About 70 percent of the DAO staff and 80 percent of its lawyers were white in a city that was roughly 40 percent white. The people who got locked up in Philly were mostly Black and brown; so were most victims and survivors. The DAO didn’t resemble Philly in its racial demographics. But that was only part of the self-satisfied, homer culture of the office that we hoped to diversify and make more reflective of the world that criminal justice engages if we won the election. We wanted life experiential diversity, as well as geographic, linguistic, religious, intellectual, age, gender, and sexual orientation diversity. We wanted all personality types. We also wanted experienced mid-career and late-career lawyers whose idealism and expertise drew them to us. The DAO staff we hoped to work with if we won needed to understand and reflect their client: the people.
On the campaign trail, I told people I was interested in attracting lawyers whose career experience, life experience, or studies showed they were open to questioning the traditional prosecution approaches of the past. The kind of lawyer who was set on locking up even more people for even more years would have a few thousand traditional prosecutors’ offices where they could work to make mass incarceration even worse. But they wouldn’t be working in the DAO in Philly if I was elected. The people we would want to recruit would be change agents whose vision was to improve the world to make it more humane and just.
People didn’t necessarily know what progressive prosecution was as we campaigned. We were educating, evangelizing, proselytizing. We campaigned by telling people what we were about—and it was working: We convinced voters that we were nothing like traditional prosecutors, which was what they were hoping to hear in most Philly neighborhoods in 2017. Popular culture around criminal justice had shifted.
We recognized the inevitable, slow twist in the history of prosecutorial politics. In my thirty-year criminal justice career, the moral high ground had shifted completely with the catastrophic rise of mass incarceration, the enduring decline of crime in America, and the writing and scholarship around it. In the early 1990s, the prevailing notion was that defending people charged with crimes was immoral. As a young public defender from 1987 to 1992, I had my morality questioned repeatedly by all kinds of people who often asked how I could defend “those people.” But by 2017, time had flipped it. I knew that Philly voters were rightly questioning the morality of prosecuting “those people” in traditional ways. We would need to answer their question.
The answer was something I had lived and learned during my career. Progressive prosecution filled the space abandoned by the compassionless power of traditional prosecution. We had a case to make that progressive prosecution was like all sacrifice for others in public service: Its goal was to positively change the lives of the people served, something traditional prosecution had failed to do. In a number of cities around the country—Chicago, San Francisco, and Seattle, to name a few—it was already under way. It was time for Philly to catch up, to combine great power with great compassion.
At the level of culture, America was ready for a serious discussion about criminal justice reform. In 2018, the legal scholar James Forman, Jr., won the Pulitzer Prize for his 2017 book Locking Up Our Own, a nuanced and unflinching history of how and why Black politicians, community leaders, and others assisted in pushing the war on drugs, which backfired into the mass incarceration of Black people. Forman won the prize in the same year as Kendrick Lamar, the first hip-hop musician ever to win the Pulitzer. Lamar won for Damn, the album that followed his 2015 Grammy-winning album, To Pimp a Butterfly, and the track it contained, “Alright.” “Alright” became a Black Lives Matter anthem for a while, at least. The fortress was feeling a shift—two Pulitzers, one for telling a lesser-known and self-reflective story of mass incarceration, the other for a voice from the heart of the world mass incarceration created.
Forman is a brilliant writer whose book is equally brilliant. He clerked on the U.S. Supreme Court, and walked away from the fortune he would have made in big law if he had wanted it. Instead, he chose to work for little money for eight years at the most prestigious public defender’s office in the United States, the Public Defender Service for the District of Columbia. While there, he lawyered for poor defendants in criminal matters and founded a school for juveniles who were in custody. James is the son of James Forman, Sr., the civil rights leader whose youthful image appears frequently in 1960s-era black-and-white photos from the movement, sometimes standing right next to Dr. King. The elder Forman is known for his radical and strategic work with the Student Nonviolent Coordinating Committee (SNCC), Black Panthers, Freedom Riders, and others throughout his career. He was at Selma, Birmingham, and Albany among other places when it mattered. In later years, he was an academic. Writings from throughout his career live on. And he was a highly regarded strategist, always focused on the win.
That culture shift, however, did not mean everyone was gravitating toward progressive prosecution. There were loud voices in the community and academia that contended prosecutors’ offices, like jails, were beyond redemption. Paul Butler, an ex-prosecutor and law professor, was one of those voices arguing that idealistic people should not become assistant prosecutors. In a traditional prosecutorial system, the training, supervision, policies, and culture would either corrupt them or expel them. They could do more good as public defenders. He had a point. As long as the prosecutor’s office was run by the traditional status quo, I agreed.
But I felt completely differently about an office run by a progressive chief prosecutor who was committed to achieving criminal justice reform inside and outside the office. And thirty years in the trenches eliminated any notion that the dogged and capable public defenders I respected and admired were ending mass incarceration or improving prosecutors’ other practices. The data was undeniable: They weren’t, no more than I had during my criminal defense career. We had to do what was necessary to win.
My campaign made me rehash my own decision to run for district attorney—my own belated, almost desperate awakening to the fact that my life’s work for individual clients was buried in an avalanche of incarceration I had no way to address.
Was it moral to prosecute “those people”—to be a prosecutor, even a progressive prosecutor? To me, the answer was yes. If anything, given the decades of failure by dedicated people to change prosecution from the outside, my question was: Was it moral to let a traditional prosecutor prosecute “those people” when a progressive prosecutor could take their place?
It needs to be said: Don’t be too virtuous to win. It’s okay to win. This is a discussion I used to have with activists I represented all the time. I would meet with them in a large group. There was always the coolest one, the one with the literal or figurative beret and the fist in the air, the one who was outdoing everyone else, more-radical-than-thou. And that one was going to have the best social life with people who were already in the room. But that was usually not the person who had been arrested fifteen or twenty times and had fifteen or twenty years of experience and knew that when you actually are winning, you have to know how to solidify that win by reaching over to your enemy and embracing your enemy.
The reality is that I was asked a bunch of times to run for judge as a Green Party candidate (no thank you), to run for DA as a Green Party candidate (no thank you). And it was no thank you for an obvious reason: I wanted to win. Dramatic and virtuous failures have their place, but what’s wrong with winning?
What I used to do as a defense lawyer was go into a courtroom, walk up to a prosecutor who didn’t agree with me, and say, “Please, please, please…come on now, let’s do a reasonable thing here.” And the answer I would get most of the time was “no,” because I was talking to somebody who didn’t agree with me about anything on the planet or in history.
What would it have been like all those years if I had done the same thing but the prosecutor I approached was me? Even though the prosecution and defense have different
obligations and do not completely share information, the outcome between me as defense lawyer and me as prosecutor would have been a lot better for justice. Because the reality is that the locus of power is generally the prosecutor, even more than the judge or jury. And yes, a dedicated public defender can sometimes dunk over the head of the prosecutor, getting justice from a jury on something like a question of proof beyond a reasonable doubt or innocence. But there are a lot of things criminal defense lawyers just cannot wrestle from a jury and cannot wrestle from a judge—unless they bring their values along and become prosecutors, in which case they can do these magical things.
My wife has this expression, which she started using only after she became a judge: “Ta-da!” She uses it to mean that, like a fairy princess, a judge has a wand and gets to wave it and say “Ta-da!” and magically make justice happen. Well, that’s what judges can do some of the time. And prosecutors do the same, only they have a lot more magical power to do justice: “Ta-da! We are not pursuing the death penalty in this case.” “Ta-da! Don’t pursue the highest charge.” “Ta-da! Reopen that cold case.” “Ta-da! We’re not okay with excessive sentencing.” That’s power. That is not theoretical power. That is real, magical power to do justice. And that’s power that I didn’t have working in the criminal justice system as a criminal defense attorney, standing outside the DA’s office, banging my head against the wall, and trying to persuade a bunch of prosecutors who are beyond reason and will just keep carrying out a philosophy that is antithetical to justice.
So I decided I couldn’t keep doing what I’d been doing on the outside of power, as a criminal defense attorney. I could feel virtuous and pure doing criminal defense on the outside, maybe even put on my figurative beret and put my fist in the air when no one was watching, or I could run for district attorney, try to win, and if that worked I could just get it done. I decided at fifty-six years of age, let’s just get it done. Let’s just change every broken thing that we can, knowing we can’t change everything.
The criminal justice system in America is rooted in slavery, racism, and social control as much as it is rooted in anything we can really call justice. Internationally unprecedented mass incarceration in the United States has been wreaking havoc on vulnerable communities for five decades. Stepping into a prosecutor’s shoes means actually sending people to jail, and many of those people will be Black and brown and poor and troubled for all the structural and historic reasons we already know. We can’t fix it all, but complete fixes are for absolutists and purists, not pragmatists who recognize that every minute of every life can be improved in ways that profoundly heal us all. Being a progressive prosecutor means you can improve justice because you have the power to change things. You will change things if you can bear the discomfort of holding and wisely using power.
Is the system itself—burdened by a grotesque track record of inaccuracy, bigotry, violence, and cruelty—so darkly murky that we don’t know how to find a path to real change? Shouldn’t we try? Isn’t trying to be fair with our moral compass pointed north okay, even when we have to take action in the murk?
Consider a hypothetical example that unquestionably resembles thousands of actual crimes: The victim was his financially struggling family’s hope and pride and just days away from leaving town for college when he was robbed at gunpoint in the parking lot of a fast-food place where he was working his after-school shift. The young shooter and some other, older teens took the victim’s car keys and could have left with the stolen car and done no further harm. Instead, they began to taunt the victim while he lay prone and submissive on the ground. The young teen shooter then stood over the victim and shot him to death.
The example is complicated by the reality that we treat juveniles, especially younger ones, differently from adults in our criminal courts. The U.S. Supreme Court and the latest neuroscience are both clear that juveniles have immature brains and are therefore less capable of consequential thinking than fully grown adults, but also more capable of rehabilitation. Juveniles are both less culpable for their actions and more capable of improvement. That was the state of the especially immature hypothetical teen who pulled the trigger. The victim’s brain was all over the asphalt. You could hardly find a more sympathetic victim; you could hardly find a more immature offender for such a terrible crime. Neither one of their two families would ever be the same.
What does justice look like in a system where juvenile jurisdiction often ends at twenty-one years of age and where juvenile jails (which we call “placements”) mostly try to rehabilitate but often fail, and where adult prisons mostly don’t even try to rehabilitate? In other words, what does justice look like in this terrible case in a system that cannot competently look after the victim’s rights, the young perpetrator’s rehabilitation, or the community’s safety? Whose interests matter more or less? Where is the balance? The life of the victim was sacred and needed an accounting, an act of justice. But wasn’t there also something sacred in this barely teenage defendant who had, in an instant, ended his victim’s promising life and so much of his own life that night? For how many years should a prosecutor try to send this child away—and to what place should he be sent? What should happen in that place?
I don’t know exactly what justice looks like in that case without doing more homework, just as I don’t know for many other cases like it before doing the work. Defendants do not walk into a courtroom with a number on their foreheads that tells us the sentence they deserve on a truly serious case, or any other case for that matter. Experienced prosecutors are used to spitting out a number of units of time—years, months, days—that reflects their gut, which usually means how they were trained and mentored and brainwashed by more experienced, traditional prosecutors. We know that approach is exactly how we got mass incarceration, and it was almost never based upon criminological science. Can’t we do better than that, even when we don’t have all the data and science we would like, and even though deciding on how much time in custody is enough is a murky task?
My answer is that seeking justice means doing your homework first before making tough choices among the possible outcomes in an imperfect system. First, you gather as much useful information as you can get about the killer’s life, the victim’s life, the other people involved, the night, and everything else that matters. You will need some school records on the defendant, prior testing of various types, family information, prior law enforcement contacts, drug and alcohol use, addiction, psychological records if any, responses to treatment. You may need to order new or additional testing, and to hear from some experts.
Try to find and discern each piece of that information like someone peering through fog to spot and interpret objects that are far away. Which factors suggest the possibility of more rehabilitation and less future danger? Which factors suggest less rehabilitation and more future danger? What mitigates the criminal conduct? What aggravates it? Being thirteen years old mitigates more than being a juvenile of sixteen or seventeen because it shows extraordinary immaturity in considering consequences, and even greater potential for rehabilitation than an older juvenile. Shooting the prone victim to death when the robbery was complete aggravates. The negative peer pressure and influence of older participants mitigates. The killing of a victim who played no role in initiating the violence aggravates. Consider the input of the survivors and the crime’s terrible impact on them and society. And so the looking goes. There is no point scale to fit into a formula, except maybe the one derived from the CDC’s Adverse Childhood Experiences (ACE) Study, which measures such factors as witnessing violence, sexual and physical abuse, neglect, extreme poverty, and so forth. And no point scale alone will ever solve such a complex puzzle.
Once the work is done, there are options to consider. Does the case belong in juvenile court, where jurisdiction will end in most states at a particular age? In Pennsylvania, for example, that age is twenty-one, so a young teen’s potential period of reha
bilitation, monitoring, and incarceration would end in no more than eight years for a terrible murder. What juvenile placements or institutions offer a real shot at rehabilitation, given the specific needs of a young teen? How effective are those placements and services within the juvenile system in reality—not just in their shiny brochures? Or does the case belong in adult court, with the potential for a much longer sentence? The juvenile defendant would not serve time in adult jail until reaching adulthood. Is more time warranted? In some circumstances, there might be potential for a combination of a juvenile sentence and an adult sentence. No matter how hard we try, there are some things we just can’t see with certainty in this murk. But we try to see them all, because specifics matter, like lives.
What I do know for sure is that someone has to make the decision. Someone has to look closely into that murk, and struggle with the imperfect options we have. It really matters who that person is. That person could be a prosecutor who believes that people change and who is committed to human dignity, rehabilitation, and the wise use of resources to increase safety by preventing future crime, someone whose expertise and sensibilities are like those of James Forman, Jr. Or it could be a less thoughtful and knowledgeable, punitive prosecutor who believes the world is binary, inhabited by unchanging saints and monsters, who is committed to revenge, retribution, and a false notion of safety based on endless incarceration rather than using resources to prevent future crime. These two prosecutors have different visions of justice that will lead to different outcomes. The story of mass incarceration in this country is the story of one of those people’s errant set of beliefs and values triumphing over the other’s. It’s the story of what happens when you build a whole system on those values, and the human costs of that system. Lawyers in criminal justice can try to hold powerful roles as judges, legislators, or even well-established and respected criminal defense attorneys later in life.
For the People Page 19