For weeks, newly-installed Manhattan DA Alvin Bragg has faced a backlash over his “Day One Policies and Procedures” policy memo, which – among other important reforms – limited the kinds of cases in which his office would ordinarily seek prison sentences.
Bragg’s memo is right on the merits. But it’s also important for another, often overlooked reason: Promulgating straightforward and accessible policies about who gets prosecuted, detained, and punished is good democratic practice. It’s the kind of transparency about how prosecutorial discretion is exercised that voters deserve, but rarely get.
Legislatures across the country have given prosecutors vast power to decide who, what, and why to prosecute. That makes them the most powerful players in the criminal legal system, which – as one influential scholar observed almost 20 years ago – operates “in the shadow of prosecutors’ preferences.”
For instance: In Louisiana, where I was a public defender, district attorneys are endowed by statute with “entire charge and control of every criminal prosecution.” Each DA has virtually unchecked discretion to determine “whom, when, and how he shall prosecute.” So prosecutors didn’t just decide what to investigate and whom to charge. They also set the trial calendar. (And when they aren’t ready for trial, the state Supreme Court has blessed the tactic of simply dismissing charges on the day of trial and instantly reinstituting prosecution when the date passes, whipsawing accused people and their lawyers.)
In recent years, progressive prosecutors like Rachel Rollins, the former district attorney of Boston, legal scholars like Rachel Barkow, and journalists like Emily Bazelon have brought more attention to the ways that prosecutorial discretion, run amok, can ruin lives and devastate communities. Confining that discretion, and channeling it into evidence-backed decisions calculated to improve public safety and promote fairness, is a critically important part of prosecutorial reform. That’s why reformers – who want to limit the justice system’s reach – by and large have backed limiting prosecutorial discretion. Revanchists, who long for a return to the era of “tough on crime” policies, have long argued for untrammeled prosecutorial power.
But that dynamic is disrupted when progressive prosecutors take the reins. Then, reformers keep calling for limiting prosecutorial discretion – but they argue that, when legislatures won’t act, prosecutors themselves should institute policies guiding or eliminating their discretion to prosecute or seek harsh penalties for some offenses. That’s what Bragg notoriously did last month with his policy memo.
But this kind of prosecutorial discretion – the choice not to prosecute, or not to detain or seek extreme penalties – drives reactionaries crazy. They argue that prosecutors can’t exercise discretion categorically, binding themselves with policies that “usurp the constitutional role of the legislative branch by refusing to prosecute entire categories of crime.” That argument, aimed most recently at Bragg, mirrors the arguments mustered against previous reformist and categorical exercises of prosecutorial discretion – from the Obama Administration’s DACA policy, which at its core was a policy of discretionary non-enforcement, to Orlando District Attorney Aramis Ayala’s choice not to pursue the death penalty, which erstwhile Florida Gov.Rick Scott answered by stripping Ayala of authority over capitol cases.
Setting hypocrisy aside: The argument against progressive prosecutors’ discretionary policies is wrong in every way it can be. It’s usually devoid of any basis in research. It’s rooted in a deliberate misreading of doctrine. It’s empirically preposterous. And it’s also bad democratic theory.
Bragg’s policy laid out common-sense ground rules that will lead to fewer nonviolent people locked in jails and prisons. As Bazelon has argued, Bragg is right: Most of the time, prison time doesn’t stop crime, and over-incarceration makes us less safe. (And much of the controversy around the memo was drummed up by opponents of the whole idea of reform. As the criminologist and law professor John Pfaff showed, the policy will actually only affect relatively few people. It leaves line prosecutors free to seek incarceration for virtually all felony offenses.)
But even if the memo were misguided, it’s certainly not illegal. Doctrinal objections to policies of non-enforcement are deeply weird legal logic in an era when “we’re all textualists.” Penal laws are on their face an authorization, not a mandate, to prosecute. Simply putting a penal law on the books doesn’t obligate a prosecutor to charge it – and authorizing penalties doesn’t require prosecutors to seek them.
And as an empirical matter, the attack on progressive prosecutorial discretion as somehow anomalous just ignores the facts on the ground. It simply isn’t true that big prosecutors’ offices give line attorneys broad discretion to make individualized determinations in every case. That would be grossly irresponsible, among other things. Instead, prosecutors’ offices often – if not almost always – have implicit and/or inward-facing policies about who and what and why they charge and the kinds of bail amounts and sentences they seek. Bragg, like a lot of other progressive prosecutors, was being transparent and public about his policies. That takes people by surprise because it’s unusual for prosecutors. But it shouldn’t be.
When I started practicing, the Orleans Parish DA had an office-wide policy about cocaine sentencing. A person with no felony conviction priors, charged with cocaine possession, would be offered a chance to plead straight up, and the prosecutor would agree to a sentencing recommendation of probation. The same person with a single prior felony conviction on his record would get 30 months. There wasn’t a memo spelling that out anywhere. Everyone in the courthouse just knew it.
The stealth policy wasn’t just cruel. It was also deeply undemocratic. Because it was an informal policy that only insiders knew about, and only from practice or (horrifically) from personal experience, it wasn’t really in front of the voters. They didn’t have an opportunity to decide whether they really wanted a prosecutor who thought 30 months in prison was the right solution for people who were addicted to drugs.
That brings us to accountability. Normally, executive branch agencies at both the state and federal levels must formally promulgate policies through a rulemaking process. Among other things, that process helps promote accountability and transparency by giving directly-impacted people and voters an opportunity to see what the agencies are doing. But prosecutors are usually exempted from the formal rulemaking process when they make charging and sentencing decisions. So, mostly, they don’t set out their rules in writing, and they certainly don’t release them to the public.
But, in fact, prosecutors’ offices do have policies to guide individual attorneys’ discretion. And they should promulgate those policies clearly and publicly, so that votes can understand whether the prosecutors are doing what they promised or not. Progressive prosecutors have done that to a far greater extent than their reactionary counterparts. Voters can decide whether they like Bragg and other thoughtful reformers are doing – and, if not, they can replace them. That transparency and accountability is a feature, not a bug, of the progressive prosecutor movement.