Prosecutors can play a critical role in reform when they focus on the “entire spectrum” of an individual’s encounter with the justice system, from sentencing to reentry, according to a paper co-authored by Manhattan DA Cyrus Vance, Jr.
“The time has come for prosecutors to expand the notion of what their jobs entail,” said the paper.
“Public safety and community betterment are not served by ignoring what happens to people after a prosecutor obtains a sentence.”
Better outcomes can be achieved when a prosecutor balances the severity of punishment with “accountability” towards the offender and the community, the paper said.
The paper is the latest in a series published as part of the Executive Session on Reimagining the Role of the Prosecutor in the Community, organized by the Institute for Innovation in Prosecution (IIP) at John Jay College.
Vance, co-chair of the IIP advisory board, wrote the paper in collaboration with Stanley Richards, executive vice president of The Fortune Society and a formerly incarcerated individual, and Courtney Oliva, executive director of the Center on the Administration of Criminal Law at New York University.
The authors advocate a dramatic rethinking of the traditional role of prosecutors, citing reforms already underway in cities where so-called “progressive” prosecutors have come to office.
“We are…beginning to recognize that improving public safety cannot be solved in a vacuum, because people who become justice-involved are often battling a multitude of socioeconomic factors that increase the risk of involvement in the justice system,” they wrote.
Prosecutors who have instituted changes such as those recommended by the authors, particularly on reducing the severity of sentences or avoiding incarceration altogether for relatively minor offenses, have already attracted an angry backlash from more conservative players in the justice system—including Attorney General William Barr.
Going even further, however, the IIP paper calls on prosecutors to “expand their frame” beyond sentencing and become involved in helping to improve educational programs behind bars and in efforts to improve the prospects for people leaving prison, including addressing their health and housing needs.
Noting that at least 95 percent of incarcerated individuals are released back to their communities, the paper argues that recidivism will be reduced only by recognizing and addressing the “harms that criminal justice involvement, let alone jail and prison time, can inflict over the long term.”
Living in ‘Survival Mode’
Using his own experience to underline the point, Richards, who was released from a New York State facility in 1991, wrote that the overriding need to “survive” in prison provides little space for an inmate to address his responsibility for the crimes he committed.
“I never felt like my crime and sentence was connected to the broader safety of my community or my accountability for the harm I caused,” he wrote. “So I lived in jail and prison in survival mode, never thinking about the harm I had done or the harm I caused my family.”
The disincentives began during the sentencing process itself, Richards recalled. As he shuffled between jail and multiple court dates, every appearance “felt like it was about the prosecuting attorney’s pursuit of punishment.”
The paper suggests that prosecutors begin thinking of the ultimate outcome—the rehabilitation of an offender and his re-integration into civilian society—before deciding on an appropriate sentence, or even whether to charge at all.
For example, the authors noted that reforms in money bail policies introduced by Brooklyn, NY District Attorney Eric Gonzalez and by Philadelphia’s reform DA Larry Krasner to decline to seek bail for most misdemeanors, resulted in significant reductions in pretrial detentions with “no detectable effect on pretrial misconduct.”
But prosecutors should also consider other elements of a defendant’s case that might mitigate a severe sentence—elements such as family circumstances or substance abuse issues.
“Too often, prosecutors approach sentencing as a chance to ‘hammer’ a defendant with a long sentence,” the authors said, noting that this was a traditional byproduct of the “adversarial” culture of modern courtrooms.
“What would a sentencing process look like if it asked prosecutors and judges to account for a person’s individual risk factors, and designed a reentry plan to be implemented in prison, which would help mitigate those risks?” they asked.
The paper cited an Oregon program launched in 2014 called the Multnomah County Justice Reinvestment Program (MCJRP) which uses court and counselling resources to design case management and treatment planning from the moment of arrest. In its first year, MCJRP saw a 42 percent reduction in the rate of imprisonment.
Similarly, prosecutors could step up support for expanded correctional education programs, which reduce the likelihood that released inmates will return to prison and increase their chances of finding stable employment.
Prosecutors do not normally get involved in prison issues, but their offices could use their influence in the system by seeking out partnerships with other agencies to invest more resources, the authors said.
One example: A collaboration between the Manhattan DA’s office, the New York Department of Corrections, and New York Gov. Andrew Cuomo in a $7.3 million program to improve educational programming and re-entry services in 17 state prisons over the next two years.
Improving the health and wellness of returning inmates who are often cut off from health services in their communities should be another major consideration of prosecutors, the authors said. They cited the Health Justice Network, launched in cooperation with New York’s Department of Health and the office of the Manhattan DA, which invests In neighborhood primary health clinics that can provide services geared towards individuals just released from prison.
Other partnerships could focus on providing services to families of the incarcerated, a key element in improving the circumstances that can help returning citizens stay out of prison.
“Family members of the incarcerated are often ‘hidden victims,’” the paper said, noting that children are particularly affected by the trauma of a parent in prison.
“They are community members to whom the prosecutor is also accountable and who are, in a sense, victims of the process.”
Among other programs cited as examples of how prosecutors can go beyond their traditional roles, the authors pointed to one established by the San Francisco District Attorney’s Office, in which prosecutors regularly visit with inmates inside San Quentin prison in a forum aimed at exploring challenges of rehabilitation and reentry.
The success of the venture led to the establishment of a “Formerly Incarcerated Advisory Board,” comprising prosecutors and former prisoners.
“By bringing together these formerly adversarial groups to have a conversation about what happens after a conviction and a sentence of incarceration, prosecutors can nudge their offices toward a paradigm shift,” the paper argued.
Such a shift would persuade DAs and their staff to “consider reentry barriers at all crucial aspects of the life cycle of a criminal case, ” and would help ensure that their reform work “spans the entire spectrum of the system,” the authors said.