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Prosecutors’ role in causing — and solving — the problem of mass incarceration

Black Lives Matter activists around the country helped elect some district attorneys who pledged to reduce incarceration and be “smart on crime.”
Black Lives Matter activists around the country helped elect some district attorneys who pledged to reduce incarceration and be “smart on crime.” (Christian K. Lee/The Washington Post)
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Paul Butler is the Albert Brick professor in law at Georgetown University. A former federal prosecutor, he is the author of “Chokehold: Policing Black Men.”

Emily Bazelon’s new book about the American judicial system reads like two books. Both are crucial to understanding the wretchedness of the American criminal legal process, and both offer something missing from most other books about mass incarceration: hope.

The first book in “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration” grabs for the heart: It is a riveting page-turner about two criminal defendants and their prosecutors. The second one goes for the reader’s mind: It’s a lucid synthesis of the most important research on mass incarceration and an insightful analysis of the politics of law and order in the era of President Trump and Black Lives Matter.

In her narration of the two criminal cases, Bazelon earns her title as Yale Law School’s Truman Capote fellow for creative writing and law. Her prose is so engrossing that even though the defendants’ stories are woven into the other parts of the book, I skipped those sections on my first read because I couldn’t wait to see what was going to happen next. Readers who enjoy police procedurals will be gripped by Bazelon’s new genre, the prosecutor procedural, which is even more suspenseful because prosecutors are the most powerful and the most unregulated participants in the U.S. legal system.

In one case, the pseudonymous Kevin is a young African American who had the misfortune of getting arrested for gun possession but the good luck to have Brooklyn District Attorney Eric Gonzalez in charge of his prosecution. Gonzalez is part of a movement of progressive prosecutors who push back against “lock em’ up for as long as we can” responses to every crime. Kevin was subject to a mandatory two-year sentence for what was basically an act of dumb teenage bravado. When New York cops raided an apartment where he and his friends were chilling, Kevin grabbed a gun and claimed that it was his to save a friend from being arrested. His friend faced getting locked up at Rikers Island, New York’s notorious jail, because of his criminal record. But then Kevin had to face New York law, which treated anyone who illegally possessed a gun as a violent felon. Kevin caught a break: Gonzalez allowed some cases to be referred to a program that could result in the charges being dismissed. Thanks to his zealous defense attorney and the fair-minded prosecutor who handled the case, Kevin was able to enroll in this diversion program.

The other case involves Noura Jackson, an 18-year-old white woman from a well-to-do family in Memphis who was accused of murdering her mother. There’s circumstantial evidence of Jackson’s guilt — her mother was stabbed more than 50 times. Jackson made inconsistent statements about where she was on the night of the murder, and she visited a local drugstore that night to treat a cut on her hand. But the crime scene yielded no DNA evidence implicating her, and no convincing motive emerged.

Enter the villain, at least in Bazelon’s telling: Amy Weirich, the prosecutor assigned to the case, believed that Jackson was guilty, and she was not about to let Jackson’s constitutional rights get in the way of her conviction. Weirich withheld evidence from the defense, and illegally commented to the jury about Jackson’s taking the fifth and electing not to testify at her trial.

The prosecutor’s unethical tactics paid off. Weirich won her case, and Jackson was sentenced to 20 years. That was just the beginning of the story Bazelon tells. Spoiler alert: Neither Kevin nor Jackson is currently locked up, but they each endured long travails to realize their freedom, including, in Jackson’s case, serving 10 years in prison.

Thus I am not sure whether Bazelon’s accounts are tragedies or success stories, but they probably qualify as both, considering the vast dysfunction of the American criminal legal process (some scholars and activists resist using the phrase “criminal justice system” because, as Supreme Court Justice Sonia Sotomayor wrote in one of her dissents, the U.S. system is “anything but” just).

Bazelon’s thesis is that prosecutors bear most of the guilt for dragging the country into the morass of mass incarceration, and they are the ones who can help bring us out.

She cites the scholarship of Fordham law professor John Pfaff to demonstrate how in the 1990s prosecutors began to charge many more people with serious felonies, dramatically increasing the number of incarcerated Americans, even after crime rates started to fall. Law professor Angela J. Davis’s important work on prosecutorial discretion also informs Bazelon’s analysis.

When Black Lives Matter activists learned of the vital role of prosecutors, they helped elect some district attorneys who pledged to reduce incarceration and be “smart on crime.” But the book’s breathless subtitle noting a movement to transform prosecution seems overly optimistic. First, of the more than 2,400 elected prosecutors in the United States, I estimate that fewer than 100 identify as progressive. The community, including the scholars who study it, is relatively small ( I should note that Bazelon interviewed me about my scholarship on prosecutors, and her book contains a few references to my work). Still, though it’s small, the movement may have potential.

The more significant worry relates to the politics of crime. The dramatic reduction in crime over the past 20 years has created the space for progressive prosecutors to blossom. Criminologists are not sure what makes the crime rate rise and fall, but they do know that at some point, the numbers will rise again. A pickup in homicides, armed robberies and home burglaries, and the attendant media coverage, would probably send most progressive prosecutors scurrying back into the law-and-order camp.

I wish progressive prosecutors Godspeed, but I am skeptical about the future based on my own experience prosecuting street crimes in the District of Columbia in the 1990s. As a black boy growing up on the South Side of Chicago, I had more unpleasant experiences with cops than I could count, and my interactions with law enforcement didn’t improve much when I moved to Washington as a young lawyer. So I joined the prosecutor’s office, hoping I could create change from within. It didn’t work out as I hoped. The office wanted convictions and tough sentences, which it turned out I was good at delivering, and the reward was raises and promotions. Eventually I remembered that I hadn’t gone to law school to put black people in prison, but I imagine that late realization is small comfort to the many folks whom I locked up.

Bazelon’s own family history, however, offers a glimmer of hope for change. Her grandfather was David Bazelon, a well-known judge of the U.S. Court of Appeals for the District of Columbia Circuit. One of Bazelon’s most famous opinions was in a case in which an African American man shot to death a white soldier who had called him a “black bastard.” The defense wanted the jury to consider evidence that the defendant came from a background of vast economic and social deprivation and had experienced so much subordination that he was unable to control his reaction to the racist provocation.

Bazelon was the only judge on the court who would have allowed the defense. He wrote that, in determining whether someone should be punished, we should examine society’s conduct toward the person facing punishment, and that society has no right to sit in judgment of those it has treated in a condemnable way.

The elder Bazelon offers the most progressive thinking about a way to end mass incarceration: moving away from the punishment regime and the prosecutors who maintain it. Progressive prosecutors gravitate toward sympathetic nonviolent offenders and model prisoners. But the inmates driving mass incarceration are mainly those who have committed violent acts. Until there is solicitude for them and effective alternatives to punishment for those who have caused harm, the United States will continue to be the world’s leading jailer, and prosecutors will do more to implement that cruelty than to ameliorate it.

By Emily Bazelon

Random House. 409 pp. $28