Over the last couple years, police misconduct has loomed large in the news media, on college campuses, and among a large swath of the American public. Comparatively little attention has been paid to the role that prosecutors and local courts play in the criminal justice system.
The results of that collective inattention are devastating.
The stakes were dramatized for me by a powerful conversation between Stephen Bright, President of the Southern Center for Human Rights; Adam Foss, a former Boston area prosecutor who now runs the Prosecutor Integrity Institute; and Sherrilyn Ifill, who runs the NAACP Legal Defense Fund. What follows is a significantly condensed selection of their remarks during a Monday panel at the Aspen Ideas Festival, which is co-hosted by the Aspen Institute and The Atlantic.
Stephen Bright: The criminal justice system is the part of society least affected by the Civil Rights Movement. 95 percent of all elected prosecutors in this country are white. That's amazing. And the system is dealing almost exclusively with people of color. I go around the South and a lot of things have changed. John Lewis is my Congressman... But go to the courthouse and nothing is any different than before. Often, the only person of color in the front of the courtroom is the person on trial, even in communities that have very substantial African American communities.
One problem that's hard to overcome is the money. The municipal court in Ferguson wasn't about making the community safe. It was a cash cow. Municipal courts are cash cows.
One of our clients, a man with an IQ of about 45, lives on food stamps, no cash income whatsoever. He's arrested for the high crime of burning leaves without a license.
He's fined $500. He doesn't have it. So he's put on probation and told you can pay it in installments, $45 a month to a private probation firm. By the time we came along he was roughly $600 in debt as a result of all this. It's very hard to get these little communities like Warwick, Georgia, population 459––last year the municipal court there brought in $1.2 million, all on arresting people on things like loitering, j-walking, traffic tickets, standing around, all of that. Because the whole purpose of the court is to make money. They're bringing a lot of people in the system at the lowest level that don't need to be in the system at all.
Adam Foss: If I'm in this jurisdiction, I'm a prosecutor, and the guy comes in for burning leaves, and somebody suggests to me that this $250 fine is going to require probation, and I know that money is going to a private probation company, I've taken an oath to do justice. The one person in the system that can stop this a prosecutor by saying, okay, do $250 of community service and call it a day.
Sherrilyn Ifill: There's a window open right now where people are looking very closely at our criminal justice system from soup to nuts. There are going to be some changes. How widespread they will be, how much they stick, how deep they go, is yet to be determined, but I feel an extraordinary sense of urgency for this moment, because people are paying attention. This is not a new issue. This is what our criminal justice system has been like. But people are now paying attention.
Adam Foss: Prosecutors come to the job the very first day wanting to be hugging defendants at the end of the day and hearing, "You changed my life, thank you, everything is good." And you walk in and are beaten down by this tradition. There's no accountability for it, no metrics for it, nobody said, what is a good prosecutor? What does that mean? So what we're left with is how many trials have you had? How many have you won? And how many days or years of incarceration have you gotten? Not because any of those are indicative of public safety, or getting accountability from a defendant, or making a victim happy. It's just what we're left with. If we can train prosecutors from the very beginning of their career...
Stephen Bright: We've taken power from judges and given it to prosecutors, who now decide, with their charging decisions and whether they file repeat-offender papers and all sorts of other things, how long a person is going to serve. So they decide the sentence. The judge is relegated to being a clerk at the end of the process. He signs off on whatever the sentence is. That's got to be shifted back in the other direction, because the prosecutor is an advocate. We theoretically have an adversary system. The worst system is one that masquerades as an adversary system and is not one.
And in many places, people do not receive any real kind of legal representation. If we are going to say this is an adversarial system where we have prosecutors striking hard blows and trying to lock people up or do whatever, you have to have defense lawyers representing those people. First of all, are we even locking up the right people, because we keep letting out people who didn't do what they were convicted of.
And what about the life and background of that person? When it comes to diversion programs, the prosecutor doesn't go interview the defendant, the defense lawyer does that, and then does a social history workup of who is this person? This woman, yes, she wrote a fake prescription to get drugs. But she's got a kid with down syndrome. And that's one of three children that she's trying to raise at 25 years of age. So do we really want to put her in the prison system in Georgia for three years?
Or is there another way to deal with this?
And if she's not represented, the prosecutor and the judge will never know about that child. I've twice been called by the department of criminal justice saying we've got people here with IQs of 45, these kids are walking victims, and they're about to be moved into the adult system, and if somebody doesn't do something...
In both of those cases, lawyers plead them guilty and didn't even spend enough time with them to realize they were severely disabled. There are public defenders’ offices that are hopelessly overburdened. And we have places like Alabama where you appoint anybody with a bar card and a pulse and they represent you. The way to make money at that is to move as many people through the system as fast as you can.
Sherilynn Ifill: The conditions of confinement have to be dealt with as a human rights issue in this country. We are cycling people back out into the community who are deeply damaged by the time that they spent in prison. And we release them out into the world with this scarlet letter, which means that you can't get a job, you can't live in public housing, and we somehow expect them to live productive lives.
Adam Foss: Understand what your prosecutor does in your jurisdiction. Understand that you have absolute power over that prosecutor. You vote. They are elected officials. There are very few positions in the continuum of the criminal justice system where that is true. Go find out who your prosecutor is and ask them questions. What's your policy on mandatory minimum sentences? What's your policy on personal recognizance? Should people be released on bail unless there is some risk to the community? ...Voter turnout in some of these races is only 2 percent.
Sherilynn Ifill: If you look at their campaign material and it says I'm responsible for getting this many years of prison time, this many people on death row, if that's how they're advertising, that's a sign. Ask questions. Why are these offices unopposed? Why do so many people pick judges and DAs without knowing anything about the people. The fact that we talk so much about the presidential election, but not at all about people who control the lives of so many... we need attention there.