Changing the System From Within: How Electing a New District Attorney Can Improve the Foster Care System

I. Introduction: Since most District Attorneys are elected, we must elect District Attorneys who embrace criminal justice reform.

Criminal justice reformers have a new strategy: electing new District Attorneys in order to change the system from within. District Attorneys (“DA’s”) are commonly referred to as prosecutors, and prosecutors represent “the People” of the state in which they work. This means that in everything prosecutors do, with the power they wield, they must keep in mind what is best for the victims, defendants, and people of their state. While the decisions of an individual deputy district attorney, in deciding what is best for “the People,” can influence the foster care system on a micro-level, the election of a Chief District Attorney can influence the foster care system on a macro-level. This is why criminal justice reform advocates have recently begun to utilize a new strategy to advance their cause: voting out the old DA in favor of a new DA who embraces commonsense criminal justice reform.

When a child is placed in the foster care system, that child’s life and the life of that child’s parents are changed forever. The same thing goes for when a child, or a child’s parents, gets incarcerated. These traumatic events have immeasurable lifelong consequences. At every waystation in the criminal justice system, the lives of all those who are touched by the system become irreparably impacted. Given that prosecutors have outsized influence and power in the criminal justice process, it is evident that examining the role of prosecutors is critical to understanding how the foster care system can be improved. While admittedly a crass and inexact analogy, if one were interested in reforming the beef industry, an examination of the roles of cattle farmers would be important to analyze. Concomitantly, an analysis of those who wield power in the criminal justice system, and who serve as de facto feeders into that system, is important to understanding how reform of the system can be most effectively undertaken.

Children with incarcerated parents and children in foster care often overlap. In fact, 40% of children in foster care have been exposed to parental incarceration at some point in their lives. Children with parents who become entangled in the criminal justice system are far more likely to enter the foster care system. In fact, each year, 14,000 children whose parents are incarcerated are placed in the foster care system. The criminal justice system exacts an often-heavy toll on the accused, however, that toll does not just fall on the accused him- or herself. The children of the accused suffer collateral consequences as a result of a parent’s experience with the criminal justice system. Since, in the criminal justice system, prosecutors have arguably the most power and influence, analyzing prosecutors’ roles in the system is thus imperative to understanding how to improve the foster care system. One solution is electing more District Attorneys who embrace systemic reform.

Over the course of my posts, I will discuss the influence the Chief District Attorney has on his or her deputy district attorneys and how that is relevant to the foster care and juvenile justice systems as a whole.

II. How is the District Attorney relevant to the foster care & juvenile justice systems?

While prosecutors are not overseers or directors of the foster care system, they are one of the largest, if not the largest, cause(s) of children who get fed into the foster care system. Many children ultimately enter the foster care system because of their parents’ encounters with the criminal justice system. Any involvement of children’s parents with the justice system, ranging from arrest, to awaiting trial, to incarceration may have consequences on their children. Children ultimately become victims of this justice system.

Prosecutors possess the power to make many of the decisions that ultimately affect the parents of children who may end up in the foster care system. At various stages of the criminal justice process, they can effectively decide the future of families and the fate of the children. For example, prosecutors can decide to press charges on a parent or decide to dismiss them. While the parent is awaiting trial, the prosecutor can decide to set a high bail. If the bail is set too high, then the parent may have no other choice but to wait in jail just to face trial, for a crime in which they have not been convicted.

When prosecutors charge the parent, they can decide whether to charge the parent with a crime that requires serving time in jail, or to charge them with a crime which would allow them to be released back into the community, such as through a diversion program. During plea bargaining, prosecutors can be aggressive with their plea deals and offer options with a high amount of jail time, or they can offer a lower amount of time and offer options such community service. Until the sentencing phase of a trial, prosecutors have the ability to affect the fate of families because they can recommend a harsh sentence or a lighter sentence.

A parent, by the very act of being incarcerated, may be considered unavailable or absent and that finding would be grounds to take their child into foster care. After a certain period of time, this unavailability can be part of the decision to take away their parental rights altogether. In fact, mothers and fathers who have had a child placed into foster care because they were incarcerated, are more likely to have their parental rights terminated than those who physically and sexually assault their children. This shows clearly that prosecutors can influence whether children enter into the foster care system, and whether children will remain permanently in the foster care system.

Additionally, the person who sets the priorities the individual prosecutors follow is the elected District Attorney. They are the most influential individuals in the decision-making process described above. Some of the decision making is made by prosecutors on the individual level, but line prosecutors are usually following general office policies and priorities.

If your county’s DA is “tough on crime,” not big on second chances, and not supportive of diversion programs, then that does not bode well for the county’s parents and children. He or she will advocate that the prosecutors in their office as a whole seek longer sentences, more charges, and to try as many cases as they can. Importantly, this tough on crime approach is largely out of step with the American public, yet prosecutors keep getting re-elected; organizations like the ACLU have recently launched initiatives to educate individuals about the power prosecutors possess.

In contrast, if your county’s DA is an advocate for criminal justice reform, second chances, rehabilitation, and diversion programs, that will likely result in fairer outcomes for parents and children in the communities that are most likely to have involvement with the foster care and juvenile justice systems. One of the biggest dilemmas of the criminal justice system, and one of the biggest critiques of prosecutors, is the aggressive prosecution of low-level drug crimes, which in turn takes away resources from prosecuting violent crimes. Prosecutors who refuse to advance cases against first-time, low-level drug users, for example, will necessarily change the behavior of the police departments operating under their jurisdiction. Fewer low-level drug cases not only would help mitigate jail and prison overcrowding, but could keep otherwise healthy and functional families together, which would then keep children out of the system. For example, some progressive county District Attorneys have stopped prosecuting low-level marijuana offenses or have stopped asking for bail in most misdemeanor cases. In Philadelphia, the progressive District Attorney, Larry Krasner, has instructed his prosecutors to make plea deals for most crimes below the bottom end of Pennsylvania’s sentencing guidelines. These decisions amount to, for example, fewer parents spending time in jail just because they cannot afford bail, or serving time for marijuana related offenses. Fewer of these cases ultimately means fewer children in the foster care system. While this is not necessarily an antidote to the ills plaguing the system itself, oftentimes prevention is the most effective medicine.

III. How can electing a new District Attorney assist in reforming the juvenile justice system?

Historically, our country, and those elected District Attorneys, have focused more on being “tough on crime” rather than being “smart on crime.” This, however, is a trend that has been in decline. More often, we now see people want a DA who’s “tough but fair” and “smart on crime,” someone who is willing to acknowledge the past wrongdoings and biases of previous members of the profession, and someone that will ensure that the office they run seeks to accurately represent the communities they are sworn to serve, represent, and protect.

As mentioned above, the new strategy employed by criminal justice reform advocates is to vote out the DA, which in turn has led to prosecutor elections becoming the new frontline in the “Justice Wars.”  This new strategy has come about as people have started to examine their local criminal justice systems and learn about the power prosecutors wield. This is why criminal justice reform advocates are now seeking elections to change the system from within. This tactic, of electing a prosecutor who has different more compassionate goals and priorities, can dramatically impact the foster care system.

The United States is the only nation in the world that elects prosecutors, which has unfortunately resulted, oftentimes, in party politics influencing criminal prosecutions. An entire book would be needed to fully explain all the negative repercussions of that fact. Our criminal justice system is supposed to be fair, unbiased, and based on the facts of each individual case. There should never be any political influence on who should be charged, how a case should be charged, how sentencing recommendations are decided, and there should not be any discrepancies on any of these aspects based on a defendant’s immutable characteristics.

This is difficult to overcome when most prosecutors “largely run unopposed in counties with strong political-party identification, places where politics are so ingrained that decisions are made well ahead of the voting booth.”  Things such as “party loyalty, tough-on-crime promises, or just electoral indifference—can result in prosecutors who amass and wield enormous amounts of power in the courtroom and beyond.” The overwhelming majority of District Attorneys are elected, and most of them run unopposed. If we want to change the system, we must start educating the public about the importance of District Attorneys and electing District Attorneys who represent our values.

There are several examples where the old DA was voted out in favor of a candidate that ran on a criminal justice reform platform. To name a few, there was the election of Andrew Warren in 2016 to become the State Attorney in Tampa, Fla., then there was the election of Larry Krasner in 2017 to be the District Attorney of Philadelphia, and finally the election of Wesley Bell in 2018 to become the first African-American District Attorney for St. Louis County. While these three gentlemen’s success in getting elected is remarkable, the battle for criminal justice reform in terms of electing more progressive prosecutors will be nearly a Sisyphean task. Although it will take some time to measure their impact on the criminal justice system, we should also measure their success based on these secondary effects on children. We can be hopeful that their elections will create changes to a culture that otherwise focused on being tough on crime.

In subsequent posts, I will delve into how electing a progressive district attorney more representative of the people they represent can lead to a fairer decision-making process in the criminal justice system, and by extension the foster care and juvenile justice systems. I will also provide specific examples and stories about how district attorneys have influenced the lives of children in the foster care system on a micro and macro level. Finally, I will examine how the role of individual bias, and bias in a District Attorney’s office as a whole can affect the foster care system.