Prosecutor Needs To See What Happens “Later”, in Prison

by Mary W Maxwell, LLB

[Editor’s Note:  This article appeared on June 10, 2019 at the Verdict website, by Joseph Margulies, a professor at Cornell Law School. It is reprinted here with permission. Margulies is the author of a book about Guantanamo. The title of this article was “How Should A Progressive Prosecutor Respond to Injustice Beyond Her Courtroom?”]

JUDGE: The clerk will call the next case.

CLERK: The next case, Your Honor, is the City of Montgomery versus Rosa Parks.

DISTRICT ATTORNEY: George Smith for the City of Montgomery, Your Honor. Ms. Parks is present. Ms. Parks, could you stand over here, please?  Ma’am, my name is George Smith. I represent the City of Montgomery, and you and I have spoken before this proceeding, isn’t that correct?

ROSA PARKS: Yes.

DA: And I explained to you that you’ve been charged with violating a city ordinance that obligated you to give up your seat on a city bus when requested by the driver in order to accommodate a white person.

RP: Yes.

DA: Now, we’re here today to resolve that case if we can. But I want to tell you that the choice is completely up to you. Inside this courthouse, you have the power. If I say anything that you don’t understand, or that you want me to repeat, or that you just want to think about for some extra time, please ma’am, just let me know. I’ll ask the judge to stop the proceeding to give you all the time you need. And if you want to get a lawyer, that’s fine too. Inside this courtroom, I don’t want you to do anything you aren’t prepared to do.

RP: I understand that, Mr. Smith.

DA: Alright Ms. Parks. If that changes at any time, please let me know. Inside this courtroom, I want to do everything in my power to make sure this proceeding is fair and just, and that you are treated with dignity.

This proceeding never took place. In fact, a Montgomery police officer arrested Rosa Parks and took her to jail, where she was held until she paid a fine. But my imaginary example illustrates something critical in this age of criminal justice reform and progressive prosecution: A prosecutor cannot discharge her obligation to ensure that every person in the criminal justice system is treated with dignity and respect merely by addressing what happens in the prosecutor’s presence. Instead, she must look beyond her immediate interactions to the larger system of which she is a part. Even if Ms. Parks had been treated with the utmost courtesy, deference, and respect by everyone with whom she interacted—even if she had been treated like royalty—all of us would agree that the entire episode was a gross denial of her dignity as a human being. From the moment she was asked to forfeit her seat because of the color of her skin, to the moment she paid a fine as punishment for the unpardonable sin of refusing to comply with a morally bankrupt demand, she was denied her dignity.

Our hypothetical proceeding makes the prosecutor’s obligation to act beyond her silo perfectly plain. Yet this obligation has played almost no part in the debates about criminal justice reform. Most discussions fixate on what each actor in the system must do, separate from everyone else. The police must end zero tolerance enforcement strategies, prosecutors must end the misuse of cash bail, and prison officials must end solitary confinement. Etc. But this approach encourages actors in the system to don moral blinkers. It rewards them for hunkering down in their silo, and lets prosecutors like our mythical Mr. Smith sleep well at night, knowing that he treated Rosa Parks with dignity. “It’s a shame about these unjust laws,” he says, as he shuts out the light. “Somebody ought’a do something.” That somebody is him, just as it is all of us.

As importantly, conventional discussions of criminal justice encourage us to visualize the system as a series of unconnected steps along an assembly line, and to imagine reform as simply a matter of making each step better. Instead, we should see the entire criminal justice system as the enforcement arm of the carceral state. The carceral state provides a way to organize, justify, and distribute power in society. It provides a logic that makes it seem perfectly natural to respond to homelessness by locking up the homeless, to address mental illness by making prisons and jails the largest mental health hospitals in the country, and to end abortions by threatening to prosecute women who seek them and health care professionals who provide them. In short, we use the criminal justice system to enforce moral judgments rendered, and rendered invisible, by the carceral state. Adding air conditioning to a prison so the people caged inside do not die of heat exhaustion is humane, but it is not the same as closing the prison.

What does the obligation to act outside the silo look like in practice? Some forward-thinking police chiefs and prosecutors are showing us the way. A number of prosecutors, for instance, have refused to charge people arrested as a result of unjust police practices or laws. Very recently, Satana Deberry (the District Attorney in Durham, North  Carolina), Stephanie Morales (the Commonwealth Attorney in Portsmouth, Virginia), and Miriam Krinsky (a former federal prosecutor and Executive Director of Fair and Just Prosecution) co-authored an op-ed in the Washington Post where they denounced the recent spate of laws criminalizing reproductive health choices by women, and urged prosecutors to exercise their discretion and decline to prosecute women or health care providers accused of violating these laws. Their op-ed follows on an earlier open letter signed by more than 40 elected prosecutors and attorneys general around the country, all of whom made the same courageous call.

But acting outside the silo is not simply a matter of resisting or advocating for the repeal of bad law; it also means encouraging good law. Hugh Clements is the longtime Chief of Police in Providence, Rhode Island. He recently wrote an essay for the Providence Journal in which he threw his support behind several pieces of child welfare legislation, including an increase in subsidies for child care and additional funding for pre-Kindergarten programs. Clements said he and other like-minded prosecutors and police officers were taking these and other similar steps “because we recognize that the early years are when children develop crucial social-emotional skills and the foundation for long-term success in school, which greatly reduces the likelihood of involvement in the criminal justice system.”

Even more important—and more difficult—than looking upstream to the legislature and police is looking downstream to the prisons. What is a prosecutor’s obligation vis-à-vis prison conditions? What is her obligation if she knows to a moral certainty that a defendant will be brutalized in prison and subjected to physical and mental torment that would be criminal if done to a dog?

The question is not merely hypothetical. As recent reporting by The Guardian described, people are dying in U.S. prisons and jails at unprecedented rates. The mortality rate in state prisons in this country is the highest it has been since data collection began in 2001. Last year, Texas had the highest number of in custody prison deaths since at least 2005, and saw a 20-year high in prison suicides. There were more deaths in Michigan prisons last year than in any year since at least 1994. More prisoners committed suicide in South Carolina prisons last year than ever before. There were 16 deaths in Mississippi jails in a single month last year, which led the FBI to open an inquiry.

In Utah, at least 71 people have died in jail since 2013. Half of those deaths were suicides, and most were within a week of the person entering jail. Jails in Utah have the highest per capita death rate in the country. (To be sure, most people in prison or jail die of natural causes, but given conditions in some facilities, and the known relationship between length of time in prison and reduced life expectancy, it is at least fair to ask what “natural” means under the circumstances.) And this of course says nothing about the non-lethal violence and abuse to which men and women in prison or jail are frequently, if not routinely subjected, both at the hands of other prisoners and correctional staff.

How does a prosecutor factor in this information when she stands before the court at sentencing? She cannot advocate for a sentence that she knows to a moral certainty will subject a person to conditions of confinement that are unrelated to their moral culpability, and for a far longer period than is morally justified. Whenever such conditions prevail, prosecutors must use their political and persuasive power to advocate for change. Until that change comes, they must be as sparing as possible in calling for a person’s incarceration, and must support parole or release for all men and women who have either demonstrated their rehabilitation, or served the sentence demanded by their moral culpability. In short, a prosecutor cannot turn a blind eye to the prisons in her state.

Calculating the obligation of a criminal justice official who recognizes the wrongs of the carceral state is not an exact science, and the answer will vary from one jurisdiction to another. But no one who participates in the system can hide in their silo. Our mythical Mr. Smith cannot simply look away as Rosa Parks walks out of his courtroom, shake his head at the unjustness that brought her to him, and turn to the next file.

— Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.