With the goal of reimagining the role of prosecutors within communities, the Institute for Innovation in Prosecution (IIP), hosted its first public program for the Executive Session on The Role of the Prosecutor on April 11, 2019. Karol V. Mason, President of John Jay College, began by giving the audience a brief overview of IIP and its mission. “The Institute for Innovation in Prosecution is a national platform that brings together prosecutors, policy experts, and the communities they serve to promote data-driven strategies, cutting-edge scholarship and innovative thinking—and that’s really true when you look at the products they put out,” said Mason. “IIP is dedicated to criminal justice that promotes community-centric standards for safety, fairness, and dignity.” Mason then introduced the day’s special speaker and inaugural lecturer for the Executive Session, Rachel Barkow, Vice Dean and Segal Family Professor of Regulatory Law and Police, NYU Law School and Faculty Director of the Center on the Administration of Criminal Law.

Providing a brief outline of her new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, Barkow began with a notion that in order to make a meaningful change in reducing mass incarceration, the system that makes criminal justice decisions needs to change. “If the goal of our criminal law policies is to promote public safety, then we are not doing a very good job at it,” said Barkow. “The reason is because we are setting those policies up without really thinking about how effective they are.” Instead, Barkow suggests that the policies are a product of populism, and political and emotional impulses. “If the public gets upset or fearful about something that they see or hear about on the news, politicians feel a need to respond to it quickly by coming up with a new policy. This policy usually ends up making the public less safe in the long term, as it takes away resources—money or personnel—from things that can better serve the public.”

Citing pre-trial detention as an example of such a policy, Barkow notes that the public’s intuition is to lock up those that commit crimes to not only keep them off the street, but to keep the community safe. This “need” for mass incarceration is then reinforced by news reports of the crimes committed by the person who is out on bail or released under supervision. “A person not being detained is always portrayed as a failure of the system. But what we see is that the people, who are in pre-trial detention, live on the margins. Spending a couple of days in pre-trial detention means that the person who commits a crime will probably lose their job, lose childcare arrangements, or lose custody of their children. It’s a devastating list of consequences. And studies show that those in pre-trial detention are actually more likely to commit crime again.”

One way to influence policy change is to make institutional changes that will yield better outcomes. “The institutional changes I’m suggesting are structural changes that will last and can’t be easily changed when a new elected prosecutor takes over,” said Barkow. “The first bucket of ideas I have requires prosecutors to stay in their lane and think about what they know really well. It is reasonable to ask why prosecutors are involved in policy decisions—such as pre-trial detention, parole or clemency—given their conflict of interest. So prosecutors should remove themselves from areas where they bring no expertise and that conflict of interest exists.” She continued, “It will also be helpful to think about ways to cap the resources prosecutors can use. For example, a state prison is free for a local prosecutor, so they can send as many people to state prison as they want. There also needs to be an internal office structure where senior prosecutors can screen cases at the outset because they have a better sense of the range of cases and can determine which ones require a longer sentence, meaning a better outcome.”

The key, says Barkow is to elect prosecutors that will take stock of what’s happening in the community as well as in jails and prisons. “If the only time you hear from your local prosecutor is related to longer sentences or the fear of losing pre-trial detention, then that prosecutor is in it for professional interests and not the larger goal of public safety. Those are some of the issues that should be emphasized and looked at in trying to figure out if a prosecutor is really trying to increase public safety, or just trying to progress their career.”

Following her lecture, Barkow joined a panel of experts to discuss the challenges and future of prosecution. Moderated by Chris Stone, former President of the Open Society Foundations, the panel tackled the role of politics in mass incarceration. Panelist Sherry Boston, elected District Attorney in Dekalb County, Georgia, said, “What we are seeing is that when you challenge what the public perceives as the norm, political pressure influences and guides the conversation. So, it’s very difficult for an elected prosecutor to figure out how to put in reform that is good for the community, when it’s not aligned with what the political figures in the community want.”

Stone then turned the question over to Stanley Richards, Executive Vice President of Fortune Society. “I often think of how we got to the place we’re at when it comes to mass incarceration. It’s the cases that make the news and generate the energy, it’s the politicians who said to the hardest hit communities, ‘We are going to make your community safe by locking people up.’ So there’s this political energy that got us to this place and what it’s really going to take in order for things to change is boldness from our prosecutors,” said Richards. “They’re going to have to stand strong in moments where there’s going to be push back from the police, and push back from people on the opposite side of the political aisle. But if you stand in fairness and a vision of accountability, then the system can progress forward and the change can start happening now.”