Biden can rebuild trust in our justice system by prioritizing prosecutorial reform

After 40 years of punitive criminal justice policies that swelled the American prison system by 500 percent, this year’s election may have marked the beginning of the end for the “tough-on-crime” era. Voters in red and blue states alike overwhelmingly supported measures to promote fairer and safer policing practices, California restored voting rights to some 50,000 residents on parole, four more states joined the movement to legalize cannabis and Oregon voters made the bold, unprecedented move to decriminalize the use of all drugs.

Now, as President-elect Joe Biden and Vice President-elect Kamala Harris get ready to take office in January, they have a mandate to transform the criminal legal system. They’ve already expressed their support for several important reforms pending in Congress. But, they must also remember that fewer than 10 percent of people incarcerated in the United States are held in federal facilities; the vast majority of those behind bars are in local jails and state prisons. So, the fate of most people involved in the criminal justice system is not decided by Congress or the White House, but inside the black box of a local prosecutor’s office. 

Fortunately, the new administration will coincide with a time of historic ongoing change in the field of prosecution. Over the last four years, dozens of local prosecutors have been elected on platforms centered on countering mass incarceration, treating substance use as a health issue instead of a crime, ending the criminalization of poverty, holding law enforcement accountable and embracing second chances. Just this year, at least 20 new reform-minded prosecutors, together serving more than 24 million Americans, were chosen by voters to serve places as diverse as Los Angeles; Chatham County, Georgia; Lake County, Illinois; and Washtenaw County, Michigan, while over a dozen more were reelected to another term.

These developments have the potential to fuel the new administration’s criminal justice agenda because prosecutors wield vast power to determine whether someone comes into the justice system and the course of their case thereafter. They control which charges to bring and make the high-stakes determination of whether to seek to keep people in jail as they await trial – which, in turn, makes them four times more likely to be sentenced to prison than if released pre-trial. 

Prosecutors also decide what charges and evidence are presented to a grand jury (in effect controlling who is indicted) and control plea offers. Since 97 percent of federal cases and 94 percent of state cases end in plea bargains – with defendants pleading guilty in exchange for a lesser sentence, rather than rolling the dice at trial – prosecutors steer the outcomes in the vast majority of cases. And their often unquestioned decisions can have serious ramifications for people in the justice system: A recent study of 2,400 exonerations over the last 30 years found that prosecutorial misconduct played a role in 30 percent of cases.

The new wave of reform-minded prosecutors has not gone without opposition, however. Over the last four years, reform prosecutors across the nation, especially Black women, have faced relentless criticism and attacks. Echoing laments of police unions and the Fraternal Order of Police, President Trump and Attorney General William Barr have repeatedly attacked local prosecutors working to hold police accountable and promote equity. Most recently, the President’s Commission on Law Enforcement targeted reform prosecutors’ purported “underenforcement” of the law (until the Commission’s work was stalled by a federal court’s finding that they violated the Federal Advisory Committee Act given their one-sided composition and lack of transparency). And Barr has designated several cities “anarchist jurisdictions” – threatening to cut them off from federal funds – because of their prosecutors’ decisions not to charge peaceful protestors. 

Against this backdrop, the new administration’s ability to impact the criminal justice system will depend, in significant part, on its ability to support and work alongside local prosecutors. To start, a robust task force on “21st Century Prosecution” can propel a new national vision of what it means to be a fair and just prosecutor — and a strategy for how to get there. The Biden criminal justice plan appears to acknowledge the importance of these issues, committing to “establish an independent Task Force on Prosecutorial Discretion … to make recommendations for tackling discrimination and other problems in our justice system that results from arrest and charging decisions.”

With our new vice president bringing her own experience as a former prosecutor, the next administration is uniquely suited to ensure that this focus on prosecutors is a prominent part of its agenda. And long overdue criminal justice reforms can reinforce the bold changes local prosecutors are advancing in communities around our nation.

There are over 2,300 local elected prosecutors across the U.S.; many have yet to embrace the growing tide of reform, even while the American public is hungry for change. A new generation of prosecutors across the U.S. needs 21st century principles, tools to measure success beyond convictions, guidance for exercising restraint when entry into the criminal system only propels further harm, and best practices for enhancing accountability and transparency along the way. The Biden-Harris administration has the opportunity to lead prosecutors across the country toward this North star and, in so doing, rebuild trust in our justice system.

Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution and a former federal prosecutor.