Redefining the Role of the Prosecutor: Conference Roundup

by Alex Clark, June 20, 2017

We need to be paying more attention to prosecutors.

This truism echoed throughout the day of the “Redefining the Role of the Prosecutor Within the Community” conference I attended at Harvard Law School last Friday. There were highlight presentations by John Pfaff and Measures for Justice, along with panelists from the ACLU Boston, Charles Hamilton Houston Institute, Color for Change, the Innocence Project, and many others.

Prosecutors, former judges, and legal experts unanimously agreed: the role of the prosecutor is often misunderstood and underestimated. In the opening panel, experts outlined how prosecutors determine the baseline of whether or not an individual is charged, the nature of the crime, the length of the sentence, whether a juvenile will be charged as an adult, and many other key factors affecting the outcome of trials and the lives of those involved. Hon. Nancy Gertner stated that she was a federal judge for decades, but her role was never nearly as important as that of the prosecutor.

Assistant District Attorney in the Juvenile Division of Suffolk County, Adam Foss, balked at how little prosecutors have changed since the inception of this country. Similarly essential fields in our society, such as medicine, not only champion progress, but also face public demand for advancement. Most people would feel unsafe with the health standards and practices of the 18th or 19th centuries. Where is the outcry about outdated practices of the modern prosecutor?

Former prosecutors in the second panel unveiled troubling realities of the legal system. They described how prosecutors are often in entry-level jobs with minimum pay, they are new lawyers just beginning to gain trial experience. Some of the least qualified candidates have the most important roles in our judicial system.

Former prosecutor and current ACLU Racial Justice Program Director, Rahsaan Hall, revealed how much freedom prosecutors are given, especially in the case of setting bail. Hall spoke of one of his first times in court without a supervising attorney. When asked by the judge to set bail, Hall realized there was no set number to prescribe, no strict guideline to abide by. Hall said that as a young, inexperienced prosecutor, he was determining someone’s future without understanding his or her financial reality. After asking his supervisor later, Hall was told, “if you asked ten different attorneys, you’d get ten different answers”. There was virtually no oversight for an incredible amount of power.

When considering what makes a good prosecutor, voters usually look at things like number of indictments, declination rates, and years sentenced per conviction. However, panelists made clear that citizens should seek prosecutors with community involvement and who focus not only on public safety, but also on community health.

John Pfaff, author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, also asked why the United States was the only country in the world to elect their prosecutors. During election cycles, antiquated metrics focused on punitiveness become more important for campaign branding and ultimately deter reform.

Panelists from the ACLU shared that, during the last 20 years, 70% of District Attorney races have gone uncontested. They are often races on odd election years where voter turnout is low, and for those voters who do turn up, 30% don’t make it far enough down the ballot to vote for a District Attorney. The current system is not working or representative of those who are most affected by the criminal justice system. 96% of elected prosecutors are white men.

The overarching takeaway from every speaker was for voters to use their voice. Prosecutors are still elected officials. We can use our voices for change. We need to. As Deputy Director of the ACLU Florida, Melba Pearson, stated on Friday, “the only way to make a change is to be part of this conversation”.

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