Prosecutors have discretion in determining whom to charge, and through the power of plea bargaining, they control how much prison time most people who are convicted will serve. Today, a new generation of progressive prosecutors is trying to use that discretion to help right historical wrongs. That can mean being less punitive to rein in mass incarceration—but it can also mean aggressively prosecuting gender-based crimes to combat patriarchal bias. Are these two goals in conflict? On a recent episode of Hi-Phi Nation, Barry Lam heard from two voices in criminal justice reform: Natasha Irving, a district attorney in Maine, and Michelle Madden Dempsey, a former prosecutor and feminist legal scholar at Villanova University. This transcript has been condensed and edited for clarity.
Barry Lam: Natasha Irving’s platform during her campaign was to replace “tough on crime” practices, like jailing people for misdemeanor offenses, with restorative justice practices, where perpetrators work with community groups to pay restitution for their crimes. It’s an alternative to prisons, which a lot of evidence shows make low-level offenders more dangerous to society once they’re out. But her platform also included a promise to increase investigation and prosecution of gender-based crimes, domestic violence, and sexual assault.
Natasha Irving: This is one instance where I want to make sure that we’re moving forward on more prosecutions. I just want to make sure that victims aren’t coming to us and saying, “I was raped,” and then we’re telling them that they weren’t raped in the right way. Because that has been the message in the past.
Lam: It’s part and parcel of progressive policies that you’re using the state to help correct historical injustices. It just so happens that for prosecutors, two different historical injustices are pulling them in different directions. Natasha Irving is trying to change the narrative around what counts as good evidence for and against a belief that a sexual assault occurred.
Irving: I hate the term “he said, she said.” It seems to only be used in the context of sexual assault, maybe domestic violence. It’s never used in all the other conceptual “he said, she said” cases—thefts, criminal trespass. A huge amount of our cases would be, technically, “he said, she said” or “she said, she said” or “he said, he said.” We believe testimony based on what we know about the world. We believe testimony based on circumstantial evidence and other corroborating evidence.
Lam: If testimony of victim and perpetrator is the best evidence you have, it doesn’t mean you don’t have good enough evidence. You might. It’s certainly good enough in a mugging or a trespassing charge. And a lot of things people think is good evidence to doubt the accuser just isn’t.
Irving: Whether somebody was under the influence, whether somebody is addicted to a substance, whether somebody has a criminal history when she was allegedly sexually assaulted. They might testify that they willingly went into the car with their alleged rapist. They might say that they didn’t get out of the car. They weren’t locked in, they weren’t handcuffed, but they froze, and they said no. These are the types of cases that may have been declined in the past because traditionally there has been pushback as to whether a jury is going to believe that a woman was raped. Those issues are not pertinent to me. It’s clearly illegal, we believe the victim, we’re going to move forward with those trials.
Lam: In a trial, you’re supposed to prove beyond a reasonable doubt that the defendant committed a crime. Some of the criticisms about Natasha Irving’s approach say that she’s lowering that standard for men accused of gender crimes in the interest of social and gender justice. Feminists, the critics say, want men to be convicted on lower standards of proof. But that’s not accurate. Instead, Natasha Irving is saying that the old standards for gender crimes were set unreasonably high. Evidence that counts as proof beyond a reasonable doubt for a mugging hadn’t been treated as sufficient proof of rape. Conversely, what people took as reasonable doubt that a rape occurred actually doesn’t give reasonable doubt at all. In other words, judges or juries who would acquit because the woman was drunk, or had consensual sex with the defendant in the past, or didn’t leave the car, are not entertaining reasonable doubt—they’re entertaining unreasonable doubt. They’re using sexist standards of evidence. If that’s the argument, feminist prosecutors aren’t lowering the standards for a conviction—they’re correcting them.
Michelle Madden Dempsey: You hope that jurors are going to come with an open mind, but jurors are members of our society and they’ve been socialized in our society, which adheres to many patriarchal norms and has certain ideas about how women should behave. If you’re in a small town and a young man has been accused of a crime, but that young man just happens to be the son of the older man who owns the factory in this small town and that factory employs two-thirds of the town, there’s going to be a lot of implicit pressure to acquit this young man. But that shouldn’t work into the prosecutor’s thinking about whether or not to bring the case forward. We see this play out in sexual offenses, where prosecutors say to a victim, “I believe that you were assaulted. I believe that you were raped. I believe you did not consent to this. But I think I’m going to have a hard time convincing a jury of that.” And that strikes me as absolutely no excuse for dismissing a case. It is ultimately up to the prosecutors to bring the cases to the jury, which the prosecutors believe should result in a conviction. And if the jury acquits, then so be it.
Lam: Dempsey has a view about prosecutorial discretion, particularly with respect to gender crime: Let’s start with the assumption that there’s going to be sexist views out there, including how believable women are, whether a woman’s sexual history makes her less likely to have been raped. A lot of these views will make it to jury boxes or judges’ minds. If you’re a feminist prosecutor, your job is not to defer to these views in determining the merits of a case. You should be aiming to change the society that permits and encourages views like these to stick around. Dempsey calls this advancing a feminist state.
Dempsey: By feminist what I mean is a character trait that stands in opposition to patriarchal. The systematic failure of police officers and prosecutors to investigate these sorts of crimes strikes me as sexism. This is simply a systematic disvaluing of women and girls. They don’t think these cases are worth looking into. It’s very easy for them to tell themselves narratives that make the women or girls to blame for what’s happened to them, and so they don’t bother to pursue it. These strands tend to work together in ways that create and sustain patriarchal structural inequalities. When the state acts in such a way that tends to sustain and perpetuate patriarchy, then I would say that’s a patriarchal state. Let’s try to transform that and act against it, which is what I would call moving toward a more feminist state.
Lam: When a feminist prosecutor is aiming to advance a feminist state, undermining patriarchal norms of what counts as sexual assault, they’re going to lose a lot if they are working in a patriarchal state. That’s a prediction about reality. But, as philosopher David Hume famously said, is doesn’t imply ought. And what will be does not imply what should be.
[To Dempsey:] Would you describe prosecutors who use something like a predictive approach to prosecution as “they’re participating in sexism” or “they’re complicit”?
Dempsey: I would certainly think that they’re being complicit in it. If they abdicate their discretionary power in domestic violence cases to the victims, or if they abdicate their discretionary power to some imagined sexist jury in sexual violence cases, either way they’re abdicating their responsibility as public officials. And in some respects, that’s all just a myth, because they can’t abdicate that power. The power to bring charges, the power to pursue charges, the power to dismiss charges, the power to plea-bargain charges down to something lesser, to sentence-bargain—all of that rests within the power of the prosecutor, and there’s just no getting rid of it. So it is disingenuous for prosecutors to suppose that it’s even possible for them to abdicate that power either to victims’ stated preferences or to some imagined sexist jury.
Lam: A feminist prosecutor is aiming to overturn, not reinforce, patriarchal practices in criminal justice. One implication is that we should go even further than Natasha Irving. Irving thinks you can never predict what a jury is going to do—they might just be feminist enough to convict. Dempsey thinks even if you could reliably predict that you’ll lose, it wouldn’t matter. The goal of effective feminist prosecution is not winning, especially if that means winning by patriarchal standards of justice. The goal is advancing the interest of real justice, the true standards of evidence and proof, the feminist ones.
Dempsey: My primary critique is that prosecutors oftentimes exercise their discretion regarding whether to take a case forward to trial wholly through the lens of whether or not the consequence of this trial will be a conviction. And they therefore fail to see some of the intrinsic values that can be brought forth, [like] kicking off a moral dialogue in the community. And even if it doesn’t ultimately have the consequences, you’re still trying. So there’s what I would call a telic value in trying to achieve these good consequences.
There’s also expressive value. If the prosecutor believes that the facts constitute a sexual assault, a rape, bringing it forward expresses that truth. It’s an expression on behalf of the state that they believe the victim, they believe that what happened to the victim constitutes a crime, and that it’s worthy of being brought forward to a jury. There’s an intrinsic value to the truth-telling by the state regarding that crime. And then, if this sort of behavior is over the long term habituated by prosecutors, they little by little can reconstitute the character of the state from a more patriarchal state toward a more feminist state.