How Prosecutors Can Usher in a More Just Legal System | Opinion

George Floyd. Ahmaud Arbery. Breonna Taylor. We say their names, yet there is not enough time in the world to call out all the names of Black people whose deaths are intrinsically connected to a criminal legal system that was designed to target and control Black communities.

The case against the inherent inequity of our criminal legal system makes itself, and the evidence of prejudice and racial injustice is well-documented. Forty percent of the people who are currently incarcerated are Black, despite the fact that Black people only represent 14.6 percent of the U.S. population. At its core, the criminal legal system was created to control freed formerly enslaved people, and it continues to draw from a precedent of terrible injustice by perpetuating policies that disproportionately police Black people, such as the Violent Crime Control Act and Law Enforcement Act of 1994 and predictive policing models built on data corrupted by racial bias.

These policies lead to high arrest and incarceration rates of people of color, with no parallel proof that these policies are making our communities any safer. In fact, the alarming rates of COVID-19 infections and deaths in prisons and jails—coupled with outright violence against Black people—demonstrate exactly the opposite: The criminal legal system is one of the biggest threats to public health and safety and is literally killing Black people.

This is a moment of reckoning. Over the last month, people across the country have amplified and intensified calls for immediate and lasting change and the correction of deep-seated racial inequities in the criminal legal system.

As gatekeepers to the legal system, prosecutors play an essential role. Some, such as District Attorney Rachael Rollins in Massachusetts' Suffolk County, have already taken important steps to address the system's disproportionate impact on Black communities by adopting decarceral policies that focus on redirecting people away from the criminal legal system, as well as releasing people serving particularly long sentences.

It is a disgrace that it took more taking of Black lives for us to come to this reckoning. Black people deserve justice. We must go further.

In fact, it shouldn't take a national pandemic or countless murders at the hands of the police to prompt much-needed changes. If we are to right the historical wrongs, prosecutors—who must also reckon with their own role in perpetuating systemic oppression—must place racial equity at the center of their efforts to change the criminal legal system.

Prosecutors are sworn to serve in the interest of justice. This means using their discretion to advance safety, community well-being, and justice and working to move away from reliance on incarceration, which disproportionately harms Black communities. Instead of accepting incarceration as a default, or an even common outcome, prosecutors must change their mindset and see it as a means of last resort, pivoting wherever possible to community-based, restorative responses to harm that address underlying needs and reduce the reach of the criminal legal system.

For example—and in response to the spread of deadly coronavirus—some prosecutors acted to limit people's contact with the criminal legal system by declining to prosecute specific charges that disproportionately impact Black people. There is no reason why these policies, which have a measurable and direct impact on people's lives, should not continue well after the worst of the pandemic has passed.

Beyond that, we cannot allow fallout from the pandemic to serve as an excuse for reverting to retrograde policies. For example, in Brooklyn, New York, District Attorney Eric Gonzalez's progressive approach to gun possession cases—which had long disproportionately impacted young men of color by subjecting them to severe mandatory minimum prison sentences—has included evidence-based diversion programming that has steadily decreased the amount of gun crime in Brooklyn each year during his first three years in office. During the COVID-19 pandemic, however, minor increases in gun crime have led police to decry the district attorney's policies and seek a return to mandatory minimum prison sentences for gun possession alone. It is up to the public to resist such fear-mongering.

And the evidence reflects that thoughtful, community-based responses will insure to everyone's benefit; study after study shows that decarceration efforts benefit local communities, particularly when social support systems are equipped to provide assistance and resources. In Los Angeles, for instance, supportive housing programs improved overall housing stability and significantly reduced reinvolvement with the criminal legal system: 86 percent of those supported by the program had no new felony convictions after 12 months.

Black Lives Matter Mural
Artists paint a massive Black Lives Matter mural outside the New York County Courthouse on July 2 in New York City. Spencer Platt/Getty

Steering people away from the criminal legal system and promoting their freedom and well-being is critical. Equally important, however, is the recognition that many people have already been caught up in the criminal legal system or targeted by punitive policies. In response, prosecutors who are willing to take bold steps to address past injustices can decline to consider a person's previous contact with the criminal legal system when making current charging or diversion decisions.

Prosecutors can model, for their peers and their partners, what it means to wield power in the interest of racial justice and create sustainable progress over the long term. They can educate themselves and future generations of prosecutors about the impact of racial bias and systemic racial injustice. And as their duty demands, they can collect, examine, and assess the evidence of inequity in order to address the systemic causes.

Contact with the criminal legal system cannot mean a death sentence. Our national reckoning with racial injustice and the pandemic provides a once in a generation opportunity to free ourselves and our communities from the destructive, painful cycle defined most acutely by the names of the people we've lost and the tragedies we've failed to prevent.

Jamila Hodge is the director of the Reshaping Prosecution Program at the Vera Institute of Justice and previously served as an assistant U.S. attorney in Washington, D.C. Lucy Lang is director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, a think tank for prosecutors and communities across the United States.

The views expressed in this article are the authors' own.