Progressive District Attorneys Can Affect the Foster Care System by Changing the Tough on Crime Culture

I. Introduction: Since the tough on crime culture played a large role in mass incarceration, we must elect Progressive District Attorneys that prioritize diversion and rehabilitation before incarceration whenever it is possible.

As mentioned in my previous blog post, District Attorneys’ offices have a wide degree of discretion throughout the stages of the criminal justice process. The decisions prosecutors make can impact whether a parent gets incarcerated, and ultimately whether a parent loses their parental rights in that process. The Vera Institute compiled an overview of seven critical decision points for prosecutors throughout the criminal justice process and how these decisions can affect an individual’s fate. Notably, the overview highlights how, even at the charging stage, if the prosecutor selects a charge that carries a mandatory minimum sentence, he has essentially already chosen the potential sentence at the time of charging, rather than the judge or jury doing so at the time of sentencing. If the prosecutor had chosen a lesser charge, this decision could increase the likelihood that a person is, for example, eligible for diversion programs or released pre-trial. Diversion programs, or pre-trial release, could likely help contribute to maintaining an otherwise healthy family unit and keep additional children from being placed in the foster care system.

By prioritizing programs that avoid incarceration and promoting, for example, rehabilitation, prosecutors can dramatically decrease the number of children who end up in foster care. District Attorneys’ offices, and the individual decisions prosecutors make, are highly influenced by their culture. A Chief District Attorney can change the entire culture of an office by, for example, promoting decisions and programs which would actually assist parents in overcoming their involvement in the justice system and allowing them to continue to be involved in their child’s life. Electing a more progressive District Attorney, who prioritizes programs that avoid incarceration, would benefit parents as a whole. Historically, District Attorneys’ offices have followed a tough on crime approach which rewarded a high rate of convictions, at all costs. This culture, in effect, has resulted in the high rates of incarceration we see in our nation today.

II. The tough on crime culture in District Attorneys’ offices encourages decisions that separate families.

These decisions that separate families are influenced by the culture of District Attorneys’ offices. The culture of a District Attorney’s office sets the tone for the entire office, and how individual prosecutors approach their cases. Historically, a culture of “tough on crime” has only continued to encourage prosecutors to pursue harsher sentences and get convictions. Often, line prosecutors’ promotions or awards are based on getting a high rate of convictions. This culture, to “win” at all costs, can lead prosecutors to engage even in unethical conduct to get the convictions they seek.

For example, in a homicide case in Maricopa County, AZ, a prosecutor named Noel Levy violated his ethical duties as a prosecutor in order to secure a conviction. He failed to disclose to defense counsel that the lead detective on the case, who testified that the defendant confessed to him of the first-degree murder of a four-year-old boy, had a history of lying under oath and other misconduct. The prosecutor was legally required to disclose this information to defense counsel. The defendant was wrongfully convicted and spent twenty-four years in prison, including twenty-two years on death row, for this crime, until Noel Levy’s misconduct was finally exposed.

This same prosecutor, in another homicide case, used manipulated bite marks to match the defendant’s teeth. This defendant spent ten years in prison and was finally released after DNA evidence indicated another man was responsible for the crime. Yet, despite this misconduct, Mr. Levy was never disciplined by the State Bar, and, in fact, throughout the years, he received awards for his achievements as a prosecutor. Although these are extreme examples, these examples show the lengths some prosecutors will go to win their cases. This is why we should recognize the problems with the tough on crime culture and how this culture has helped produce suboptimal outcomes for parents, their children, and the foster care system.

While Noel Levy is an extreme example of the effects of the tough on crime culture, it is important to note that culture affects the office overall. This culture can, for example, lead offices to pursue policies aimed to compel people to plead guilty. This culture can also foster an environment where prosecutors are free to negotiate plea deals before a grand jury indictment, before the defendant has the chance to even see the evidence against him, or encourages defendants to waive their rights to a speedy trial, at the threat of losing the opportunity to receive a more favorable plea deal. Unfortunately, these examples are not hypothetical, and were all occurring at the Queens District Attorney’s office.

These examples should serve as further proof that the tough on crime approach continues to hurt the people who wind up in the criminal justice system. All these decisions emphasize winning or getting someone to plea, which usually results in jail time, and in this context, results in parents being separated from their children.

III. The Chief District Attorney’s election matters because she or he sets the tone of the office’s culture and the pursuit of justice as a whole in the community.

The Chief District Attorney sets the culture for the entire office. His or her decisions will ultimately affect the decisions of the individual line prosecutors and what they prioritize. Under a tough on crime approach, this power can be troubling. For example, the Queens District Attorney, Richard A. Brown, was elected in the 1990’s, and, like other District Attorneys in that era, adopted a tough on crime approach. His office has been criticized for its policies, mentioned above, and also for prosecuting minor marijuana offenses. Now that Mr. Brown is not running for re-election, more progressive prosecutors are running to replace him.

Before we move onto the discussion of the changes that progressive prosecutors can make, it is important to know why tough on crime District Attorneys keep getting elected. For years, District Attorneys kept their positions, in part, because those elections rewarded those who ran on tough on crime platforms. In fact, a District Attorney named Michael Nifong admitted that his upcoming primary motivated his misconduct in the prosecution of Duke University lacrosse players in 2005 on false rape charges.

Importantly, those who tend to vote for District Attorneys tend to be white and more suburban, while those who are prosecuted are disproportionally poor, minority, and urban. So, when District Attorneys decide to charge individuals for a crime, they will err on the side of safety and charge an individual because that is what their voters want, even though the individuals bearing the consequences are an entirely different group.

This problem has been exacerbated by non-competitive elections. For many years, District Attorneys, and their power, remained unchallenged. According to a 2014 study, incumbent District Attorneys ran unopposed in 80% of their races for re-election, and when they were opposed, they won 70% of the time. Effectively, any wrongdoing that occurred in their offices, or cultural practices that hurt the community, would go unchallenged for countless years.

This trend is changing as people are becoming more educated about the importance of voting for their local District Attorney. People have begun to recognize that electing District Attorneys who reflect their values could improve their community as a whole. Now progressive prosecutors are receiving support from voters and PAC’s to run on platforms that emphasize more progressive policies, and they don’t have to run on a tough on crime approach. These newly elected District Attorneys are showing the types of positive change progressive prosecutors can make after unshackling themselves, and their communities, from the failed tough on crime culture.

A Chief District Attorney’s power can, indeed, be harnessed for good. Take, for example, District Attorney Larry Krasner, whom I mentioned in my previous post, who has advocated for and implemented various progressive reforms to improve his office’s practices. One policy requires his line prosecutors to disclose and explain the costs of the punishment they are seeking. Not only do his prosecutors have to justify the financial cost of keeping someone in jail, which is approximately $42,000 a year, but they also have to address the decision to interrupt this person’s connection to family, employment, and access to public benefits. Just by requiring this approach in sentencing, his office has embedded incentives for its line prosecutors to “push for shorter sentences or even to find alternatives to time behind bars.”

Another great example of a District Attorney’s power being harnessed for good comes from District Attorney Rachel Rollins, from Suffolk County in Boston, MA. Just last month, she issued “The Rachel Rollins Policy Memo,” which is a 66-page memo intended to dramatically change the way her office approaches criminal prosecution. The memo is based on a data-driven approach which found that decades of punitive incarceration measures have not been effectively preventing recidivism and promoting public safety. Part of the goal behind this memo is to help “move all but the most serious offenses away from carceral punishment and its downstream collateral harms.” Another goal is to work “with community partners to develop and implement innovative, evidence-driven diversionary alternatives that data show are more likely to promote safer and healthier communities.” This memo is just the beginning, but it is a step in the right direction, and hopefully it can serve as a model for other District Attorney offices throughout the nation.

The impacts new policies implemented by progressive prosecutors can have on the foster care system are immense. By moving away from the tough on crime culture, and towards a culture oriented towards justice for all community members, prosecutors can transform the functioning and efficacy of the foster care system.

IV. Progressive District Attorneys can prioritize programs that avoid incarceration, which will help decrease the flow of children entering the foster care system.

Fostering a culture of promoting justice, not conviction rates, would help parents potentially avoid criminal charges, and improve the criminal justice system as a whole. In fact, the Brennan Center for Justice has highlighted the importance of changing office culture and practice as a means to increase fairness in the criminal justice system. The policies and dynamics prosecutors’ offices put in place can have a huge impact on the pursuit of justice in their community.

Changing a culture is not simple. Among other things, changing an office’s culture involves electing a more progressive District Attorney, educating line prosecutors about why the office should pursue more progressive policies, and implementing guidelines for prosecutors to follow. These guidelines, such as not prosecuting marijuana possession, of prioritizing placing defendants in diversion programs instead of jail, or not seeking excessive bail, will ultimately serve to improve the lives of parents and their children. Many parents may lose their kids because of drug addiction or because they cannot afford bail.

Providing parents with a solution to their problems, including through diversion and rehabilitation programs, would allow parents to remain a part of their children’s lives and decrease their children’s chances of ending up in the foster care system. Fewer children experiencing the harmful effects of the system means a greater likelihood of stability in the family, and thus, a decreased likelihood of entering the criminal justice system. Overall, this contributes to improved public safety.

Returning to the example of District Attorney Larry Krasner’s office, requiring line prosecutors to include family separation costs when recommending sentences would push the interests of the children into this critical decision point. Moreover, District Attorneys’ offices can take this policy even further and explicitly require line prosecutors to justify the costs in terms of analyzing the effects of the person’s children entering the foster care system. District Attorney Krasner’s office is seeing results from other policies as well. For example, his office no longer seeks money bail for a list of offenses that make up 61% of all cases in the Philadelphia criminal justice system. Contrary to critics’ beliefs, the office did not see an increase in recidivism. Krasner believes his cash bail policy will keep Philadelphia safer in the long term, because “when you keep [people] in contact with the things that keep them on course, they will be less likely to commit crimes in the future.” This policy, to not seek bail on certain crimes, helps keep families together and is better overall for the community. People can be released, without the burden of a bail debt, and continue to spend time with their families instead of being around the dangers of jail.

Progressive District Attorneys can make the difference in decreasing the number of children ending up in the foster care system, but change will take time. For example, Larry Krasner faced significant resistance from his line prosecutors to the point that he had to fire thirty of them without warning. Some of these line prosecutors had not been following his policies for months. Krasner’s policies even faced resistance from judges who did not like the policy, mentioned above, of prosecutors stating the cost of incarceration. Although changing a win at all costs culture takes time, people can hold District Attorneys accountable when they fail to implement policies that successfully change office culture by voting them out and replacing them. The District Attorney will obviously want to keep his or her job, so he or she will be motivated to continue pushing changes within the office. This would logically hold true for Progressive District Attorneys because they were elected to reform the criminal justice system and if they are not successful then they, too, can be voted out.

Part of incorporating reform will include incorporating incentives into the office culture to seek justice, and to train line prosecutors in the values the office will represent. For example, District Attorney Krasner showed his new class of Assistant District Attorneys statistics on mass incarceration, and hired an organization named Prosecutor Impact, headed by Adam Foss, who took the prosecutors to visit a prison and a homeless shelter, so the prosecutors could see the realities of homelessness, addiction, and mental illness. The Brennan Institute highlights that incorporating performance measures that reflect the office’s values could help change the office’s culture. For example, instead of evaluating performance based on convictions, District Attorneys’ offices could adopt metrics like reducing incarceration, pretrial detention, and recidivism. The offices will be able to measure the progress from year to year and incorporate these metrics into promotion decisions.

Over the course of my first two blog posts, I wrote about the culture and organization of District Attorney offices. In my final post, I will talk about statutes and legislation. Specifically, I will provide policy recommendations for statewide reform of District Attorneys’ offices that can help improve the criminal justice system, and, by extension, the juvenile justice and foster care systems.