What Christians Who Care About Mass Incarceration Need to Know About District Attorneys

AMERICA HAS A CRISIS of mass incarceration, and it has little to do with crime rates. The system is broken: America imprisons more of its citizens than any other nation in the world. Even though the United States contains just 5 percent of the world’s population, the nation has nearly 25 percent of the world’s prisoners. At every point, from the laws on sentencing to policing practices and health conditions in prisons, impersonal forces exact a very personal toll on incarcerated persons and their families.

Many citizens have started to work on solutions by raising awareness, legalizing drugs such as marijuana, and passing laws that require police officers to wear body cameras. But one critical function of our legal system has received too little attention from Christians and the rest of the public: local prosecutors.

Local prosecutors, or district attorneys, as they are formally known, hold enormous influence. These 2,400 individuals nationwide have the authority to determine when, how, and how severely to charge a person with a crime. They help determine when someone goes home and when someone goes to prison for decades. Their decisions could mean the difference between an innocent person going free or going on death row.

I first became aware of the issues related to local prosecutors while attending a lecture at the University of Mississippi in fall 2017. I was there to hear James Forman Jr. talk about his Pulitzer Prize-winning book, Locking Up Our Own: Crime and Punishment in Black America, which describes how black Americans, for complex reasons, supported the “tough on crime” policies that led to mass incarceration. During the Q&A that followed Forman’s lecture, one student asked Forman how nonlawyers could join in the effort to reform the criminal justice system. A part of Forman’s response remained with me.

“Get involved in local races,” he said. “Local prosecutors are the most powerful people in the system, but nobody votes in these races.”

Forman is right: District attorneys and their staff sustain relatively little public attention in the current conversation about criminal justice, despite their outsized impact. Citizens are not powerless—and Christians, especially, should be interested in creating a system that fairly punishes offenders and protects the innocent. Local prosecutors are critical components of that process.

What do district attorneys do?

The district attorney (DA) serves as the primary person responsible for prosecuting people accused of a crime. If someone gets arrested, it is the district attorney who holds that person accountable for their alleged crimes and sees that he or she faces consequences under the law.

They have discretion about whether to pursue a criminal case, what charges the defendant will face, the severity of the proposed penalties, whether to offer a plea deal, and what methods and evidence will be used to try the case. They have the authority to issue subpoenas, initiate investigations, and grant immunity to witnesses. “State’s attorney” and “prosecuting attorney” are alternative titles for this powerful position. The highest prosecutor of a state is the state attorney general, and the highest prosecutor in the nation is the U.S. attorney general.

In most cases, the district attorney is an elected official who typically serves a term of four years. Their territory usually covers a single county, but in more sparsely populated areas the DA may oversee several counties at once. District attorneys don’t prosecute all cases of a jurisdiction, but rather work with a team of prosecutors called assistant or deputy district attorneys. These teams handle most of the cases, with the district attorney getting involved with the most important or high-profile trials.

District attorneys have broad latitude to determine the penalties and charges they pursue in a case, and problems enter when “tough on crime” and “law and order” rhetoric—too often racially coded language for harsher policing of black, brown, and poor people—inclines prosecutors to pursue high conviction rates and maximum penalties. It has become common for prosecutors to pursue convictions by any means necessary.

Prosecutors possess enormous power over the freedom or incarceration of alleged criminals, but they have very little accountability. Voters in local elections have the power to regulate the behavior of prosecutors in exercising their preferences, but turnout for these elections is typically very low.

For example, in Philadelphia’s most recent district attorney race in 2017, an unprecedented number of voters turned out: 20 percent. Newspapers touted this percentage—the highest since 1997—because, in typical races, just 12 to 13 percent of eligible voters head to the polls. Such low turnouts are significant because the stakes are so high.

Demographics also factor into the crisis of justice at the district attorney level. On a national level, DAs are a remarkably homogenous group. A 2015 report by the Reflective Democracy Campaign found that 95 percent of the country’s elected prosecutors are white, and 83 percent are men. Only 1 percent are women of color.

These numbers matter because studies have repeatedly shown that implicit bias plays a role in mass incarceration. While specific data about the implicit biases of prosecutors as an isolated group is scant, a study by scholars at UCLA explains that “the conditions under which implicit biases translate most readily into discriminatory behavior are when people have wide discretion in making quick decisions with little accountability. Prosecutors function in just such environments.” An almost all-white and all-male prosecution force likely translates to disproportionately harsh penalties for defendants of color and women.

On top of their enormous power, lack of accountability, and homogenous demography, district attorneys typically have far more resources and discretion than do public defenders. And some district attorneys remain in office for decades. The Real Justice PAC, an organization founded to help elect reform-minded prosecutors, found that 84 percent of all incumbent district attorneys ran unopposed in 2016.

Prosecutors also maintain close ties with the police force, police unions, and prison guard unions. These organizations have potent political lobbies and deep pockets to help fund, endorse, and elect their preferred candidates. These parties are invested in maintaining the punitive status quo because incarceration rates and conviction rates often have a direct impact on winning grants and funding for prisons and police departments.

Signs of change

All the problems associated with the practices of local prosecutors may seem overwhelming, but there are signs of change. Reform-minded prosecutors across the country aim to disrupt the status quo.

In San Diego County, Calif., the fifth most-populous county in the United States, Geneviéve Jones-Wright is committed to reform the office of district attorney. Jones-Wright, a native of San Diego, has practiced law as a deputy public defender since 2006 and is someone who knows firsthand the challenges of seeking justice for clients accused of a crime.

Some of her ideas for change include prioritizing rape kit testing, training law enforcement to counteract their own implicit biases, ending the use of private prisons, and devising a consistent standard for when to release body camera footage.

“Until justice is the focus of the conversation, the DA will always be on the wrong side,” said Jones-Wright. “We need to change from a conviction rate to a justice rate.”

The notable turnout for the city of Philadelphia’s 2017 district attorney election centered on the possibility of change that the eventual winner, Larry Krasner, promised. In his brief time as district attorney, analysts have said that Krasner is coming through on his “radical” reform agenda.

In an article for The Intercept, activist Shaun King wrote, “So far, having been in office less than three months, [Krasner] has exceeded expectations. He’s doing something I’ve never quite seen before in present-day politics: Larry Krasner’s keeping his word—and it’s a sight to behold.” King goes on to cite several actions Krasner immediately took upon securing the top local prosecutor spot. He fired 31 lawyers who were not committed to his vision for change. He also followed a court order to release the names of 29 officers whose records were so dubious they were placed on a secret “do not call” list as unreliable witnesses.

In an internal memo to his attorneys that recently became public, Krasner instructed them to make sweeping changes in their typical practices. In one striking example, he ordered prosecutors to “make plea offers below the bottom end” of the sentencing guidelines recommended by the state of Pennsylvania. In plea deals, he advised prosecutors to seek alternatives to incarceration such as “more house arrest, probationary, and alternative sentences.”

At the beginning of the memo, Krasner explicitly states the reasons for his suggestions. “These policies are an effort to end mass incarceration and bring balance back to sentencing.”

Some criminal justice reform efforts have gained bipartisan support. Joel Bomgar, a Republican state representative in Mississippi, has garnered attention for working across the aisle to improve the criminal justice system and end mass incarceration in his state. Regarding the role of local prosecutors in criminal justice reform, Bomgar encouraged voter participation. “While many of our political decisions are made for us in Washington, many of the criminal justice decisions are made at the state and local level. Concerned Christians should engage in these local decisions,” he said.

Another perhaps unexpected mark of progress in the fight for criminal justice reform is a museum. The Legacy Museum: From Enslavement to Mass Incarceration opened in Montgomery, Ala., in April (see “Why I Brought My Children to the Montgomery Legacy Museum”). In contrast to other museums with exhibits that tell the story of slavery in America, the Legacy Museum traces a direct line from past years of slavery to the mass incarceration of the present.

I visited the museum on opening day, and the curators from the Equal Justice Initiative have done a masterful job at immersing visitors into the tragedy of a broken criminal justice system. You can view scenes of police raising their batons over black protesters curled up in the fetal position. You can read heartrending letters from inmates asking lawyers for help in their cases. You can sit in front of a digital projection of a prisoner as you speak to him or her through glass during visiting hours. The presence of such a museum, as sobering as it is to visit, stands as a sign that we as a nation are starting to face the effects of racism on policing and incarceration.

What everyday citizens can do

All citizens have the ability to make a positive difference in the way local prosecutors exercise their responsibilities. Several simple practices can help hold prosecutors accountable and alleviate the epidemic of over-incarceration.

The first step is simply to get informed.

Many citizens cannot name their district attorney, much less describe their policy stances or record on conviction and incarceration. The anonymity of DAs contributes to their ability to operate with little oversight or accountability. Prosecutors must know that their constituents are observing their actions and holding them to a high standard of justice.

One day, while driving through my town, I noticed a yard sign promoting a candidate for district attorney. As soon as I got home, I looked up the person’s website and read about his platform. Then I learned the name of the person running against him, looked him up online as well, and ended up talking to each candidate individually over the phone to get a sense of their views on justice and the current state of incarceration. In the nearly two decades that I have been eligible to vote, this was the first time I ever investigated the identity and platform of my district attorney.

A prosecutor bent on increasing his or her own incarceration rates, or who has a proclivity toward punitive sentencing, can do as much or more harm as some accused criminals. To prevent this, citizens must vote in elections for district attorney, rather than forego their right to decide who will be in charge of prosecuting defendants.

James Forman Jr. also recommends immediate action for people who are already in prison. In an interview on The Daily Show, Forman said, “While we have people incarcerated, let’s provide them high-quality education. Because the research shows that for every dollar you invest in the education of somebody behind bars, we as a society get $5 in return, because crime goes down, recidivism goes down, people are more likely to be employed.”

More organizations devoted to criminal justice reform have started to organize. The Real Justice PAC is dedicated specifically to helping fund campaigns and mobilize voters to elect progressive prosecutors at the district attorney level. Its website states: “The Real Justice PAC works to elect reform-minded prosecutors at the county and municipal level who are committed to using the powers of their office to fight structural racism and defend our communities from abuse by state power.” To elect the prosecutors they endorse, Real Justice PAC raises money and forms and equips teams of volunteers to help with a “big organizing” approach that leverages social media and grassroots campaigns.

Together, individuals and organizations can offer the possibility of substantial transformation in the way district attorneys execute their jobs and whether they support fair practices in the criminal justice system.

Christians and criminal justice reform

Ensuring fairness and equality in the criminal justice system constitutes part of the Christian call to love one’s neighbor and to seek justice on behalf of the poor and oppressed. God hates unjust scales, bribes, and a corrupt legal system.

Many reformers see the critical role that the church can play in improving outcomes for those accused of a crime, at every step of the process. Even after release, many formerly incarcerated persons find it difficult to readjust to life outside of prison. They struggle to find employment, secure a driver’s license, and find housing. Forman suggests that churches assist as many released inmates as possible with these relatively mundane efforts. Even helping a single person can make a dramatic difference.

Jones-Wright sees her efforts to bring justice to the office of the district attorney as integral to her faith. “I really do feel we [Christians] have a responsibility to right wrongs. We have to do everything in our power to make sure there is equity. I believe those are Christian principles.”

Given the massive number of prison inmates and the incalculable impact of their incarceration on themselves, their families, and their communities, criminal justice reform—and the role of local prosecutors, in particular—presents an urgent problem for all citizens to address. Christians could lead the way in promoting positive changes in sentencing and imprisonment rates. It all starts at the local level when Christians exercise their role as citizens by knowing and holding accountable the prosecutors who enforce the law.