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| Derick Dailey |
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| Brandon Ruben |
For those, like us, seeking transformation of our racially fraught criminal legal institutions, Judge Garland is an encouraging choice. By his own words,[1] he is committed to holding white supremacists and others accountable for the Jan. 6 terrorist attack on the U.S. Capitol, and he has a history of prosecuting white extremism.[2] Even more encouraging are Biden's nominations of civil rights lawyers Vanita Gupta and Kristen Clarke as associate attorney general and chief of the DOJ's Civil Rights Division, respectively.[3]
But let's be clear: The president and the DOJ, no matter how forward-thinking, cannot transform America's criminal legal landscape.
Why? Because we do not have a central criminal legal system subject to federal authority. Rather, in addition to our federal system, we have a sprawling network of 3,100 criminal legal systems representing every county and county equivalent in the country.[4]
Accordingly, presidents and DOJ officials are highly constrained in their ability to effect change in the local institutions where the vast majority of arrests, prosecutions and incarcerations take place. Even with respect to our federal system, Biden will soon appoint new chief prosecutors in most districts, but the vast majority of line federal prosecutors will remain the same.[5]
Given this decentralized regime, the work of transforming our criminal legal systems falls largely on the judges, prosecutors and defenders who operate them day to day.
We have served as a prosecutor and defender, respectively. These two actors, in our experience, have the most direct control over the cases that pass through our criminal legal systems. In our view, individual prosecutors and defenders — working together — are thus uniquely well-positioned to effect change.
Contrary to what many believe, prosecutors are not merely advocates. As legal canons of professional responsibility provide, they are ministers of justice.[6] To that end, prosecutors are called to do more than simply secure convictions.
Defenders, by contrast, are zealous advocates for their clients.[7] In that role, defenders bear witness to the social, racial and economic injustices that bring many of their clients into contact with America's criminal legal systems.
Rather than rigidly conceiving of themselves as adversaries at every turn, prosecutors (as justice-seeking officials) and defenders (as advocates and witnesses) should invite communion with each other, in order to eradicate the injustices to which they are proximate.
At this juncture, we believe prosecutors and defenders' first priority for collaboration should be damming the flood of inefficient, ineffective and unnecessary prosecutions.
Today, it is common knowledge that America leads the world in incarceration,[8] especially the incarceration of Black and poor people.[9] Less understood, however, is the fact that at least 80% of criminal prosecutions concern petty conduct, often related to poverty and mental illness, currently criminalized as misdemeanors.[10]
Accordingly, in our view, prosecutors and defenders share an urgent professional and moral responsibility to ensure that all conduct that can be addressed outside of criminal legal systems is so addressed.
While we do not pretend to have a comprehensive prescription for accomplishing this goal, below, we offer three examples.
First, prosecutors and defenders should publicly advocate for, and lobby state legislatures to fund, alternative emergency response programs.
Through these programs, big cities and small towns nationwide are enlisting public health professionals, instead of law enforcement, as first responders to certain 911 calls.[11] Importantly, initial data suggests that these initiatives have yielded positive health and safety outcomes as well as resulted in fewer unnecessary arrests and prosecutions.[12]
But despite the initial success of alternative emergency response programs, they remain limited in number.
As with any major policy shift, skepticism abounds. Indeed, several state legislatures — including Arizona,[13] North Carolina[14] and Georgia[15] — are considering legislation that would penalize municipalities for reallocating monies from police budgets to alternative public health and safety measures. Less police presence, it is commonly argued, will allow for the profusion of dangerous behavior.
But this is not so. Prosecutors and defenders know all too well that, in fact, police spend 95% of their time addressing conduct other than violent crime.[16] How do we know? Because prosecutors and defenders spend countless hours investigating and litigating cases predicated on arrests for nondangerous behaviors.
Accordingly, prosecutors and defenders have a critical role to play in educating the public and lawmakers about the type of conduct most arrests entail, and how addressing this conduct by other means would save municipal resources and improve health and safety outcomes for people.
The second and third examples we offer of how prosecutors and defenders can work together to transform our criminal legal systems draw inspiration from the recently popularized concept of conviction integrity units, which numerous prosecutor offices have established to review convictions that might have been improperly obtained.[17]
Indeed, in the spirit of our argument, at least two chief prosecutors, one in Westchester, New York,[18] and the other in New Orleans,[19] have just in the past few weeks tapped former public defenders to lead such units. This type of collaboration gives us hope.
Missing from these efforts, however, are review units dedicated to preventing cases, where there is an arrest made, from unnecessarily entering and languishing in criminal legal systems. In our view, prosecutor offices, working together with defenders, should bookend conviction integrity units with initiatives focused on front-end justice, including, what we call, declination review units and pretrial detention integrity units.
As the name suggests, a declination review unit would be dedicated to analyzing whether, for a given case, a prosecutor should decline to prosecute. In other words, after every arrest, the unit would determine whether criminal prosecution is warranted or if the alleged conduct is best addressed through other means, such as a restorative justice program.[20]
Having a former defender lead or co-lead such a unit would, in our view, be beneficial, since defenders are often very familiar with problem-solving organizations that exist outside of criminal legal systems.
Finally, in cases where an arrest is made and a court detains the accused prior to trial, prosecutor offices should develop units dedicated to continuously analyzing whether pretrial detention is appropriate.
As recent analyses demonstrate, and as we have observed in our practices, every year millions of people are detained prior to trial because they cannot afford bail or on the basis of uncorroborated allegations of dangerous conduct.[21] Many of the accused, at great cost to their lives and to municipalities' pocketbooks, languish in jail for weeks, months or even years only to have their cases dismissed at or before trial.
Preventing such wrongful pretrial detentions is as important as reversing wrongful convictions.
Accordingly, just as many prosecutor offices have developed conviction integrity units, they should develop pretrial detention integrity units. Moreover, prosecutors should tap former defenders to lead these units, because defenders are often especially sensitive to the damage unjustified pretrial detentions can do to individuals and communities.
As advocates for transformation of our criminal legal systems, we are happy Biden was elected and hope Garland, Gupta and Clarke are confirmed. But their election and nomination is not cause for the like-minded among us to breathe a collective sigh of relief. Rather, it is impetus to demand that localities elect and hire justice-oriented prosecutors and zealous defenders unafraid to communicate the injustices they witness.
Moreover, now more than ever, we must insist that these actors work together to shrink their collective footprint, in order to help usher into existence a more effective, efficient and just public health and safety paradigm.
Derick D. Dailey is an associate at Davis & Gilbert LLP and a former assistant U.S. attorney in the District of Delaware.
Brandon P. Ruben is a public defender in Maryland.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.cnn.com/2021/02/20/politics/read-merrick-garland-opening-statement/index.html.
[2] https://www.theguardian.com/us-news/2021/feb/01/merrick-garland-oklahoma-city-timothy-mcveigh-attorney-general.
[3] https://www.theguardian.com/us-news/2021/feb/03/kristen-clarke-vanita-gupta-biden-justice-department.
[4] https://www.vox.com/policy-and-politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in.
[5] https://www.cnn.com/2021/02/08/politics/leftover-trump-us-attorneys/index.html.
[6] https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor/comment_on_rule_3_8/.
[7] https://www.americanbar.org/groups/criminal_justice/standards/DefenseFunctionFourthEdition/.
[8] https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.
[9] https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.
[10] https://lawdigitalcommons.bc.edu/bclr/vol61/iss3/4/?utm_source=lawdigitalcommons.bc.edu%2Fbclr%2Fvol61%2Fiss3%2F4&utm_medium=PDF&utm_campaign=PDFCoverPages.
[11] https://theappeal.org/politicalreport/state-lawmakers-are-pushing-new-bills-to-reduce-reliance-on-police/.
[12] https://www.cbsnews.com/news/denver-health-professionals-replaced-cops-in-handling-hundreds-of-low-level-incidents-for-6-months-and-successfully-did-so-with-no-arrests/.
[13] https://arizonadailyindependent.com/2021/02/01/bill-would-allow-sheriffs-dps-to-take-over-police-departments-if-budgets-reduced/.
[14] https://www.newsobserver.com/news/politics-government/article249266455.html.
[15] https://www.ajc.com/politics/georgia-house-backs-bill-to-block-cities-from-cutting-deeply-into-police-funding/A767MW2VYRHVDL7RY2SXGO26UE/.
[16] https://www.nytimes.com/2020/06/19/upshot/unrest-police-time-violent-crime.html.
[17] https://www.law.umich.edu/special/exoneration/Pages/Conviction-Integrity-Units.aspx#:~:text=A%20Conviction%20Integrity%20Unit%20(CIU,Conviction%20Review%20Units%20(CRUs).
[18] https://gothamist.com/news/new-westchester-da-revamps-conviction-review-unit-puts-public-defender-charge.
[19] https://www.nola.com/news/courts/article_b3545d42-784d-11eb-9e12-8fb36f86a313.html.
[20] http://restorativejustice.org/#sthash.dzF3qVJJ.dpbs.
[21] https://www.prisonpolicy.org/research/pretrial_detention/.