Article:  “The Case for a Presidential Task Force on 21st Century Prosecution,” Fair and Just Prosecution, 2021.

The Biden administration is facing increased pressure to make good on a campaign promise to confront racial and income-based disparities in our justice system. Much of the latest push has come from Miriam Aroni Krinsky, a former federal prosecutor, and the founder and executive director of Fair and Just Prosecution (FJP). Krinsky and the FJP released a white paper detailing the need for a review of prosecutorial practices and delineating the data-driven path to prosecutorial reform.

The FJP’s paper urges the Biden administration to capitalize on an unprecedented opportunity of bipartisan support to reduce the population of the incarcerated and emphasize rehabilitation over punishment. Prosecutorial reform is a central issue because prosecutors are the most influential actors in the American legal system. As gatekeepers of the judicial process, prosecutors determine who is charged with a criminal offense; make recommendations for bail or pretrial detention; assess which criminal charges to prosecute; decide which offenders are eligible for plea negotiations; and suggest sentence length upon conviction.

Prosecutorial power unknowingly casts prosecutors as the drivers of mass incarceration, promoting harsh and discriminatory charging practices that disproportionately impact Black, Indigenous, People of Color (BIPOC) and individuals from impoverished communities. The exponential growth in the prison population costs taxpayers billions of dollars annually in the construction and maintenance of prisons; the management of incarcerated populations; and the reduced earning potential of justice-involved persons that extends well beyond the serving of criminal sentences.

Current and former U.S. prosecutors argue against the use of the traditional, “tough-on-crime” approaches that contribute to systemic inequality and negatively impact the U.S. economy. Research indicates that incarceration is not a deterrent to crime, and our stable recidivism rate similarly proves the lack of efficacy in relying on incarceration to reduce crime; in fact, probationers are less likely to be rearrested than their incarcerated counterparts.

Reducing inmate populations, emphasizing rehabilitation over punishment and treating the accused in a manner that is equitable and equal in judicial processing is, according to the FJP, contingent upon the creation of an independent task force that can collaboratively examine the role of prosecutorial discretion and make recommendations for smarter prospective and retrospective justice.

FJP’s paper provides guidance on the structure and focus of the task force, calling for a body of experienced leaders: elected state and local prosecutors; those with lived time in the criminal justice system; survivors of crime; leaders and advocates from communities impacted by mass incarceration; civil rights leaders and attorneys; researchers; and academics. The report also offers a compelling list of research-based reforms, including the reduced use or elimination of cash bail; the diversion of suitable offenders into problem-solving courts or treatment; and the increased use of criminal record sealing. Finally, the report calls for transparency and accountability in police and prosecutorial practices.

Prosecutorial reform is an enormously complex task. Prosecutorial discretion does not occur in a vacuum; it is influenced by individual ideology, legislative restrictions, organizational culture and guidelines established by the state or federal attorney general. Reform also depends on a willingness to consider the possibility that past practices were deficient, and that change is necessary—a fact which seems to be the biggest hurdle in facilitating any change in the criminal justice system.

The FJP identified 17 specific areas for the task force to prioritize:

  • Understanding the historical legacy of the prosecutor
  • Promoting deflection, diversion and shrinking the system
  • Advancing racial and ethnic justice
  • Addressing the poverty penalty and bail reform
  • Promoting harm reduction, saving lives and drug policy reform
  • Misdemeanor justice
  • Better serving crime survivors
  • Understanding, preventing and addressing violence
  • Juvenile and young adult justice
  • Preventing officer-involved shootings and enhancing police accountability
  • Improving conditions of confinement
  • Implementing post-conviction justice, fair sentencing and sentencing review
  • Accounting for collateral consequences and promoting expungement
  • Addressing mass supervision and improving reentry
  • Envisioning success, metrics and culture change
  • Ensuring ethics, accountability and transparency
  • Propelling change and investing in transformation

While these are important areas of emphasis, each of the pillars is subjective and does not provide a mechanism to objectively assess how and when the task is considered complete. The diversity of membership in the task force also presumes that each member possesses a substantially different foundation of knowledge. Agreeing that the focal points need change is not the same as agreeing on how to facilitate that change. To determine the efficacy of improvement in any area, universal language and objective measurements are needed.

Of concern, too, is the inability of the task force to address pillars that are outside of the purview of the prosecutor’s office. For example, prosecutors play no active role in facilitating the reentry of formerly incarcerated persons. It is imperative that prosecutors understand the barriers to successful reentry when considering sentences upon revocation, but improving reentry is outside of the general scope and duty of the prosecutor’s office. Similarly, prosecutors cannot prevent officer-involved shootings. In fact, one could argue that no one can prevent an officer-involved shooting, except for the officer.

These factors notwithstanding, the proposed case plan provides a practical path for understanding, evaluating and reimagining the role of U.S. prosecutors. The primary goal is to reduce the reach of the criminal justice system by providing concrete steps to eradicate the policies and the practices of the past that contribute to mass incarceration and disproportionately impact communities of color. The white paper should act as a strategic plan for incentivizing, implementing and overseeing the progress of the newly adopted changes.

The Case for a Presidential Task Force on 21st Century Prosecution provides a research-based implementation strategy for the Biden administration to tactically advance a campaign-promised reform. Given the enormous power of prosecutors, and their responsibility to public safety, it is impossible to envision—much less achieve—a criminal justice system that ensures equity, equality and justice for all without reimagining the role of the gatekeepers to the criminal justice system. Establishing a prosecutorial task force charged with the responsibility of examining the 17 critical areas in need of reform, as presented by the FJP, is fundamental to the adoption of innovative and holistic approaches that advance the needs of contemporary society.