Black Prosecutors Are Changing The Criminal Justice System

Nearly three weeks after the midterm elections, the winner of the hard-fought race to become California attorney general has not been determined. Kamala Harris, the San Francisco district attorney, holds a slim lead over Steve Cooley, her Los Angeles County counterpart.

While this election may not interest many people outside California, clearly the winner matters to people in legal circles nationwide, especially those concerned about judicial policies and practices that have a harmful affect on communities of color. They support Harris’ efforts to address these issues.

As district attorney, Harris is among a current crop of black DAs who are transforming the way crime is addressed, people are prosecuted and punishment is meted out. Her innovative approaches for being “Smart on Crime,” instead of simply “tough on crime” are popular in many quarters but derided by some conservatives. Yet they have gained political currency for being thoughtful and pragmatic, and are being modeled by other DAs, particularly those in communities with large black, Latino or other minority populations.

Underlying Harris’ “smart” philosophy is a commitment to “preserving civil rights and ending cycles of repeat offenses,” which she expounds on in her well-regarded book “Smart on Crime.” If she becomes California’s chief prosecutor, she could apply those innovations statewide and possibly turn the state into a national model for crime fighting through novel prosecutorial practices. If she doesn’t win, her influence will have lasting consequences nonetheless.

“One of the fundamental requirements in building a fair and just criminal justice system is ensuring that from top to bottom that system is representative of the communities it is mandated to protect,” Harris says in an e-mail statement. “I am proud to be in this new and growing group of African American district attorneys. But as my mother always told me, while it’s an honor to be the first, it’s more important to make sure you’re not the last.

“For me that means building a legacy around the adoption of smart criminal justice policy that focuses on back-end enforcement with strict accountability and swift consequences for serious and violent offenders and crime prevention and early intervention on the front end.”

Harris, who is part Indian, Craig Watkins of Dallas County, Texas, and Seth Williams of Philadelphia form a triumvirate of popular black DAs who work in large urban areas and have made headlines for their efforts to be more responsive to communities they serve and to address racial disparities in the legal system that civil rights groups and others have long cited as the cause of the disproportionate incarceration of people of color.

While among the most visible, the three are not alone in taking innovative approaches to prosecuting crimes. David Soares, DA in Albany County, N.Y., is often cited. Nor are all these district attorneys black. In Milwaukee County, DA John Chisholm has been a leader in innovative prosecution of cases, some of which directly affect racial disparities. For example, his office identified whether some of its charging decisions had a racially disparate impact. As a result of the findings, some policies were changed.

During the process, Chisholm collaborated closely with the Vera Institute of Justice, a nonpartisan research center that works with local, state and national officials to improve justice system policies and practices.

When charges for possession of drug paraphernalia were analyzed, they found that black defendants were being charged while whites were diverted to alternatives such as drug treatment programs. So Chisholm changed policy to require that prosecutors obtain prior approval before charging defendants with possession of drug paraphernalia instead of allowing them to participate in an alternative program.

Harris, Watkins, and Williams have become media darlings for their creativity in addressing high recidivism rates and charging and sentencing practices that historically punished minority defendants more harshly than white defendants.

Watkins has been lauded for his Conviction Integrity Unit, which has reviewed more than 400 convictions involving DNA evidence and discovered more than a dozen wrongful convictions. The trio readily admits borrowing ideas from each other and best practices elsewhere nationwide. Williams and Watkins cite Harris as a role model. They have also focused on the shortage of reentry programs that provide job training and socialization skills for inmates leaving prisons, intending to keep them from returning.

“They and other DAs are taking a more thoughtful approach to justice policies,” says Seema Gajwani, program officer for criminal and juvenile justice at the Washington-based Public Welfare Foundation. “They’re interested in more thoughtful views of their role in the criminal justice system. Most district attorneys evaluate themselves on rates of convictions and lengths of sentences, but some of the newer prosecutors, especially those in urban areas, are thinking about the role of the prosecutor in pubic safety.”

It’s too early to tell whether these district attorneys’ actions are having a significant impact on prosecution rates, death penalty cases, sentencing guidelines and other legal processes that tend to be more punitive toward black and Hispanic defendants. But supporters say that over the long term, the new projects will become influential national models. In the interim, the DAs are making a difference in their jurisdictions.

“What it does demonstrate is the impact their voices and deeds can add to changing the dialogue that being tough on crime is certainly not as effective as being smart on crime,” says Wayne McKenzie, director of the Vera Prosecution and Racial Justice Project. “While the former has contributed to making us the greatest incarcerator of our citizens in the world and to growing racial disparities, it’s the latter philosophy that will ultimately lead to improving public safety and addressing racial disparities.”

McKenzie, a former Brooklyn prosecutor and past president of the National Black Prosecutors Association (NBPA), says diversifying and increasing the ranks of prosecutors of color, particularly in supervisory positions that carry greater discretionary power, will have a more significant impact on fighting disparities and promoting equal justice than electing state attorneys general of color.

While the numbers of black prosecutors nationwide remains relatively small—about 40, not including U.S. attorneys who work for the federal government, according to the NBPA—McKenzie says they can still have a significant impact.

“They’re demonstrating that with their actions right now,” he says, citing Watkins’ Integrity Control Unit and other prosecutors’ offices starting to model that unit, and Seth Williams’ use of data to influence evidence based policy and decision making. “It’s all having benefits way beyond just looking at racial disparities.”

Harris, Watkins, Williams and others have acted with an eye toward reducing crime and increasing safety in communities from which lawbreakers come and to which they often return after release. They also work toward building trust and cooperation with communities that often feel abused and disrespected by district attorneys’ offices.

They support alternatives to incarceration for first-time, nonviolent offenders. These include drug treatment intervention programs that help defendants become clean, give them job training, require community service and, after successful completion of the program, remove charges from their records so they will be more likely to find jobs and less likely to continue criminal behavior.

Williams, for instance, uses a community-based prosecution model that assigns prosecutors to specific geographic areas so they can get to know community groups, clergy members, business associations and town watch groups, and track crime patterns geographically. The prosecutors also manage the same cases from start to finish.

“What we’re trying to do here is engage the public,” Williams says. “In a lot of communities, people do not see prosecutors as protectors of the community. They see them as oppressors of the community.” He wants Philadelphia residents to believe that his office is fair across the board, prosecuting people guilty of crimes “and that we’ll have the same standards of justice in every corner of Philadelphia no matter who your father was or what last name you have.”

Williams also created a repeat offender unit and is replicating Harris’ “Back on Track Initiative” that defers sentences for first-time, nonviolent drug offenders who complete a court supervised “intensive personal responsibility program.” It includes job training, education, drug treatment and other services.

Williams says he has raised $1 million dollars in private donations to start the program, which he renamed “The Choice Is Yours.” He says it will reduce recidivism rates by addressing illiteracy, addiction, lack of a high school diploma and mental or other underlying problems that may have contributed to criminal behavior.

California Gov. Arnold Schwarzenegger (R) last year signed a bill authorizing counties statewide to establish the Back on Track program.

In July, the Public Welfare Foundation highlighted national attention and political currency being given to district attorneys’ innovative ideas by awarding a $165,000 grant to the Association of Prosecuting Attorneys to support an increase in “the participation of prosecuting attorneys in progressive criminal justice reform.”

Civil rights groups are watching developments closely but remain unconvinced that these initiatives indicate an actual trend among traditional district attorneys’ offices, not just the isolated work of a few well-intentioned outliers.

“For many years, communities of color have been frustrated by the apparent willingness of prosecutors to turn a blind eye to the ways in which their exercise of discretion causes unjust racial disparities in charging and sentencing, improper systematic exclusion of African Americans and Latinos from service on criminal juries, and unconscionable wrongful convictions,” says Christina Swarns, director of the Criminal Justice Project of the NAACP Legal Defense & Educational Fund.

“These prosecutor offices that submit to legitimate and comprehensive analyses of the ways in which their policies do—and do not—effect equal justice and/or implement policies and procedures designed to ensure the fairness and transparency of its decision making process are taking a significant first step towards restoring community trust in law enforcement.”