Prosecution & Human Dignity
The flaws in the present prosecutorial culture are perhaps exemplified best by the way that so many offices reduce individuals to titles and sentences to mere numbers. For example, some prosecutors’ offices teach their line prosecutors to refer to each defendant solely as “defendant,” which strips that person of their individuality and makes it that much easier to focus on the alleged crime rather than the person behind it. Likewise, bail and sentencing recommendations frequently manifest more as some sort of numbers game or check the box exercise than a true consideration of the life-altering restriction on life and liberty they represent. This itself is, in large part, a function of a lack of diversity within prosecutors’ offices and the relative absence of meaningful prosecutorial experience with the conditions of confinement. Even the north star of most prosecutors’ offices—victims—can get lost in the haze of the justice system, with their needs or desires sidelined when they diverge from those envisioned by well-meaning prosecutors.
To be clear, these practices did not arise out of some sort of void. For decades, politicians of all stripes, including elected prosecutors, conditioned the public to view conviction rates and sentence lengths as barometers of prosecutorial competence. Similarly, many have fallen prey to the temptation of using “tough on crime” rhetoric to score political points by demonizing everyone from individuals struggling with addiction to youths succumbing to momentary lapses in judgment. Add in a mixture of implicit and explicit racial biases, astronomical caseloads that make nuanced decision-making difficult and perverse budget incentives, and the stage becomes set for the cold, mechanical and often inequitable administration of justice.
The result is an affront to common sense as much as to moral sensibility. To begin with, it is impossible to limit punishment to a single individual. Removing an individual from the community or restricting their movement or actions within it inevitably makes it difficult or impossible to fulfill family and employment obligations. This forces innocent family, friends and employers to share the burden of criminal justice decisions. At the same time, treating someone as some sort of degenerate who is less than a fully-fledged member of the community risks becoming a self-fulfilling prophecy. When told enough times that they are irredeemable and reintegration into society is impossible, they might start to believe that. When that happens, we all lose.
Addressing these issues will take concerted steps to alter prosecutorial rhetoric, culture and decision-making. This is no easy or simple thing. It begins with small shifts in language and slowing down an often rushed and chaotic process so that prosecutors are able to connect with all relevant individuals in a case to work together on a productive outcome. It should include additional efforts to visit the jails and prisons to which prosecutors potentially send individuals as well as outreach to those parts of the community most directly affected by these decisions. It also ought to involve the more frequent use of alternatives to prosecution and incarceration such as diversion and treatment that do more than saddle an individual with a conviction or warehouse them.
Prosecutors will need help to achieve these ends. These strategies require prosecutors to approach every case with nuance, something that is not possible with the caseloads under which so many prosecutors struggle. While prosecutors can bring these down through improved charging policies, legislators must nevertheless trim unnecessary criminal laws and amend budgets to ensure that prosecutors are not required to tackle every possible societal problem and have the resources they need to address those appropriately before them. Likewise, politicians and other public figures need to tone down posturing that equates harshness with success in prosecution or otherwise attempts to reduce the job of prosecutors into the reflexive, unfeeling enforcement of the law.
There is no single method of advancing human dignity in prosecution. Indeed, it is as much about avoiding destructive thinking and harmful practices as anything else. Which is not to say it is easy. Prosecutors will always have to deal with some of the worst moments and most troubled people in our communities, often with that same community demanding quick, cathartic—but ultimately unproductive—results. What will elevate good prosecutors will be the ability to treat all those before them with dignity so that the justice system heals rather than harms and brings a community together instead of tearing pieces of it apart.