The EconomistAugust 31st 2019 United States 37A
fter dan conleyannounced last year
that he would not seek re-election as
the district attorney (da) for Suffolk Coun-
ty, Massachusetts, which includes Boston
and a few surrounding towns, five Demo-
crats and an independent vied to replace
him. Mr Conley endorsed Greg Henning,
who worked for him for ten years. Mr Hen-
ning also received endorsements, and
plenty of campaign contributions, from lo-
cal police unions. Such support usually
creates a glide-path to victory.
In this case it did not. Mr Henning lost
to Rachael Rollins, one of a wave of das try-
ing to reform the criminal-justice system
from within. Ms Rollins has identified 15
charges—including shoplifting, receiving
stolen property, drug possession and tres-
passing—“best addressed through diver-
sion or declined for prosecution entirely”.
Her office requests cash bail only when the
accused is a flight risk. She has created a
panel that includes a defence lawyer and a
public-health expert to review all fatal
shootings by police. These positions are all
unusual for an elected da; traditionally, the
toughest-on-crime candidate wins. But the
American conversation on criminal justice
is changing. Ms Rollins may be in the van-
guard, but she is not alone.
Her companions come from both par-
ties. For 12 years Right on Crime, an advoca-
cy campaign run by the conservative Texas
Public Policy Foundation and the Ameri-
can Conservative Union Foundation, has
advanced conservative arguments for
criminal-justice reform. The Trump ad-
ministration’s only significant bipartisan
legislative achievement has been passing
the First Step Act, championed by Jared
Kushner, Donald Trump’s adviser and son-
in-law. That bill, passed in December,
among other things banned the shackling
of pregnant prisoners and made thousands
of prisoners eligible for early release.
Democratic presidential candidates
have sought to build on this momentum;
Bernie Sanders and Elizabeth Warren have
released particularly ambitious reform
plans aimed at reducing mass incarcera-
tion. But much of what they propose will
either not work or be impossible without
Democrats taking control of both houses of
Congress, which seems unlikely.
Mr Sanders, for example, wants to
spend $14bn a year on public defence law-
yers. That is an admirable idea, but one that
a Republican-controlled Senate is unlikely
to approve. Ms Warren wants to repeal
most of the 1994 crime bill, which in-
creased incarceration rates. But one of the
ways it did that was by incentivising states
to pass “truth in sentencing” laws, which
require prisoners to serve at least 85% of
their sentences. Repealing a federal bill
will not change those state-level laws. Both
candidates want to ban private prisons, but
say nothing about prison-guards’ unions,
which are more effective drivers of mass
incarceration. The work being done by das
like Ms Rollins show how real criminal-
justice reform can be achieved.
The primary lesson is that reform pro-
duces resistance. Kevin Graham, who
heads the police union in Chicago—home
to Kim Foxx, another reformist prosecu-
tor—says he does not believe that “a prose-
cutor is going to achieve social justice in
America...The job of a prosecutor is to pros-
ecute people. We have defence attorneys. If
we choose not to prosecute...then the laws
don’t mean anything.” Others think that Ms
Rollins is making decisions that should be
left to legislatures. “If your idea is to basi-
cally...decriminalise certain statutes, run
for your state general assembly,” says Duf-
fie Stone, a prosecutor who heads the Na-
tional District Attorneys Association.
Ms Rollins replies that her predecessors
often declined to prosecute low-levelcases; she just made practice into policy.
And that policy is not absolute. She distin-
guishes between three hypothetical tres-
passers: a homeless person sleeping on
public property, someone who falls asleep
while high in a city hospital, and a violent
felon caught with a gun outside his ex-
girlfriend’s house. The first two, she ar-
gues, need help, not a criminal record; the
third deserves the charge.
In a speech to police officers on August
12th, William Barr, the attorney-general,
derided “anti-law-enforcement das” who
refuse to enforce “broad swathes of crimi-
nal law. Most disturbing is that some are re-
fusing to prosecute cases of resisting po-
lice.” As it happens, resisting arrest, when
not combined with more serious charges,
is on Ms Rollins’s do-not-prosecute list.
Here too she draws a distinction: “If you’re
charged with armed robbery and resisting
arrest, that’s very different than a stand-
alone resisting-arrest charge, which is of-
ten just, you’ve pissed this police officer
off.” Annoying a police officer may not be
good practice, but it is not a crime.
The results of Ms Rollins’s approach, Mr
Barr warns, “will be predictable. More
crime; more victims.” Most reformist pros-
ecutors have not been in office long
enough to tell. But Ms Rollins does not pre-
tend to be a fortune-teller. Like many re-
formers, she has invested in data—her de-
partment has hired a technologist to
update the creaky computer system. And
she promises to be responsive to it. “If my
policies, through data, show things are get-
ting worse, why in God’s name would I
want to make anything worse than it is?...
And if the Boston Patrolmen’s Association
wants...to say, ‘See, we told you,’ I’m going
to say, ‘You’re right’.” 7BOSTON
A few prosecutors show that criminal-justice reform is local, and not easy
Criminal-justice policy
Righting the battleship
It is tough to walk the walk