Emily Bazelon On The Rise Of Progressive Prosecutors

By RJ Vogt | September 8, 2019, 8:02 PM EDT

When U.S. Attorney General William Barr told a conference of police officers last month that progressive, reform-minded prosecutors would cause "more crimes and more victims," Emily Bazelon was surprised.

Emily Bazelon, author of "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration," believes progressive prosecutors could be the key to reducing America's prison population.

As the author of "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration," she's actually documented the ways progressive prosecutors can help keep communities safe without relying on mass incarceration.

Bazelon said Barr's comments seemed out of sync with voters who've elected prosecutors like Wesley Bell in St. Louis County, Missouri; Larry Krasner in Philadelphia; and Rachael Rollins in Suffolk County, Massachusetts, in recent years, as well as President Donald Trump, who signed off on a landmark criminal justice reform bill in December.

"When you're looking at public opinion polls, there really is bipartisan support for reducing mass incarceration," she said.

Bazelon, the Truman Capote fellow at Yale Law School, co-host of Slate's podcast "Political Gabfest" and a staff writer at The New York Times Sunday Magazine, explores the inner workings of America's justice system in her book, released in April.

Following the cases of a young woman in Memphis accused of murder and a young man in Brooklyn charged with gun possession, she identifies the unchecked power of prosecutors as a driving force in mass incarceration.

She also identifies a solution: electing the same progressive prosecutors Barr labeled as "anti-law enforcement DAs." In a conversation with Law360 early this month, Bazelon said she hopes her book shows readers that they can have a voice in many local prosecutor elections "where not that many people vote."

How much power do prosecutors really have?

Starting in the 1980s, we had this ratcheting up of sentences and mandatory minimum sentences passed all over the country. What people didn't talk about at the time was that once the sentence is mandatory, the decision about punishment is really baked into the decision about what charges to bring.

The person who decides what charges to bring is the prosecutor. Coming out of the charges are the plea bargain offers that almost every defendant gets (more than 95% of convictions are obtained through plea bargaining). Again, prosecutors make plea bargain offers; judges almost always approve them.

And so, in passing mandatory sentences, we shifted a ton of power and discretion from judges to prosecutors. And prosecutors used a lot of their discretion to put more people in prison.

The two individuals you profile in your book face very different charges. Why did you select such different cases to demonstrate prosecutorial power?

I was interested in showing my readers two things. I wanted to show them what the very ordinary use of prosecutorial discretion looks like in a system where the DA is trying to be a progressive person — trying to punish people less instead of more while also keeping the safety of the public very much in mind.

And so the example in Brooklyn is a story about a young man, Kevin, who's facing charges for gun possession that he would go to prison for in New York. But he gets this second chance in the form of an alternative, basically a social work program. I followed Kevin through that program. So that's about an ordinary case and the potential for a second chance.

The Nora story is about an old-school DA who wants to inflict harsh punishments when possible. It's a story that raises questions about guilt and innocence and about prosecutorial abuse of power in the form of misconduct.

To me, the two cases exemplified these two different forms of the power of prosecutors.

Criminal justice reform is a particularly hot topic this election cycle. Are there any particular platforms you're excited about?

I have been pretty blown away by how progressive some of the Democratic candidates' platforms are.

Cory Booker, talking about reviewing the sentences for violent offenders ... not that he's going to let everybody out, but that he's willing to give everyone a second look, that's pretty amazing. Pete Buttigieg has some amazing parts of his platform including getting rid of mandatory sentences. And so do Elizabeth Warren and Joe Biden.

So I think you can see that there is a window of opportunity right now that politicians are willing to walk through — even two years ago, I don't think we would've seen platforms like this from national candidates.

The president and the national government cannot create all the change itself. The Federal Bureau of Prisons has like 10% of all prisoners in the country; the federal courts have only like 5% of all defendants.

But what we know about any policy matter in the United States is that the national conversation matters a great deal because it gets media coverage and becomes a focal point of discussion. So what the presidential candidates are saying matters a lot for shaping the politics and the culture around thinking about criminal justice reform and even just raising up its importance.

Have you gotten much feedback from prosecutors about your book?

I always intended the message of my book to be that most prosecutors go into this job to do good and they have high ethical standards. I think the profession very much has the capacity to heal itself.

But people have yelled at me and told me that I was completely wrong and didn't understand. One of the most interesting moments I've had is when I went to the Brooklyn DA's office. I was kind of nervous. You know, Brooklyn DA Eric Gonzalez emerges as a progressive prosecutor in my book.

We were talking to a few hundred lawyers in his office together, and when people were raising questions and being kind of skeptical about the idea of less punishment, Eric Gonzalez was able to say, "Look, I am a career prosecutor. And I know how hard it is to look back and think like maybe I was doing harm. I thought I was helping the community, but maybe I wasn't. But I have to reckon with that and think about whether what we know now means there's a better way to do the job."

It's much more powerful message for Eric Gonzalez to say that then for me to say that because I'm not a career prosecutor. And I think more and more prosecutors are actually willing to say things like that.

All Access is a series of discussions with leaders in the access to justice field. Questions and answers have been edited for length and clarity.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.


--Editing by Katherine Rautenberg.

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