The American Civil Liberties Union has always been a stalwart defender of basic human and civil rights in the United States. Recently, it has created a campaign in 24 cities across the country to reduce jail and prison populations by emphasizing voter education and mobilization. The idea is to encourage voters to remove prosecutors currently in place who have a sketchy prosecutorial record, including prosecutorial misconduct. Ultimately, they aim to achieve a fifty percent reduction in the population of jails and prisons in the country.
Prosecutors have vast discretion when it comes to charging defendants. They can drop the case before it starts, pursue a charge with a mandatory minimum sentence or something lighter, and can even decide to charge a teenager as an adult. And of course, they are the ultimate arbiter of whether or not to seek the death penalty. They can offer plea bargains, or require drug treatment instead of jail time. Prosecutors are tremendously powerful, particularly when it comes to plea deals, as that is how the bulk of criminal cases are settled.
This campaign comes at the same time as younger, more progressive prosecutors have been voted into office. Several are women, or people of color (in spite of the fact that nearly 90 percent of the country’s prosecutors are white men). And some have started changing internal policies and procedures in favor of justice and transparency. For example, Chicago’s D.A. Kim Foxx has suspended prosecutions for individuals who were caught driving with licenses that had been suspended based on financial reasons, like unpaid child support. She also released certain criminal case data from her office over the last 6 years, increasing transparency for defendants and their attorneys. In Mississippi, D.A.’s have stopped prosecuting non-violent crimes, and one has even established a prosecutorial unity to identify potential wrongful convictions.
The ACLU and other organizations, such as the Color of Change, plan to back at least a dozen different prosecutors around the country. They also aim to encourage ethical and moral lawyers to run for office, since most re-elections happen unopposed. The campaign empowers potential candidates who want to create fairer criminal justice systems, increase accountability and focus on transparency.
The initiative has a three-part strategy in order to decrease the prison population. First, it will hire new litigators to initiate at least ten lawsuits which will hold prosecutors accountable and requires changes in their practices. Next is legislative advocacy, which will support the passage of specific reform bills in ten states. Finally, the initiative intends to engage in nonpartisan efforts and conduct voter education in the significant role prosecutors play when it comes to criminal justice.
The plan does have its critics and skeptics, however. Law enforcement reports that the best way to change the system is to amend sentencing provisions or the law itself, rather than trying to elect prosecutors who simply decline to enforce the law as it stands. Skeptics believe that the public is less entranced with criminal justice than the initiative would believe: the current administration at the federal level was based on the idea of a ‘law and order’ attitude in law enforcement. Attorney General Jeff Sessions is a hardline prosecutor with significant support both in the White House and in his own party.
Yet it seems that, at least within more local elections and jurisdictions, most candidates for prosecutor are discussing reform. And for now, it does seem to be working. The number of prisoners in jail or other correctional facilities fell for the third year in a row in 2016. Unfair financial bail programs are ending, as are requirements to pay fines in full or remain in jail. But the problems still remain, particularly if defendants are released or are out on parole. Poverty and arbitrary terms and conditions for parole means many people who avoid jail time for the initial crime are put back in prison for violations of parole. Perhaps prosecutors will recognize this trend and create programs which encourage rehabilitation and reduce recidivism. Only time will tell.