutors. To some extent, the conflict is inherent in the job; prosecutors prosecute based on law. They are not the avenging angels of social justice, but just avenging angels.
The irony of calling for more criminalization in one place (say, revenge porn) while bemoaning criminalization in others (say, marijuana) eludes many. But over-criminalization only seems to register in progressive minds based on fashion trends, forgetting that the crimes they hate today were once just as fashionable as the crimes they love today.
And this is where they fail to grasp how their cries for “justice” make little sense, since “justice” is mostly a matter of whose sad story prevails, the accused or the victim, at any given moment. Ask any victim about “justice” and there is a good chance their foremost concern won’t be educational opportunities in poor urban schools.
But what Duffy makes clear is that there are real ways in which prosecutors can exercise their authority, their discretion, to bring reform to their jobs, by eliminating false confessions, suggestive identifications, Brady violations, junk science, needless bail, abuse of power, covering for killer cops and the big one, not going for death.
October 17, 2017 at 12:03 PM | Permalink
"The irony of calling for more criminalization in one place (say, revenge porn) while bemoaning criminalization in others (say, marijuana) eludes many."
It doesn't elude me. I'm been calling this "prison bed musical chairs" for at least the last decade. On the other hand, Scott Greenfield is not one to talk. The irony of a man who is a pompous ass attacking other pompous asses is not lost on me. It's difficult to figure out which is worse: the man like Vance who sees every free person as a criminal who has manged to elude justice or a man like Greenfield who sees every criminal as a victim of a racist broken system. Both are obsessives, they just obsess in different directions.
Posted by: Daniel | Oct 17, 2017 12:45:16 PM
"And last year, 51 percent of marijuana cases involving black defendants in Manhattan ended in conviction, while only 23 percent involving whites did."
That means fewer cases against white had merit. The bias is against whites, not against blacks.
Posted by: David Behar | Oct 17, 2017 2:01:27 PM
Isn't the simplest and most effective remedy to end prosecutorial immunity from criminal and tort liability? If any decision violates a rule of conduct or of court, the negligence should be per se.
Posted by: David Behar | Oct 17, 2017 10:44:40 PM
Another, related commentary: https://gritsforbreakfast.blogspot.com/2017/10/the-myth-of-progressive-prosecutor.html
Posted by: Gritsforbreakfast | Oct 18, 2017 9:55:10 AM
Grit's piece is good reading.
Like the "Secretary of Defense" really more akin to the "Secretary of War" at times, and the whole "Department of Peace" concept, I wonder if it is possible to reformulate the "prosecutor's office" to be more like a "justice office" or some such thing. But, we are working under a model where there are seen as two sides (prosecution v. defense), when there is really some major overlap here.
Posted by: Joe | Oct 18, 2017 1:02:12 PM