Criminal justice reform starts with the prosecutor

Respect. Self-worth. Hope. Proportionality. These were one-word visions for a reimagined criminal justice system from group of people who have considerable power to make change a reality: prosecutors.

This summer 24 prosecutors from around the country and across the political divide came together in New York to discuss the criminal justice system and prosecutors’ role in it. Their aim was not to gain more resources to maximize convictions or felony charges, but rather to find ways to recognize the needs and the dignity of the communities they serve — including victims, witnesses and defendants — and to build a criminal justice system that better enhances safety and ensures fairness.

{mosads}This kind of convening — organized by the Vera Institute of Justice’s Reimagining Prison initiative and The Institute for Innovation in Prosecution at John Jay College of Criminal Justice (IIP) — was remarkable because prosecutors are some of the most powerful players in the criminal justice system. They wield wide discretion, including over what charges to bring and whether to enter a plea negotiation.

Traditionally, prosecutors are seen as measuring success in terms of convictions, plea bargains or the amount of punishment exacted. But prosecutors are rethinking their role in the criminal justice system. In a time where the future of criminal justice reform at the federal level is uncertain, justice delivery at the local level is even more important, and this shift represents a powerful sea change in thinking. 

The prosecutors attending represented jurisdictions ranging from rural West Virginia, to suburban Alabama, to the nation’s largest coastal cities. Some have been in office for as long as 35 years, while others were elected last fall as part of a wave of reform-minded prosecutors.

Despite the geographic and political diversity, some common themes emerged throughout the meeting. For one, everyone agreed that rehabilitation — which is not currently delivered through incarceration — is a key determinant of public safety. The prosecutors also unanimously agreed on the need for front-end reform: preventing people from being behind bars by implementing alternatives to incarceration, and making sure that other systems, such as education, provide more opportunity to keep people from the criminal justice system entirely.

And what about after prosecution? The prosecutors were in widespread agreement that there’s currently a disconnect between them and other criminal justice system players. “If we want to see lower rates of re-offense, we need to care about what is happening to people while they are in prison,” one prosecutor told us, who argued for communicating more with departments of corrections. Another said that after realizing that the vast majority of his assistant district attorneys — the people in his office responsible for actually trying cases — had never been inside a prison, he had them go see one in person.

And although more than 95 percent of cases result in a plea bargain and don’t go to trial, some prosecutors articulated that sentencing was not under their control, and that those decisions are subject to state laws and judges. However, others argued that prosecutors yield great power through sentencing recommendation and plea bargains; one prosecutor noted that “from the public’s view, we — and we alone — are the sole actor who sends people to jail and prison.”   

In considering how prosecutors contribute to incarceration, the group participated in a discussion about what a reimagined prison system could look like. Prosecutors considered hypothetical cases and gave a wide variety of sanctions that they would recommend for each case, ranging from one to 15 years of prison time, to diversion and probation. 

The diversity of sanctions presented by the group on these cases may make it seem like the criminal justice system is arbitrary, hyper-localized and far from what a reimagined system could look like. After all, there are more than 3,000 local counties, each with their own justice system. However, on that day, we also heard consensus about the need for reform from a broad range of prosecutors. And in the variety of responses, we also saw a range of options for moving past heavy-handed sentences that have helped create mass incarceration.

One of the clearest things we heard from prosecutors was that many want to think about things differently, but they think they are alone. They’re not. Our organizations — The Institute for Innovation in Prosecution at John Jay College of Criminal Justice (IIP) and the Vera Institute of Justice — are partnering with prosecutors from across the country to consider how they can rethink their roles and responsibilities to help create a more effective and equitable criminal justice system.

At the meeting, 24 prosecutors asked hard questions of themselves and each other, and considered how to use their power for public safety rather than solely for punishment. Critical to this shift is recognizing the humanity of each person in front of them and embracing a restorative approach to public safety and the administration of justice.

Fred Patrick is the director of Sentencing and Corrections at the Vera Institute of Justice. Patrick previously served as New York City Deputy Commissioner for Planning and Programs at the NYC Department of Correction, Commissioner of the NYC Juvenile Justice Department and NYPD Deputy Commissioner for Community Affairs. He also served as a faculty member at John Jay College of Criminal Justice.

Meg Reiss is the executive director for the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. Reiss has more than 20 years of legal and criminal justice policy experience, including as an assistant district attorney in the Brooklyn District Attorney’s Office, supervising compliance at the Los Angeles Police Department, and has served as the chief of staff of the Nassau County District Attorney’s Office.

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