Reform Prosecutors Claim Success in Reducing Incarceration

A “new generation” of prosecutors has been instrumental in lowering incarceration rates in the jurisdictions where they have been elected on reform platforms, according to a new paper released by Data for Progress, a non-profit advocacy and research group.

The paper said a survey of 19 “progressive” city, state and county attorneys in 14 states found that 95 percent reported their policies—which ranged from eliminating cash bail to creating programs that provided alternatives to incarceration—had lowered jail and prison populations without significantly endangering public safety.

More than 80 percent reported they have stopped prosecuting low-level and nonviolent offenses such as marijuana possession.

“Every single one of the respondent prosecutors has implemented policies or practices in one or more of these areas that are designed to reduce the number of people they send to jail and prison, and an overwhelming majority—95 percent—indicated that these policies have in fact led to a decrease in their local jail or prison populations,” reported Data for Progress, which describes itself as a “think tank for the future of progressivism.”

The group claimed its survey, released Thursday, represented a first-ever effort to quantify the net impact of the progressive prosecutor movement so far.

The summer 2021 poll was conducted in the midst of a surging increase in violent crime that many critics linked to the reforms. Criminologists, however, have argued that available evidence shows the increase in crimes like murder—which has slowed since last year—is not linked to reforms that have targeted mostly nonviolent offenders.

And violent crime has increased in cities and counties places where “traditional” prosecutors are operating.

Nevertheless, the growing “tough on crime” rhetoric adopted by many politicians and reinforced by public opinion polls, has added to the climate of siege for the progressive prosecutor movement, which began picking up traction with the election of reform attorneys in major urban areas like Chicago, Philadelphia, Boston, and San Francisco over the past five years.

Despite winning reelection this year with commanding majorities, several of the prosecutors are facing recall movements.

The survey also revealed growing concern among the reform prosecutors about the sustainability of their efforts. Ten of the 19 respondents cited worries about the availability of sufficient resources to back up and expand their efforts.

“I would like to divert more people away from the court to a more restorative and supportive system, that could also meet the needs of the person harmed, but few of these [systems] exist,” said one.

A majority of the respondents also said funds for improving research and data collection were critical to strengthening the arguments for change, not to mention persuading skeptical legislatures that the investment of tax dollars was worth it.

The 19 prosecutors who took part in the survey represent only a fraction of the nearly 2,500 elected attorneys across the nation, but they have significantly changed a reform conversation that had been focused on other parts of the criminal justice system.

Most traditional reform strategies assumed that district attorneys embodied the most change-averse parts of the system.

“Local prosecutors possess unparalleled power,” the paper noted. “They have nearly unlimited discretion in deciding who to charge, the type of crimes to charge, and the severity of punishment at sentencing.

“They are also primarily responsible for determining who stays in jail and who can be released back to their communities while awaiting trial, and they wield unmatched influence in determining the kind of criminal laws and penalties enacted by state legislatures.”

The survey covered prosecutors from a diverse group of jurisdictions, including large cities like Chicago and Boston as well as smaller or rural markets in North Carolina and Texas.

Satana DeBerry

Among the “case studies” highlighted was the record of Satana DeBerry, the District Attorney for Durham County in North Carolina.

DeBerry, a former small-town defense attorney, was elected in 2018 as the chief judicial officer for a county of 320,000 people. Shortly after taking office, she directed her staff to decline prosecution for low-level nonviolent offenses such as marijuana possession, trespassing and prostitution, and instituted a pretrial release policy that eliminated bail for lower-level offenses. During the pandemic, she ordered the release of jail inmates to mitigate the spread of disease behind bars.

According to a report by the Duke Wilson Center for Science and Justice, cited in the Durham County District Attorney’s Office Annual 2020 report, the county’s total jail and prison populations shrank by 40 percent “without causing an increase in arrests or cases involving failures to appear in court.”

Media attention has focused on outspoken prosecutors like Larry Krasner in Philadelphia, Chesa Boudin in San Francisco, and Rachael Rollins in Boston—all of whom have been targets of fierce lobby groups led by police and conservative legislators.

San Francisco’s Boudin, for example, (who is facing a recall effort) told the survey the jail population has “declined from an average daily population of approximately 1,200 people in custody at the start of my tenure to fewer than 800 people in jail currently.”

Boudin acknowledged that some of the decline was linked to reduced arrests during the pandemic, but he added “much of it is also related to proactive efforts, led by my office, to reduce the number of new people detained and prioritize the resolution of cases of people previously in custody.”

Boudin added that the decline occurred even as “overall crime is down by double digits” in his city.

“We have demonstrated that it is possible to safely decarcerate,” he said.

In Chicago, State’s Attorney Kim Foxx, who won her reelection campaign handily last year, reported that 3,590 individuals have graduated successfully from felony diversion programs. She told the survey-takers that in the second term her office would “[double] down on our efforts to make sure that people with substance use disorder or mental health issues have the resources they need in communities so we can stop the de facto use of our justice system.”

Many of the reform prosecutors say they are unruffled by the powerful forces aiming to unseat them, noting that they were reelected with significant majorities.

Supporters say the success of the reforms provides a template for other jurisdictions.

“These elected officials are showing what is possible when we imagine a radically different future where everyone in this country receives equal justice under the law and communities are safer,” said Whitney Tymas, Founder and Executive Director of Black Women Forward and Black Women Forward Action Fund.

“Their boldness and bravery to implement innovative policies and disrupt the status quo is inspiring. It is past time that our criminal legal system treats everyone in this country with the dignity and respect they deserve.”

All the prosecutors in the survey said they had put in place or strengthened programs that divert convicted individuals away from incarceration and towards rehabilitative and educational services—such as substance abuse and mental health counseling—in an effort to address the drivers of criminal behavior.

Under the diversion programs, charges are dismissed if certain conditions set by the court are fulfilled, such as completing a course of rehabilitation or performing community service.

Nearly half (47 percent) said they had established Conviction Integrity and Sentencing Review units aimed at identifying wrongful convictions.

Despite the emergence of Black female prosecutors like Foxx and Rollins, the demographics of the nation’s prosecutors still disproportionately reflect the population. According to a 2014 report by the San Francisco-based Women Donors Network (WDN), more than 95 percent of the 2,437 elected state and local prosecutors were white and 79 percent were white men.

And although a small, but growing number of reform DAs come from the defense bar, the overwhelming majority have risen from the ranks of prosecuting attorneys—a fact that critics say has deeply influenced the culture and mindset of the nation’s justice systems.

Philadelphia DA Larry Krasner. Photo by Michael Thielen via Flickr

At the same time, despite the relatively small sample group, anecdotal evidence suggests that larger numbers of DAs and prosecutors who reject the “progressive” label are in fact pursuing similar innovative policies—though they are still far from the majority.

Speaking earlier this month at a webinar on “Rethinking Punishment” organized by the Center on Media, Crime and Justice, publisher of The Crime Report, Philadelphia DA Larry Krasner claimed that the progressive prosecutors’ movement embodies a growing public anger over mass incarceration.

Krasner, who was decisively re-elected this month, said his victory and the continued strength of other reform-minded prosecutors demonstrates the staying power of the popular movement for justice reform.

“If the progressive prosecutors became a political party, they would be outdoing the Democrats and Republicans every damn day.”

The paper was produced by Prerna Jagadeesh, Isa Alomran, Lew Blank, and Gustavo Sanchez.

Additional reading:  He’s Remaking Justice in L.A. But How Far is Too Far?  New York Times Magazine profile of DA George Gascon

A link to the full survey will be available later today. Readers interested in getting an early copy can contact TCR Editor Stephen Handelman at stephenhandelman20@gmail.com