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Trends in the Law: Criminal Justice Reform

This is another installment of our Trends in the Law series.

PROSECUTORS ON THE FRONT LINES OF REFORM

All over the country, a progressive movement has been taking root in a place where you would least expect it: the county prosecutor’s office. In areas as diverse as St. Louis County, Missouri, Harris County, Texas (which includes Houston), and Suffolk County, Massachusetts (which includes Boston), the Prosecutors (or District Attorneys) have been elected on promises of criminal justice reform. Specifically, these reform-minded Prosecutors have pledged to: end mass incarceration; eliminate cash bail; divert retail theft and drug offenders into rehabilitation and diversion programs; eradicate the death penalty; and reverse wrongful convictions.

The latter issue—reversal of wrongful convictions—has led many Prosecutors to create Conviction Integrity Units. These units investigate past convictions that may have been obtained through police and/or prosecutorial misconduct, such as failure to turn over exculpatory evidence, perjured testimony, witness tampering, or faulty lab testing/analysis. Police departments do not take kindly to this type of activity, and nowhere is that more evident than in Philadelphia. Philadelphia’s Prosecutor, Larry Krasner, was elected in 2017 and is widely regarded as the most progressive District Attorney in the country. He went into the office on a liberal platform of reform which included de-criminalizing some nonviolent offenses. One of his first acts as Philadelphia’s Prosecuting Attorney was to fire 30 of his predecessor’s attorneys and to establish a Conviction Integrity Unit.

These actions as well as Krasner’s decision to not prosecute certain low-level retail and drug offenses led to the Pennsylvania legislature passing what is known as Act 58 in July of this year. Act 58 gives the Pennsylvania Attorney General Josh Shapiro—who is also a Democrat but who is opposed to Krasner—concurrent jurisdiction to prosecute certain offenses involving firearms. In other words, the police can appeal directly to the Attorney General to prosecute certain offenses if the District Attorney declines to, usurping the traditional prosecutorial discretion and power of the office of the District Attorney. The battle lines are drawn.

UNFORESEEN COSTS

What led to the mess that the criminal justice system is in today? Most experts agree that the 1994 Crime Bill bears much of the blame. The law’s requirement that three-time offenders be sentenced to mandatory life sentences (the infamous “three strikes” policy), its 100,000 new police officers added to the streets, and its $10 billion in funding for new prisons created the current culture of mass incarceration, and decimated many communities. Both Conservative and Progressive Prosecuting Attorneys agree that reform of the system is needed, but for different reasons. Many conservatives point to the enormous and unsustainable cost of mass incarceration, while many progressives highlight the social costs that become multi-generational cycles of poverty due to broken homes and broken communities.

Atlanta’s District Attorney Paul Howard has been Fulton County’s DA for 22 years. He is not among the new progressive prosecutors in Texas, Pennsylvania, Missouri and elsewhere, and opposes some of the recent criminal justice reforms. However, he has recently announced the creation of a Conviction Integrity Unit in Fulton County, Georgia. Howard also announced the first conviction that the unit will review: that of Wayne Williams, convicted of murdering two children (but suspected of murdering more) of the 29 children and young men missing and murdered back in the 1970s and 1980s in Atlanta. The establishment of a CIU in Fulton County is hailed as a huge step for criminal justice reform in Georgia.

ARE WE SAFER?

The traditional tough-on-crime stance of District Attorneys is one that has been touted by the Trump Administration and the Department of Justice under William Barr. Typically at election times, hardline DAs have talked in terms of the number of violent offenders they have incarcerated as proof of their “tough-on-crime” credentials.

Increasingly, however, the costs of this approach have become apparent, and voters are looking for alternative ways to remain safe. Not prosecuting low-level drug cases (marijuana possession) or retail theft under a certain amount can save jurisdictions millions of dollars, putting that money toward apprehending violent criminals. Diverting drug offenders into rehabilitation programs rather than prison also saves money and reduces recidivism rates—ultimately saving money that can be used to apprehend and prosecute violent offenders such as rapist and murderers.

Now at election time, Prosecutors and District Attorneys talk in terms of whether the overall crime rate has been reduced while they were in office, which is a better metric of whether a community is safe.

CONTACT YOUR ATTORNEY

If you or someone you know has been injured, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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