Rachel Cicurel is a public defender in the District of Columbia.
This cannot continue. Prosecutors may not be shooting drivers at traffic stops or kneeling on necks, but they perpetuate structural racism by enabling, defending and building upon officers’ behavior. In courtrooms across the country, they use their largely unchecked power to destroy black lives every day.
Take a run-of-the-mill fistfight: Police make the arrest, but prosecutors charge the black 20-something with aggravated assault instead of sending him home with a swollen wrist and a bruised ego. It’s prosecutors who pursue pretrial detention without closely watching the surveillance footage. It’s prosecutors who call the man a danger to society, even though he’s a youth mentor and nonprofit employee and community volunteer. And it’s prosecutors who force him to either risk 18 to 60 months in jail if convicted at trial or plead guilty to a lesser felony that may yield probation but may also guarantee him a criminal record for life.
In theory, a prosecutor’s job is not to maximize convictions any more than a police officer’s job is to maximize arrests. But walk into any criminal courtroom in D.C. Superior Court, where I practice as a public defender, and you’ll see prosecution treated like a sport. Criminal defendants, disproportionately black, aren’t evaluated as people with futures at stake; they are interchangeable chess pieces in a game that encourages hiding facts, overcharging to coerce pleas and winning at all costs.
Prosecutors claim their actions aren’t related to race, but the shackled black men paraded in and out of courtrooms tell a different story. And prosecutorial bias against people of color has been widely substantiated. A 2013 study found federal prosecutors were nearly twice as likely to bring charges carrying mandatory minimum sentences against black defendants as against white ones accused of similar conduct. The Vera Institute of Justice concluded prosecutors were 143 percent more likely to bring first-degree murder charges against black defendants with white victims than any other racial combination. In D.C., specifically, with its wildly disproportionate arrest rates, prosecutions of white people are so rare they’re practically newsworthy.
But these statistics, though alarming, don’t fully capture the nuanced ways prosecutors further a system that inherently devalues black lives. I’ve watched prosecutors fight to keep officers’ misconduct secret after they’ve unconstitutionally targeted, stopped and searched a person of color. I’ve seen prosecutors charge a homeless black addict with felony drug distribution after undercover officers paid her to buy them heroin. I’ve witnessed prosecutors so indiscriminately argue for incarceration they don’t even realize they’ve mixed up one defendant with another. And I’ve listened to prosecutors absurdly claim that a chronically ill black man was as likely to contract covid-19 at home as he was inside a crowded, filthy jail.
Those tactics, and others like them, are chillingly effective at keeping people of color behind bars. In April, the D.C. Department of Corrections disclosed that 88.5 percent of men in its custody were black. This is consistent with years of data showing that 90 percent of D.C. prisoners, but less than half of D.C. residents, identify as black. As of 2017, 100 percent of “young adult offenders” in D.C. were nonwhite. One hundred percent.
Prosecutors talk often about taking responsibility for your actions, but few I know own up to their roles in keeping our racist system alive. They may not have taken the job to further Jim Crow, but they’ve kept it long since learning that moving up the ranks means locking up black people for poverty-related crimes. They whisper about their bosses’ positions being wrong, but neither quit nor refuse to conform. Instead, they blame unwritten office policies or their supervisors’ marching orders. They can’t make waves. They don’t have a choice.
But the truth is: They do have a choice. They choose to use an expensive legal education to further a system that consistently damages black lives. They choose professional aspirations at the expense of others’ dignity. Day after day, they choose to put on a suit, walk into a courtroom and ask for a human to be locked in a cage. And for that choice, they should be held accountable.
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