Larry Krasner continues to build a reputation as the prosecutor who wants to keep people out of prison. Among other head-turning changes, Philadelphia’s district attorney has stopped prosecuting marijuana possession, instructed his 300 assistant district attorneys to stop seeking bail on low-level charges, and had his office begin plea negotiations below the low end of the state’s sentencing guidelines.
Krasner has unwaveringly pushed further left than his “reform-minded prosecutor” peers, a class that now encompasses state and county law enforcement officials in jurisdictions from Houston, to Chicago, to San Francisco. Recently he further broke into new territory by speaking out about the elephant in the room: violent crime, a classification that most state inmates are in for.
Krasner has challenged the idea that every person convicted of killing should be sent away for the rest of their lives, which is the mandatory minimum sentence for first- or second- degree murder in Pennsylvania. He has mandated that he personally sign off on any deal offered that exceeds 15 to 30 years in prison. According to a recent Philadelphia Inquirer analysis, in six cases that were initially filed as “murder generally” Krasner sought third-degree or involuntary manslaughter charges rather than the first- or second-degree murder charges that would have been the norm under his predecessors. While comprehensive national comparisons are hard to come by, criminal justice experts view this willingness to lower murder charges as a first of its kind effort among prosecutors in major municipalities.
“We are not going to overcharge,” Krasner told Slate of the new practice. “We are not going to try to coerce defendants. We are going to proceed on charges that are supported by the facts in the case, period. The era of trying to get away with the highest charge regardless of the facts is over.”
This promise represents a 180-degree turn from traditional prosecutorial practice, which is to charge as high as possible no matter the facts in the hopes of negotiating a lower plea deal. This is finally starting to change, and Krasner is leading the way. Inspired by works such as Michelle Alexander’s seminal The New Jim Crow, those who have been in a position to institute some version of criminal justice reform have so far focused on the most sympathetic offenders: those who have committed nonviolent drug crimes. This, though, represents the tip of the iceberg. Even if the country released every single inmate convicted of possession or trafficking, it would only take a relatively small bite out of mass incarceration. Of the 1.3 million inmates held in state prisons in 2016, only about 15 percent were convicted of drug crimes, whereas more than half, 55 percent, were in for violent crimes, according to a Prison Policy Initiative report.
“Violent crime has seemed a third rail in criminal justice reform discussions,” said David Alan Sklansky, a Stanford Law School professor and former federal prosecutor. But “it’s always a mistake to think that you can divide crime into two clean distinct categories: the criminals that deserve understanding and the criminals that are beyond redemption.”
Because prosecutors are generally elected officials, they have been reluctant to risk votes by seeking a reform approach to violent crime. “I think responsible prosecutors try to do the right thing even if they think there will be political costs, but they also try to be sensitive to the needs and concerns of their communities,” Sklansky said.
Which is just to say: By speaking publicly about not seeking the highest penalty for a killing, Krasner is going out on a political ledge. Though their position is to represent the state, prosecutors are also understood to be advocates for crime victims. And indeed, Krasner has gotten pushback from some victims’ families. He has seemed to be steadfast, though, in his position against overcharging.
“Part of the motivation for always charging the highest charge was the political management of victims. It became very easy to always say what aggrieved, traumatized victims want to hear,” Krasner told the Inquirer. “Then, when a jury or judge a year or two later has to straighten that out and knock it down to size, you just raise your fist and shake it at the judge or jury.” Krasner’s approach, though, is to prosecute what can be proven by the facts.
In Pennsylvania, the difference between first- and third-degree murder is intent. (Second-degree is felony murder, whereby if anyone dies during the course of a felony, say, a burglary, everyone involved is charged for the killing.) Again, Krasner’s approach has not been without controversy. Former Pennsylvania Gov. and Philadelphia District Attorney Ed Rendell argued that juries and judges were best situated to determine the facts of a case that might lead to a heightened sentence. “The downside is that someone escapes the appropriate punishment,” Rendell told the Inquirer. “You’ve taken the charge off the table, so neither the jury nor the judge has the right to impose it.”
While this way has been standard practice around the country, reformers have argued it should be considered antithetical to the role of a prosecutor. “The prosecutor should only file charges he believes he can prove beyond a reasonable doubt,” former federal prosecutor Chiraag Bains said. “Just because you’ve got a big hammer in your toolbox, doesn’t mean you should threaten to use it.”
Though Krasner has been the first to speak out about excessive murder charges, his colleagues in New York have also dipped their toes into changing punishments for violent crimes. Brooklyn DA Eric Gonzalez and Bronx DA Darcel Clark have allowed some violent felony cases to be diverted outside of the standard carceral state apparatus. The program, Common Justice, is the first restorative justice program in the nation to handle violent crimes in the adult courts. In certain cases, the perpetrator goes through an intensive violence intervention program, in lieu of incarceration, that includes at its center a dialogue process with the victim.
“Almost everyone comes back from prison, and they don’t come back better for it,” said Danielle Sered, executive director of Common Justice. Prosecutors have long cited justice for victims as the reason for seeking max penalties during campaigns and in the media. However, the only national poll of crime victims found that a strong majority would rather perpetrators receive rehabilitation than severe punishment. The Alliance for Safety and Justice surveyed more than 800 crime victims in 2016, including victims of violent crime such as rape or the murder of a family member: About 70 percent wanted more neighborhood-based rehabilitation and less prison. More than half thought prison made a person more likely to reoffend.
Sered believes that key to the election of reform-minded prosecutors has been that those candidates and the outside organizations mobilizing voters are in neighborhoods most affected by crime. “People who live in neighborhoods where violence is are voting for change,” she said. “It’s about being pragmatic.”
The Common Justice program is groundbreaking, but Krasner’s approach—if it continues and spreads—is potentially monumental.
“Violent crime can have a devastating impact on communities and of course individuals,” said Bains. “But so can oversentencing for those crimes.”