I guess it’s not about numbers.

It’s more about percentages. The percentages reveal more about the problem.

The percentages are more damning.

And here, you can see the percentages — glaring in how deeply they reveal the structural racism of the criminal justice system — in animated form.

Animated to best allow for comprehension, because the depth–the scale–of the criminal justice system’s racism is truly incomprehensible.

The percentages are damning because 95 percent of elected prosecutors across the country are white.

Only one percent of the 2,400 elected prosecutors in the United States are women of color.

And most prosecutors — especially considering the extremely racist impacts of prosecutorial discretion in the criminal justice system — wield even more power than judges or cops.

(Which is terrifying. Because cops in the United States kill U.S. citizens at 70 times the rate that cops kill citizens in other economically dominant countries.)

The animation — a project by the Reflective Democracy Campaign on Who Prosecutes America — illustrates in no uncertain terms the fact that almost 80 percent of prosecutors across the country are white men. Only 31 percent of the population of the United States is white men.

(The amount of power they have? Who wouldn’t be shocked by that?)

These white male prosecutors have almost complete impunity to run the system as they will. Their decisions are “almost entirely outside of public scrutiny.”

And these decisions? These decisions that they make? These decisions include altering the jury pool so that more Black people will be killed by the state, as such:

Federal prosecutors often seek the death penalty in federal court in cases that otherwise would be tried in state jurisdictions with substantial minority populations.  Because the federal districts are much larger – they are made up of many counties – they are predominately white. Crimes that are usually prosecuted in state courts can be prosecuted in federal courts based on any “federal interest” such as a carjacking. Federal prosecutors have repeatedly sought the death penalty in New Orleans, Richmond, St. Louis and Prince Georges County, Maryland, where African Americans make up the majority of the population in the county and the jury pools. The decision to prosecute federally in these jurisdictions alters the racial makeup of the jury pools from predominantly black to predominantly white. Those same federal prosecutors seldom seek the death penalty for crimes that occur in counties with largely white populations.

These decisions include seeking life sentences for possessing small amounts of marijuana.

Life. Sentences.

That means that these decisions include sending mostly people of color to die in prison because they carried pot in their pockets, something that white people like me do daily without fear.

This animation is important. This animation is key.

Because this animation demonstrates why and how so many people of color are sentenced to death, daily, by white men.

And it’s completely legal.

Featured Image Courtesy of [Christian Senger via Flickr]

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post How Many Prosecutors Do YOU Think Are White? appeared first on Law Street.

A prosecutor is “an administrator of justice” whose duties are “to seek justice, not merely to convict.” According to the American Bar Association,

It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.

Chances to combat these injustices often occur in the strong role of prosecutorial discretion in determining someone’s prison sentence. Many argue that prosecutorial discretion is such an enormous responsibility that prosecutors have the power to be strong social justice advocates. Many others, however, suggest that prosecutorial discretion leads to tremendous racial disparities in sentencing. So the question is: Is it possible for prosecutors to be social justice advocates? Or is the criminal justice system overall too big for prosecutors to make any social justice-oriented, system-wide changes from within?

In Defense of Prosecution?

In her Brennan Center post entitled “Prosecutors Can Play a Role in Ending Mass Incarceration”–which argues exactly that–Lauren-Brooke Eisen, Senior Counsel at the Brennan Center’s Justice Program reminds us of the various roles of prosecutors:

The reality is that prosecutors play a unique and immensely powerful role in the criminal justice system. They decide who gets charged, and most importantly, with what crime, and what plea bargains to accept and reject. Sentencing recommendations from prosecutors carry immense weight with judges.

Largely due to this prosecutorial discretion, federal courts impose 20 percent longer sentences on Black men than they do on white men who are convicted of committing similar crimes. Courts similarly impose longer sentences on Latino men than they do for white men convicted for similar crimes.

Many interpret these roles as evidence of prosecutorial racism, because prosecutors determine the course of such huge pieces of defendant’s cases. The immense racial disparities in charging, plea bargaining, and sentencing are all directly traceable to prosecutors’ structurally informed choices. However, Eisen uses this information to argue that the point at which a prosecutor encounters a defendant’s case is already beyond the point at which interference is needed. Eisen asserts that prosecutors can and should play a role in preventing crimes and recidivism.

This is consistent with both the Brennan Center’s recommendations that it should be the priority of federal prosecutors to reduce incarceration, recidivism, and violence, and with former U.S. Attorney General Eric Holder’s shifting priorities for law enforcement. Calling for a “Smart on Crime” approach, Holder has stated:

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate – or appropriate – to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.

Prosecutors wishing to pursue such a holistic approach may learn about doing so by exploring resources such as those provided by the Vera Institute of Justice’s Prosecution and Racial Justice Program.

Prosecutors and Restorative Justice

When writing of the extremely large roles prosecutors play in determining the course of the lives of people accused of crimes, activist and scholar Angela Davis argues that:

Whether or not prosecutors intentionally or unconsciously discriminate against defendants of color in the charging and plea-bargaining processes, their decisions–even the race-neutral ones–may cause or exacerbate racial disparities. Their tremendous power and discretion is often exercised in ways that produce unintended and undesirable consequences. However, that same power and discretion can be used to remedy the problem.

Some of these remedies may include ensuring that alternatives to incarceration are widely available across the country. One way that prosecutors can provide alternatives to incarceration for people convicted of committing crimes is through restorative justice processes. Restorative justice is defined by the National Council on Crime and Delinquency as:

Restorative justice offers alternatives to our traditional juvenile and criminal justice systems and harsh school discipline processes. Rather than focusing on punishment, restorative justice seeks to repair the harm done. At its best, through face-to-face dialogue, restorative justice results in consensus-based plans that meet victim-identified needs in the wake of a crime. This can take many forms, most notably conferencing models, victim-offender dialogue, and circle processes. In applications with youth, it can prevent both contact with the juvenile justice system and school expulsions and suspensions. Restorative justice also holds the potential for victims and their families to have a direct voice in determining just outcomes, and reestablishes the role of the community in supporting all parties affected by crime. Several restorative models have been shown to reduce recidivism and, when embraced as a larger-scale solution to wrongdoing, can minimize the social and fiscal costs of crime.

By utilizing prosecutorial discretion to refer people convicted of crimes to restorative processes instead of being incarcerated, prosecutors can avoid contributing to mass incarceration and can avoid inflicting the devastating collateral consequences of incarceration. Restorative justice alternatives are currently being used successfully in piecemeal initiatives across the country in schools to avoid suspensions and expulsions that contribute to the school-to-prison pipeline. However, many criticize practitioners and advocates of  restorative justice for staying within the overall criminal justice system because restorative justice works within the system and assumes that there are equal conditions to “restore,” it arguably ignores the fundamental injustices that shape mass incarceration to begin with. Therefore, prosecutors who attempt to advance social justice ends with restorative justice alternatives to incarceration may make positive differences in individual people’s cases, but have an arguably limited impact on mass incarceration as a whole.

#PlotTwist: Changing Who Gets Prosecuted

Along these same lines, some prosecutors may also attempt to advance social justice goals through the prosecution of corporations that are exploiting human labor, perpetuating abuses, and damaging the environment. Critics of these approaches argue that this kind of prosecution is not holistic: it addresses individuals and individual corporations, not the systems that facilitate the abuses in the first place.

Similarly, it is possible for prosecutors to specialize in criminal and civil cases against cops who discriminate and violently abuse their power. Certainly, many social justice advocates actively demand more prosecution of cops. Much of the recent #BlackLivesMatter uprisings recently have been focusing on the fact that prosecutors don’t tend to charge cops who beat and/or murder people of color.

However, many criticize these attempts, too, because they exist only within an already racialized system, thereby reinforcing the power of the criminal justice system that created mass incarceration to begin with. When social justice advocates–or prosecutors–try to use the criminal justice system for social justice aims, they are implying that the criminal justice system does, in fact, deliver justice, when many believe that it does not.

As the prison abolitionist blog Prison Culture published in a post in the wake of George Zimmerman murdering Trayvon Martin in 2012, prosecuting cops or vigilantes who target people of color in the name of “justice” serves to reinforce people’s beliefs that they should turn to the criminal justice system for solutions:

I think that making the main focus of our activism with respect to Trayvon’s killing the prosecution of George Zimmerman is short-sighted. Additionally, it does nothing to address the root causes of racism and oppression which were surely the fuel for this murder. For black people, our history on issues of crime, law, order, and punishment is complex and usually conflicting. In this moment, I question why we as black people who know that there is no “justice” in the legal system are expending the majority of our energy demanding “justice” from said system. How are we going to find “justice” in the prosecution of Zimmerman? The answer is quite simply that we will not.

Attorney and author Paul Butler generalizes this frustration to the role of prosecutors in general. In a forum at NYU in 2009 (see video above), Butler disagreed with moderator Anthony Barkow about the potential role of prosecutors in serving social justice ends:

Butler contended that with racial profiling by police and mandatory sentences for many drug crimes, prosecutors have little power to fight these problems from the inside. To answer the question at the center of the debate, the efforts of good people would be wasted as prosecutors, in Butler’s view. Barkow, however, said that attorneys, even when they are not the lead prosecutor, can and do make discretionary decisions that allow them to work within the law to have influential voices in cases. ‘Supervisors will often defer, extensively in my experience, to the line prosecutors,’ Barkow said. ‘So the line prosecutors making all these discretionary decisions are really kind of driving the bus most of the time…Butler’s overarching position on how good people can and should behave in regards to our system of justice was quite clear, provocative, and sobering.’ He maintained that the way to fight social and racial injustice was not to be a part of the institutions that help to further it. ‘The determination of who goes to criminal court in chains…should not depend so much on race and class,’ Butler said in conclusion. ‘As long as it does, we need people who believe in social justice and racial justice to stand up, to be strong, and to refuse to be complicit.’

So, Can Prosecutors be Social Justice Advocates?

While injustices in the overall criminal justice system make it hard or even impossible for prosecutors to be social justice advocates from within the system, there may be piecemeal, individual roles for prosecutors to play toward incrementally achieving some social justice goals amid broader injustices in the criminal justice system.

Resources

American Bar Association: Prosecution Function

Open Society Foundation: Racial Disparity in Sentencing

Leadership Conference: Race and Prosecutorial Discretion

Brennan Center for Justice: Federal Prosecution for the 21st Century

American Civil Liberties Union: Words From Prison: The Collateral Consequences of Incarceration

Race, Racism, and the Law: Prosecutors as the Most Powerful Actor in the Criminal Justice System

Brennan Center for Justice: Prosecutors Can Play Role in Ending Mass Incarceration

School Book: Alternatives to Suspension: Inside a ‘Restorative Justice’ High School

Partnership for Safety and Justice: Restorative and Transformative Justice: A Comparison

Nation: Why It’s Impossible to Indict a Cop

Prison Culture: Trayvon Martin and Black People for the Carceral State

Crunk Feminist Collective: Trayvon Martin and Prison Abolition

New York University Law: Butler and Barkow Discuss the Role of Prosecutors in Social and Racial Justice

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post The Role of Prosecutors as Social Justice Advocates appeared first on Law Street.

On August 11, 2014 Dillon Taylor was shot dead by Officer Bron Cruz. Cruz claimed that Taylor had a weapon and that he felt threatened by the situation because he was “100 percent convinced” it would end up in a gunfight. But no weapon was ever found on Taylor and only the first minute of the body cam footage on Cruz was released at the time of the court prosecution. Prosecutors in Utah declared the killing of Taylor justified in October 2014. But now the entire eight minute video of the shooting has been released. The video pretty convincingly demonstrates Taylor’s innocence, and continues to raise questions about the force used by police officers in the United States.

In the video, Cruz yells “Get your hands up, now!” Originally, it was reported that Taylor’s response was “No, fool” before turning around to face Cruz. Cruz said he believed that Taylor was holding a gun because when he turned around he briefly lifted his shirt, a movement that often indicates a person is reaching for a gun, and that he was going to attack Cruz. As a result of this information, the court ruled Cruz’s actions as justified. Another factor that allowed the judge to clear Cruz of any charges was that he was responding to a report of a man brandishing a gun in the area. When Cruz came across Taylor and the two men with him, he believed that they were the men that the report was referring to.

Contrarily, the full video that has now been released ten months later shows Taylor wearing headphones, explaining why he did not respond to Cruz’s command to put up his hands. The remainder of the graphic video shows Cruz bending over Taylor’s body and placing him in handcuffs instead of calling for medical attention. Cruz also does not attempt to slow the bleeding of Taylor’s wounds.

Taylor’s death falls into the larger pattern of police brutality that particularly became a national conversation last fall and has continued to be a controversial issue ever since. In 2015 alone, there have been 472 people killed by the police. While many of these victims were armed and many officers probably felt threatened, the number of deaths at police hands is directly contributing to the environment of heightened anxiety and fear.

This problem is going to keep coming back again and again. While body cameras are one proposed solution and numerous counties, cities, and states have implemented them into their police departments, that one solution is not enough. The entire footage from Cruz’s body camera should have been released at the time he was being prosecuted. Instead, only the first minute of the video was used as evidence during the court process.

Police brutality is not an issue that is going to disappear, and it shouldn’t disappear if there isn’t any reform. Police officers should not be trained solely to kill and police departments should not be so militarized. These steps towards reformation will reduce the anxiety and fear that permeates so many communities.

Editor’s Note: A previous version of this article stated the date of Dillon’s death as August 11, 2015; Taylor’s death occurred on August 11, 2014.

Sarina Neote

Sarina Neote is a member of the American University Class of 2017. Contact Sarina at staff@LawStreetMedia.com.

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Here at Law Street, we’ll be donating a lot of time to the bad guys in the next few days (foreshadowing!).  Today I am going to buck that trend, and extol the virtues of the modern day superheroes: prosecutors.

I’m embarrassed to say that I’m one of the kids who used to watch Law & Order and Perry Mason and think “one day I want to be a lawyer.”  They did all of the quintessential lawyer-like stuff, or so I thought.  I then went to law school and learned that most lawyers never get to do the awesome stuff that I saw on TV.

Cut to summer 2011, and I’m in New York at the first day of my internship with the U.S. Attorney’s Office for the Southern District of New York.  I’ve mentioned this before, but I took the job on a whim.  I had no idea what being a prosecutor entailed, but the AUSAs I worked for gave me a baptism by fire.  This baptism was among the best experiences of my three years in law school.

I worked with two of the smartest people that I have ever had the pleasure of meeting.  One AUSA graduated from law school and worked at a top law firm for four years.  He then decided he wanted to become a prosecutor, so took the (often necessary) first step of clerking for a federal judge.  Immediately after starting the clerkship, he began the arduous task of applying to be a U.S. Attorney.  The timing worked out perfectly, and by the time his clerkship ended he was sworn in as an AUSA.  The second AUSA that I assisted had the highest GPA on record at her law school, clerked for a 4^th Circuit Judge and then Justice Scalia (SCALIA!!!!).  The pressure was definitely high; I knew that if I could impress them, then maybe the whole “legal career” was not just wishful thinking.

On my first day, I met AUSAs and was given three memos due by the end of the week.  This task was daunting considering that first year law students have four months to create their first legal memo. The difference with these memos was that they were being used in real trials of real people who faced real loss of their liberty.  That kind of pressure lit a fire under me that a legal writing grade never could, and it was the best type of game time challenge.

The second day, I was the second chair at a hearing in an illegal reentry case in front of a Southern District of New York judge. Big stuff! It was also my first encounter with a heinous example of legal unprofessionalism; a legal aid attorney was in no mood to be cordial or cooperative, and was not going to let a little thing like the law get in the way of representing her (guilty) client.  What did I learn?  The best way to shut opposing counsel down is not by being rude or snarky; it is stopping every argument they make with correct law, strong analysis, and a smile.

I experienced much in those three months working with the USAO-SDNY, and I maintain that it was the coolest job I had while in law school.

It became evident to me that summer why prosecutors are the most likely candidates for judicial appointments.  They gain real experience in the practice of law, in terms of persuasive writing, oral arguments, and jury trials.  They have insane workloads, and still find time to give each case the attention it deserves.

During my second year of law school, Justice Sonia Sotomayor came to my school for a dialogue with the students.  One of the questions presented to her was what she thought of the Supreme Court’s composition of former prosecutors and how that background affects their rulings.

Part of her answer focused on an inherent desire to stop the bad guys, and how that desire colors their interpretation of the law.  With that statement, she solidified what I always knew: prosecutors are wearing capes today, and are a huge cog in the wheel that protects us from criminals.

I work in homeland security now, and we often have to deal directly with prosecutors, judges, and law enforcement to further our goals of public safety.  The scenarios that I have been privy to range from the mundane to the insane, and the federal and local prosecutors are in the thick of the madness.

So as you consider your career trajectory, or why you’re considering law school, think about the lawyers you see on TV and know that it’s a real option for you.  Also, check out our crime blog, with it’s analysis of FBI statistics and crime data.  When you find yourself being terrified by the danger levels of certain cities, just make sure you locate the District Attorney and U.S. Attorney’s offices and send them a fruit basket or something, because they’ve got your back.

Images: [Wikimedia] [Wikimedia] [Wikimedia]

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Peter Davidson is a recent graduate of law school who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy.

Featured image courtesy of [megadem via Flickr]

Peter Davidson II

Peter Davidson is a recent law school graduate who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Contact Peter at staff@LawStreetMedia.com.

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