The False Choice Between ‘Progressive’ and ‘Old-Fashioned’ Prosecutors

In football, when a flag is thrown only on the player who retaliates against an initial violation that was missed, the penalty is still enforced. If we say two wrongs don’t make a right for athletes or our children, the same should apply in our criminal justice system. Unfortunately, we are presented with a false choice between the old-fashioned approach of measuring a district attorney’s success by how many and how long people are locked up, and the new-fangled attempt to frame the only alternative as “progressive prosecution.” We must blow the whistle on both and commit to a data-driven, transparent, and collaborative approach to seeking justice.

No matter the case or circumstances, many prosecutors have operated as if their sole goal was to pursue every case and obtain the harshest sentence that the law permits. Too often, this tunnel vision also led prosecutors to ignore exculpatory evidence. Some D.A.’s offices even used the average of length of prison terms as a formal measure of their success.

While Americans are right to demand a more holistic and balanced approach, this goal should not be politically pigeonholed. One of the few roles of government virtually all Americans agree upon is seeking justice. For a prosecutor to do so effectively, it requires being data-driven, transparent, and collaborative.

First, prosecutors must not simply be the first stop on an assembly line of justice, disconnected from whether the defendant is ultimately rehabilitated. This means maintaining an internal dashboard so that, for example, a prosecutor can see how defendants of a certain profile, such as those charged with low-level drug possession, fared in the past. In Harris County, Texas, once the D.A.’s office began to work with the adult probation department to gather this data, they found that several years later those who received pre-adjudication diversion to a treatment program recidivated at far lower rates than those sent to state lockups.

Second, just as many government entities have posted their financial books online so taxpayers can see how their money is spent, D.A.’s offices must make data showing how they handled cases available to the public. Constituents and researchers should be able to see the outcomes of each case, including benchmarks such as recidivism over several years and victim satisfaction rates.

Finally, D.A.’s offices must collaborate with stakeholders, including the judiciary and law enforcement. In Fort Bend County, Texas, the D.A.’s office is working with judges and defense lawyers to implement a risk assessment review at the defendant’s initial bail hearing, allowing for more informed decisions. Considerable attention has been given to a handful of district attorneys who have said they won’t prosecute certain cases such as public intoxication, though there is typically a caveat noting that each police report will still be reviewed in case there is some more nefarious conduct. Curiously, though, even if such non-prosecution policies were truly categorical, they would, taken alone, risk either ignoring lawbreaking or overusing jail instead of more cost-effective alternatives.

This is because the arrest and booking into jail for public intoxication or other minor misdemeanors is typically the brunt of the punishment. In Texas, less than 1.4 percent of those in local jails were sentenced for a misdemeanor conviction, though thousands in Texas and across the country languish in jail prior to trial when they cannot afford bail. Even if they beat the rap, they haven’t beaten the ride.

There must be some form of accountability, but collaboration can often lead to better answers than arrest and prosecution, the latter often occurring months after the problem has passed. For example, many jurisdictions have found success with empowering police to deflect individuals away from jail, including sending those charged with public intoxication to a sobering center. A collaborative prosecutor can work with law enforcement to identify the types of cases in which police are given the authority and tools to implement urgently needed interventions in coordination with other stakeholders, including mental health systems.

Two wrongs don’t make a right. Overcoming the failures of the past does not require being “progressive;” but rather an approach to prosecution that draws at least as much from traditionally conservative priorities such as limiting government and measuring results. Fulfilling the unique obligation of prosecutors to do justice for victims, communities, and defendants should not imply a political agenda. Instead, it should depend on gathering and analyzing data, being transparent with the public, and collaborating with partners to provide a full spectrum of responses to crime so that liberty is limited only to the degree needed to protect public safety.