A Prosecutor as a Change Agent
The mass incarceration of African American men and the high percentage of young and middle-aged African America men missing from life in their communities is a growing focus for scholars and political and social leaders. There is even growing agreement across the political spectrum that we incarcerate too many people. But where can reformers start?
State and national criminal justice systems are huge collections of entities that interact but don't necessarily collaborate productively. Elected politicians legislate definitions of crimes and their penalties. Police decide whom to arrest, and prosecutors, grand juries, trial juries, judges, lawyers and probation and parole officers, all operating in their own distinct environments, influence individual fates and the way the law is carried out.
In her book The New Jim Crow, Michelle Alexander, a legal scholar and civil rights advocate, documents historical, economic and social forces that coalesced in recent decades to cause the disproportional incarceration of black men. She and other scholars say the inducement of millions of dollars of federal funds in the 1980s led local police departments to target black communities in the War on Drugs. Alexander wrote that in 2003 the justice system employed nearly 2.4 million people, and that government figures showed the U.S. spent $185 billion on police protection, detention and related activities, a figure that had risen to $212 billion a year by 2013. That's a lot of jobs and strong economic incentive to maintain the criminal justice system as is.
Who can initiate changes? Legal analyst Jeffrey Toobin describes the central role played by prosecutors: they decide whether to drop a case or take it to trial, what charges to bring, and whether to demand prison time or accept probation. In his New Yorker article "The Milwaukee Experiment" Toobin tells how Milwaukee County Prosecutor John Chisholm is fostering reform. He invited independent researchers examine the work of his own office and they found racial disparities in charges and prison time for low level drug offenses, prostitution and property crimes. Chisholm initially thought the larger number of white people arrested for property crimes suggested some racial balance until further probing found suburban property crimes got more attention. What the data really meant, he told Toobin, was that "we devalue property crimes in the center city." Car theft? Probably just a junker anyway. In Chisholm's view, that was one more disparity to address.
Chisholm began what he called an "evidence-driven public health model." He wanted his staff to do more than just process cases. He realized the least experienced staff members were handling the most minor cases, and generally following what had been done in the past, without examining whether the person should be charged with a crime and whether incarceration was necessary. Chisholm began community outreach and an early intervention program that allowed some low risk offenders to be diverted into unofficial probation or more intensive post-arrest supervision initiatives and drug rehab. Those who successfully completed alternate programs could have their criminal records expunged, increasing their chances for employment. A Chisholm staff member convinced Habitat for humanity to renovate houses in a particularly crime-ridden neighborhood, and the crime rate dropped precipitously. Still, Chisholm's approach has had critics. Governor Scott Walker and allies who favor tough arrest and sentencing policies are adamant ideological opponents.
The effort has been partially successful. Chisholm's office is sending far fewer low level offenders to prison. But violent offenders are still being locked up and racial disparities in incarceration persist. Chisholm says broad forces beyond prosecutorial control-poverty, hopelessness, lack of education, addiction and the easy availability of guns-impede solutions. Toobin calls that a lesson in humility. "We redesigned our system," Chisholm told him, "but we learned that no individual actor can change the dynamics of what goes on in a complex larger system like a city." Read Toobin's piece here.