Jurisprudence

One Simple Way the Next President Can Transform Criminal Justice

If the Democrats truly wish to make our legal system fairer, they must appoint progressive prosecutors.

WASHINGTON, DC - FEBRUARY 19: The Department of Justice headquarters stands on February 19, 2020 in Washington, DC. A Department of Justice spokesperson is denying that Attorney General William Barr is considering resigning after his critical comments about President Trump Trump tweeting about ongoing Department of Justice cases. (Photo by Drew Angerer/Getty Images)
WASHINGTON, DC - FEBRUARY 19: The Department of Justice headquarters stands on February 19, 2020 in Washington, D.C. Drew Angerer/Getty Images

The progressive prosecutor wave is sweeping the country. Larry Krasner in Philadelphia, Rachel Rollins in Boston, and Chesa Boudin in San Francisco have all scored monumental victories while running on progressive agendas. In New York City, Houston, and Detroit, reform candidates are running transformative campaigns against mass incarceration and cash bail. These campaigns are crucial steps towards reshaping America’s broken and unfair criminal legal system.

But there’s something better than electing a handful of progressive prosecutors across the country: appointing ninety-three of them.

Federal law gives the president the power to appoint the country’s ninety-three U.S. Attorneys. Congress has divided the United States and its territories into distinct federal districts, with a U.S. Attorney serving as the chief federal prosecutor in each district. These U.S. Attorneys are responsible for enforcing the federal government’s criminal laws and advancing the president’s criminal justice priorities. Like all prosecutors, U.S. Attorneys have wide discretion to determine which cases the federal government chooses or refuses to prosecute. For too long, U.S. Attorneys have wielded that discretion to over-prosecute and perpetuate racial disparities in the criminal legal system. If we are to see any meaningful criminal justice reform at the federal level, the next president must change course. For that reason, the 2020 Democratic candidates should make appointing progressive, reform-minded U.S. Attorneys a top priority.

The next president’s U.S. Attorneys should wield their discretion to shift their offices’ resources from garden-variety street crimes to public corruption, corporate conduct, and environmental crimes. And when they do prosecute street crimes, like drug and firearms charges, they should first consider the disparate impact of their charging decisions on racial and ethnic minorities. In all of these efforts, U.S. Attorneys should meet with, and take direction from, community leaders and reform advocates in their respective districts.

Where these U.S. Attorneys come from is also important. Historically, U.S. Attorneys have been career prosecutors, corporate lawyers, or well-connected government officials. Lawyers who have been prosecuting for years, or who have spent their careers defending corporate interests, are predictably resistant to calls for reform and mercy. If the Democratic candidates truly wish to make our country’s criminal legal system fairer and more just, they need to find their U.S. Attorneys elsewhere. One place to start is the corps of federal public defenders, who are intimately aware of the mechanics—and abuses—of their local U.S. Attorney’s offices.

What would a nationwide cast of reform-minded U.S. Attorneys look like in practice? These U.S. Attorneys could decline to prosecute federal marijuana-related offenses that exacerbate our mass incarceration crisis (especially if the state in which they work has already legalized marijuana). They could avoid pursuing charges that would trigger harsh mandatory minimums. They could negotiate fair and merciful pleas without threatening defendants with unconscionably long sentences. They could ensure that those pleas include alternatives to incarceration that more effectively achieve the ends of justice, such as diversion and rehabilitation programs. And along the way, these U.S. Attorneys could tear down the hyper-punitive culture that still infects U.S. Attorney’s offices around the country—even if it means replacing staff who refuse to welcome change.

These changes would drastically improve our criminal legal system. Yet, to date, neither major Democratic candidate has addressed the need for progressive U.S. Attorneys. Joe Biden has vowed to rein in abuses of prosecutorial discretion. Bernie Sanders has gone as far as pledging to appoint an attorney general committed to “creating a more just and humane criminal justice system.” But these plans still fall short. The most effective way to avoid prosecutorial abuse and rethink enforcement is to appoint fair and just prosecutors from the outset.

Given the increased politicization of the Department of Justice, the Democratic candidates might be wary of advocating for reform that could look like undue meddling with the administration of justice. However, appointing a new team of U.S. Attorneys who share the President’s criminal justice agenda is standard practice. U.S. Attorneys, like most political appointees, serve at the president’s pleasure. While the bulk of U.S. Attorneys resign when the White House changes parties, it is “tradition” for a new administration in Washington to wipe the slate of remaining U.S. Attorneys clean and appoint those that are in line with its priorities. Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump all replaced most of the U.S. Attorneys in the country during their time in the White House. While the press described Trump’s mass firing as a “surprise,” the usually-divided Senate confirmed his replacements without controversy: Virtually every nominee passed through by unanimous voice vote. This relatively anodyne process gives the next president an opportunity to immediately reshape the criminal justice landscape.

There are, of course, limits to how much reform U.S. Attorneys can produce. They are supervised by the attorney general, who can greatly influence U.S. Attorneys’ decisions by announcing federal criminal justice priorities and promulgating prosecutorial standards. For example, while local district attorneys can categorically decline to prosecute certain offenses, that policy decision is made by the attorney general at the federal level. While U.S. Attorneys are generally given free rein in their prosecutorial decisions, they usually don’t act against the express policies of the attorney general and the Department of Justice.

In any case, U.S. Attorneys comprise only one (powerful) part of the criminal legal system. Public defenders, judges, and other Department of Justice officials (such as the attorney general and the director of the Federal Bureau of Prisons) play critical roles as well. If the Democratic candidates are serious about addressing the systemic racism and injustice baked into the criminal legal system, they will need to thoughtfully consider who fills those positions. For example, as Yale Law School professor James Forman Jr. argued last year, the candidates should publicly commit to nominating reform-minded Supreme Court justices and lower court judges.

At the end of the day, the U.S. Attorney is the federal government’s representative in the local community they serve. Their decisions must place their community front and center, and that happens by making decarceration and racial justice guiding principles in their work.