This November, in cities and counties across the country, focusing on an often overlooked downballot race—the race for district attorney—would be game changing for criminal justice reform. In 2016, 935 prosecutors across the nation are up for election, nearly forty percent of all elected local prosecutors in the country.
We give the criminal justice system the greatest power government holds over us, the power to take away our freedom—even to end our lives. Prosecutors are the gatekeepers of that system, driving the war on drugs and mass incarceration on a day-to-day basis. Over the past several decades, prosecutors have wielded enormous and unchecked power, playing an often invisible role in driving America to lead the world in incarceration. Now, it is time for us, the people, to hold them accountable.
When police make an arrest, it is a prosecutor alone who decides whether to bring charges, which charges to file, and how severe a punishment to seek. Take, for example, a school-yard scuffle. Police show up and arrest a young man for taking another kid’s lunch money. One prosecutor might look at the case and see a robbery – a violent felony involving theft by force. Another might see a simple battery. A third could see a petty theft. To the boy who was arrested, there’s a world of difference. A robbery would be a serious felony and bring lifetime felony-status and maybe prison time. A theft or simple battery charge could be handled as a misdemeanor and could go away with some community service. Ultimately, the young man’s fate and future rests on the prosecutor’s decision, often made quickly based on a scan of a police report amidst the crush of that morning’s paperwork. And too often, that boy’s race plays a major role in how he ends up getting charged.
Most prosecutors have adopted a mindset of charging high, racking up convictions, and pushing for the lengthiest possible sentences. I know this because I served as a prosecutor for 12 years. I saw how my colleagues and I had enormous power to change someone’s life with the stroke of a pen. I also saw how, in the aggregate, all of these pen strokes add up to very harmful trends in the criminal justice system.
Separation of powers is a fundamental principle of our democracy, but prosecutors have few checks on their power and little to no oversight. They are protected from lawsuits by legal immunity, even when their actions lead to a wrongful conviction. Even in cases of clear misconduct, they are rarely sanctioned by courts or disciplined by state bar associations.
Instead, the power to hold prosecutors accountable rests with us, the people: chief prosecutors are elected positions in all but four states. Yet, we rarely use our electoral power. Prosecutors run unopposed 85 percent of the time, and incumbents win 95 percent of the time. One result of this is that prosecutors often don’t look like the communities over which they wield so much power: in California, where people of color make up a majority of the population and 40 percent of people are Latino, seven out of ten prosecutors are white. Nationally, 95 percent of the more than 2,400 elected chief prosecutors are white; 79 percent are white men. In 60 percent of all states, there is not a single African American chief prosecutor.
This past March, though, two surprising elections indicated that things may be changing. In Chicago, Kim Foxx defeated sitting Cook County State’s Attorney Anita Alvarez, who came under fire for waiting 13 months to bring charges against the police officer who fatally shot 17-year old Laquan McDonald. In Cleveland, Michael O’Malley defeated the county’s incumbent prosecutor, who had also failed to respond to the police shooting of 12-year- old Tamir Rice. Both of these election upsets were spurred by activism from Black Lives Matter organizers, who focused public attention on the sitting prosecutors.
We can end mass incarceration and restore fairness, balance and legitimacy to our justice systems by changing who runs DAs offices. Across the country, we must make it clear to our chief prosecutors that we are paying attention and will treat them with the same level of scrutiny as any other public official. In counties with reform-minded chief prosecutors, we can support them and push them to do even more. We can insist on clear and transparent information from all prosecutors and demand that they produce concrete plans to reduce mass incarceration and racial disparities in charging and sentencing. If they fail to do so, we can and will hold them accountable — at the ballot box.
Tim Silard is President of the San Francisco-based Rosenberg Foundation and a former prosecutor.