Jeff Sessions Does Not Have All the Power

The attorney general can’t stop criminal justice reform in this country.

A New York City police officer stands watch outside of a convenient store on the border of the Bedford-Stuyvesant and Bushwick neighborhoods.

Drew Angerer/Getty Images

In a new collection of essays, Policing the Black Man: Arrest, Prosecution, and Imprisonment, Angela J. Davis gathers contributions from scholars and academics to examine the disadvantaged position from which black Americans are forced to navigate the criminal justice system. From racial profiling, to a flawed grand jury system, to prosecutors who exacerbate existing inequality, America’s criminal justice infrastructure is in need of serious repair.

I spoke by phone with Davis, a professor of law at American University, recently. During the course of our conversation, which has been edited and condensed for clarity, we discussed why district attorney elections are so crucial, who really controls the criminal justice system, and why President Trump and Attorney General Jeff Sessions can’t totally wreck efforts at reform.

Isaac Chotiner: What made you want to connect the police abuse story we’ve been reading so much about to the larger criminal justice system?

Angela J. Davis: The title of the book is Policing the Black Man, and I think people look at that and think it’s just a book about how police interact with black men. But really “policing” is used in the broader sense of the word: how the whole criminal justice system polices black men, from arrest all the way through sentencing. At every single step of the criminal process, black men are treated worse than their similarly situated white counterparts.

The essay you wrote is about the role of prosecutors. Why did you choose that as your focus?

I truly believe that is one aspect of the criminal justice system that people definitely have not been aware of and have been shocked by. We see police on the street. People are aware of racial profiling. People interact with police much more than they do with prosecutors, but very few people know what prosecutors do, unless they are involved in the criminal justice system themselves as either a victim of a crime or as a defendant. I think one of the outcomes of Ferguson was that for the first time people started focusing on prosecutors, right? When the prosecutor in that case refused to indict the police officer and then came out and made that public statement and revealed what happened in the grand jury, I think people were absolutely shocked. Just from my own public speaking on the topic, I was surprised by how people responded with shock and quite frankly despair and horror when they found out how powerful prosecutors are and how little accountability there is for prosecutors.

Prosecutors have a tremendous amount of power. They in fact control the criminal justice system. They decide whether there’s going to be a case or not.

One theme of the book is that once the process of bringing black men into the system starts, it just gets worse. What are the initial things that begin this process?

Racial profiling is the obvious one. That police officers target black men, stop, and search them far more than their similarly situated white counterparts, meaning that they’re doing it in ways that are illegal. That they’re stopping them when they don’t have a legal basis to do so, and those stops result in interactions between black men and police officers, harsh treatment by police officers that gives police officers a basis for arresting them.

Then that starts the process that entrenches them in the criminal justice system. I think most people are not aware that, in fact, black men are prosecuted more frequently and more harshly than white men who engage in the same behaviors. All the studies show that. A lot of people focus on cops, but cops only have the power to bring individuals to the courthouse door. It’s prosecutors who decide whether they remain there, become entrenched there, whether they’re charged with something or not. They have total discretion in making that decision and very little accountability for that decision.

Is prosecutorial reform easier or harder than reforming police departments?

Part of the issue is the election of prosecutors. I personally think it’s almost the key, if not to solving this problem, certainly to improving it. Electing individuals in those prosecutor positions that are going to make decisions that will change the system.

For example, in this last election there were a number of, I will call them bad prosecutors who were unseated by what I call progressive prosecutors who have stated that they have an entirely different view of how prosecution should be done and that they’re really seeking to change the goals of the prosecutor’s office, that it’s no longer just simply to lock people up but to maybe divert a lot of people out of the system, to try to do something about this problem of mass incarceration. I’m heartened by that.

There had been talk of criminal justice reform from both parties in recent years, but now we have a new attorney general and president who seem extremely uninterested in criminal justice reform. To what degree do you think that message from Washington that reform is not important will filter down to prosecutors at the federal and even state level?

I’m very concerned about Jeff Sessions being the attorney general. I’m very concerned that he’s going to roll back all of the progress that Eric Holder and Loretta Lynch were making, particularly with regard to consent decrees. He’s already tried to turn back, to redo the consent decrees that were done in Baltimore and in Ferguson. Luckily, so far, the judge in Baltimore has stopped that.

But you know 90 percent of all criminal cases are prosecuted on the state and local level, so as bad as the federal sentencing laws are, and as harsh as the policies that Sessions is now trying to implement with forcing U.S. attorneys to charge at the highest possible level, we’re still talking about 10 percent of the cases. I’m actually not as concerned that the administration’s harsh policies and their efforts to turn back criminal justice reform will impact that many cases.

Why did you decide to call the book Policing the Black Man rather than policing black people?

This was a question I knew I would be asked a lot. I think that black men are in somewhat of a unique position in the criminal justice system. Here’s what I mean by that. I certainly, certainly am aware of and in fact have been writing about for decades the fact that people of color in general, particularly African Americans and Latinos, and also Native Americans, are treated so harshly in our criminal justice system. LGBT people are treated worse in the criminal justice system. By focusing on black men, I am in no way minimizing or trivializing the horrible experiences of all of these groups. But if you look at, just looking at the sheer numbers, black men are treated worse. Black boys are disproportionally arrested and detained, much more so than their white counterparts.