Wednesday, October 18, 2017

'The Myth of the Progressive Prosecutor'

Josie Duffy Rice has a solid piece in the NY Times on "the myth of the progressive prosecutor." Grits agrees with much of what she says, with one caveat: To me, the problem isn't the hypocrisy of a Cyrus Vance or a Kim Ogg but that the fundamental job of the prosecutor is based on regressive values, attitudes and approaches.

The day-to-day tasks of the prosecutor's job contribute to a myopic worldview that is emotionally victim-centric and economically regressive, regardless of the ideology-upon-entry of this or that District Attorney at the top of a local system. A victim-centric worldview isn't inherently bad, but the prosecutor's version too often fails to recognize that victims and criminals frequently turn out to be the same people, with the differences in characterization mostly temporal and situational. That's why, for example, defense attorneys present mitigation evidence to juries at capital murder trials that more often than not these days dissuade them from a death sentence: Human beings ultimately are defined by the totality of their experiences, not their single worst bad act. But in the prosecutor's world, that one bad act is everything - if they can make the case that the defendant's behavior fits the details from the statute describing a crime, their job is done.

That's the reason that, at DA offices, management changes, but the day-to-day operations remain much the same as they functioned when our grandparents ran much-smaller versions several decades ago. Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it.

That's not to say it wouldn't be possible for a DA to fundamentally redefine the job. They have enough discretion to where all sorts of interesting possibilities might present themselves if smart people put their minds to it - IMO, restorative justice approaches likely offer the best opportunity to re-imagine the position in a way that lets them retain their victim-centric approach.

But Josie's right that that's not the mentality of the so-called progressive prosecutors being elected so far. Instead, they have mostly stuck to rolling back the most over-the-top tuff-on-crime policies but haven't really challenged the assumptions underlying the day-to-day activities their employees perform at their jobs. The reason, though, IMO, is not a lack of nerve nor moral fortitude, but more fundamentally a failure of imagination.

RELATED: Here's a good, recent analysis out of Stanford on "The Problems with Prosecutors." SEE ALSOWhy are prosecutors putting innocent witnesses in jail?


Charles Kuffner said...

"To me, the problem isn't the hypocrisy of a Cyrus Vance or a Kim Ogg but that the fundamental job of the prosecutor is based on regressive values, attitudes and approaches."

The story mentioned other prosecutors, but not Ogg. I'm curious as to why you include her here. Do you have a specific action of hers in mind, or are you saying that by having the title "District Attorney", she is inherently tainted in some way? Thanks!

Gritsforbreakfast said...

Ah, hey Chuck. She's referenced via links in the post, and her reforms are of an essentially similar character, though perhaps less far reaching, as Vance's. Like the trace-case issue, they're things that mostly have as much of an internal, practical justification as a progressive one. Even if all of her reforms are implemented, it won't be a panacea and, as with Vance, certainly will not eliminate racial disparities in the system. The ADAs under her are mostly the same and for the most part they're performing the same tasks, in the same way, that they were this time last year.

So yes, I'm saying that a DA who comes in and simply picks up the reins their predecessor put down "inherently" will perpetuate the problems attributed to DAs of the past. ("Tainted" is your word, my argument was that the situation was structural and not a function of individuals' failings, except perhaps a failure of imagination.) To truly transform a DA office, one must do more than change the name plate on the biggest corner office.

Anonymous said...

At the end of the day, it's not the job of the DA to make law. That's a legislative function. The decision to not prosecute "trace cases," while perhaps within a DA's discretion, is still effectively decriminalizing conduct which the legislature has proscribed. If the public doesn't want these cases being prosecuted, that policy needs to be addressed in Austin-not on an ad hoc basis from county to county. The same logic applies to many of the rehabilitation schemes which are being implemented by some "progressive" DA's but which are outside of the parameters of the Code of Criminal Procedure. If the public wants a treatment first requirement (which already exists under Texas law for most first time drug offenders) then that policy decision needs to be debated and implemented by the Legislature-not a single elected DA.

In my opinion this whole notion of the "progressive prosecutor" is kind of silly; and transparently political. When crime rates are low (especially violent crime rates) it's easy to nibble around the margins, as GFB puts it, and pander to liberal (and in many instances Libertarian) media, policy wonks and constituencies. But when crime goes up (and recidivism rates increase), the voters (yes, voters) tire quickly of the feel good, "hug a thug" policies these so-called progressive DA's are so proud of. At that point, the public expects prosecutors to actually be prosecutors; and for them to utilize the resources allocated to them by the legislative and executive branches to advance public safety. To the extent that mitigation remains a consideration, it is primarily up to the defense attorneys, judges and juries to fulfill their equally important roles in the criminal justice system (as also established by the Legislature) and give voice to those concerns.

Anonymous said...

So why haven't reform-minded prosecutors been more progressive? Grits offers one hypothesis; I'll offer another hypothesis. For the sake of topicality I'll call it the "Kamala Harris problem". The reason that more prosecutors are not reform minded or don't take reforms seriously is because almost all of them harbor grander political ambitions. Most of these men and women want the mantel of reform because that looks good politically without any of the attendant risks associated with real reform. In my view on of the best ways to reform the prosecutor position structurally is to destroy the prosecutor-higher office pipeline. No one has a fundamental right in this country to run for any office they chose, so there is no good reason why we can't forbid any prosecutor from running for any office office that is not prosecutor-related. This would remove a significant incentive for a prosecutor to act "politically".

Unknown said...

>But when crime goes up (and recidivism rates increase), the voters (yes, voters) tire quickly of the feel good, "hug a thug" policies these so-called progressive DA's are so proud of

In King County, Washington, Deputy Prosecutor Manka Dhingra's mental health courts and diversion programs are protecting my safety (and I vote in every election).

Her eyes light up when she talks about turning someone's life around and seeing them take on an honest job and a law-abiding life.

I feel safer if someone is turned into a productive citizen than I do if they come back to the street after years of being institutionalized.

Gritsforbreakfast said...

@11:08, first, Harris County was the only one prosecuting trace cases that way - The DAs had been using their discretion to TAKE the cases, there didn't need to be a law change. Misdemeanor paraphernalia possession was already on the books. So either your comment is disingenuous or you just don't know what you're talking about.

Second, polling and experience say you're describing a public mentality that hasn't been that way in 20 years. Kim Ogg, for example, was elected during a period when violent crime was on the rise, but voters (yes, voters) chose her approach over Devon Anderson's. So not much you've written here holds up, though I'm sure your themes will successfully comfort your colleagues that they're right and the bad ol' reformers are wrong when you all get together at the next TDCAA event.

DLW said...

11:08, DA's absolutely have the right to decide what cases to prosecute, whether to offer a plea deal, how many charges to bring, what sentence to seek and the nature and degree of the charges to be filed. Prosecutorial discretion is deeply ingrained in American Law.

Also, the fact that the Legislature has decided to ALLOW certain prosecutions or enhancements is not the same as REQUIRING those prosecutions or enhancements.

Anonymous said...

GFB response to 11:08 and DLW,


Anonymous said...

Every part of the criminal justice system continues to be scrutinized by Evidence Based Practices and the outcomes produced, except for office of the prosecutor. Who knows, research might find prosecutorial discretion is directly linked to jail overcrowding, lengthy backlogs, high revocation rates...
Maybe its time?

wolf sittler said...

I agree that prosecutors have long been the drivers of mass incarceration. The fact that they are elected seems to pose a direct conflict of interest to their duty as described in the Texas Code of Criminal Procedure:
"it shall be the primary duty of all prosecuting attorney's, including any special prosecutors, not to convict, but to see that justice is done."
Far to many convictions have political overtones.

Anonymous said...

I'm just a regular citizen observing these things, but it seems to me there are at least three structural problems here:
1) the adversarial nature of our legal system (prosecutors and defense seem to be obligated to take extreme positions)
2) electoral politics - the logic of the system must conform to public opinion—which can be pretty simplistic—rather than what really works, and
3) dispersed responsibility for system outcomes — if prosecutors were responsible for the criminal justice budget (and the overall government budget and services), they might think twice about tough charges and long sentences.

Unknown said...

Germany is an example of how you can design a system with prosecutors who are in civil service jobs and protected from public opinion. It seems to work OK for them.

Gadfly said...

Grits, possible material for a new post.

Dunno if you have seen it, but huge study of police body cams show ...

They do LITTLE to affect police behavior.

Anonymous said...

As a restorative justice practitioner I occasionally put out feelers for the one jurisdiction - undoubtedly a small one - that will completely embrace an RJ mindset and practices for all criminal charges for a set period of time. Let's see what happens. Couldn't possibly be worse than our current system.