First Steps

21st century prosecutor

The first step in a person’s salvation is knowledge of their sin. – Seneca the Younger

On December 21st, in an increasingly rare moment of functional government and bi-partisan sanity, President Trump signed into law the “First Step Act,” a criminal justice reform measure which eases some of the harsher federal drug sentencing laws. The Bureau of Prisons and the Congressional Budget Office estimated 53,000 prisoners could be released over the next 10 years pursuant to the Act.

While any progress towards ending mass incarceration should be applauded, this step is a small one indeed. The law only applies to federal prisoners – 9% of the more than 2 million people America currently locks away behind bars – and only a fraction of the 46% of that 9% who are in federal prison for drug offenses.

mass incarceration in the U.S.

Even if we released all federal prisoners tomorrow we would still be the undisputed heavyweight champion of world incarceration – by a lot.

global incarceration numbers

It took decades of failed and frankly racist policies to dig ourselves into the morass of mass incarceration, and it will take a lot more time and effort to dig ourselves out. Hopefully the First Step Act will be precisely that. As for steps two & three & beyond, more meaningful and systemic criminal justice reform will require a revolutionary change to the office of the elected American prosecutor.

My job as a prosecutor is to do justice. – Sonia Sotomayor

Fordham University law professor John Pfaff has done groundbreaking work on the causes of mass incarceration. In a nutshell, Pfaff argues the biggest driver of jail and prison admissions over the last four generations is the ever-increasing tendency of local, elected prosecutors to file more felony charges against more people more often. Reversing this trend will take more than the kind of small-scale sentencing reform represented by the First Step Act; it will require a wholesale revolution in who our elected prosecutors are, and what they do.

Who truly groundbreaking, reformist prosecutors will be remains to be seen; let us hope they look more Philadelphian than Pheonician. What they can and should do to end mass incarceration is less opaque. The Brennan Center for Justice recently released 21 Principles for Prosecutors, a series of “practical steps prosecutors can take to transform their offices and, collectively, their profession.” The report presents an elegantly simple framework for transforming academic critiques of mass incarceration into real-world reform. Some of its recommendations will be difficult for anyone to argue with, such as #6 – “Treat Kids Like Kids,” and cease prosecuting them for fighting, smoking pot, and disorderly conduct. Other proposals will be more controversial, such as #10 – Shrink Probation and Parole, and #19 – Work to End the Death Penalty. Still, like any good strategic plan, Brennan’s is both practical and aspirational, pushing us to go further than we are initially comfortable going. This is both necessary and wise, since meaningful reform cannot take place strictly within our comfort zone. One of the many reasons why mass incarceration has gotten so bad and lasted so long is elections for prosecutor occur almost as far down ballot as you can get, and even the most well-educated voters are often ignorant of what their prosecutor does, what they stand for, and even who they are. This is not likely to change in 2020, which promises to be one of the most cacophonous election years in our country’s history. Yet if we are serious about criminal justice reform and ending mass incarceration, we would be wise to thrust the Brennan Center’s “21 Principles” under the nose of every lawyer running for prosecutor across the country, and present them with a simple ultimatum – get on board, work on your concession speech.

– Joel Feinman

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