Reconciling Drug Courts, Decarceration, and Harm Reduction
For the last 30 years, the primary way in which the criminal legal system has attempted to connect people with substance use disorders to treatment is via drug courts. FJP’s new “Issues at a Glance” brief examines mounting concerns with drug courts and factors elected prosecutors should consider in assessing whether drug courts are promoting harm reduction outcomes or, instead, exacerbating cycles of incarceration for drug use.
“Prosecutors have an obligation to protect the health and safety of every member of the community, but we have been hampered by a system that looks to outdated criminal justice responses to address substance use, rather than the public health strategies we know work.”
– Philadelphia, PA District Attorney Larry Krasner
COVID-19 and Improving Conditions of Confinement
As prosecutors pursue critical decarceral strategies in response to the threat posed by COVID-19, they should simultaneously take steps to ensure that people who remain in custody receive recommended public health protections, access needed treatment and healthcare, and are afforded their full constitutional rights. FJP’s new “Issues at a Glance” brief examines how prosecutors can promote these steps in partnership with community and correctional leaders, justice system stakeholders, and public health officials, and spotlights examples of prosecutorial leadership and innovation on these issues.
“An outbreak of COVID-19 behind bars risks overwhelming our already taxed medical providers, puts incarcerated individuals at fatal risk, and endangers correctional officers and staff…. The interplay between public health and public safety has never been more apparent.”
– Berkshire Country (MA) District Attorney Andrea Harrington
COVID-19 and Youth Justice Issues
No children belong in prison – especially during a pandemic. Conditions were poor in youth correctional facilities prior to the onset of the coronavirus virus, but now young people behind bars face additional trauma, medical risk, and dangerous isolation. While significant progress has been made in reducing the number of children who are incarcerated, far too many children remain locked up. Prosecutors have a mission to promote safe and healthy communities, and that includes protecting children who come into contact with the criminal legal system. Read more about what District Attorneys have done and can do to protect young people in our latest “Issue at a Glance” brief.
“If we can safely keep kids in the community with COVID, why can’t we do it without COVID?”
– Buta Biberaj, Loudoun County (VA) Commonwealth’s Attorney
COVID-19 and the Criminal Justice System: Reducing and Avoiding Incarceration During a Pandemic
The spread of COVID-19 in prisons and jails across the US puts the health and safety of communities everywhere at risk. In this “Issues at a Glance” brief, FJP examines the important role prosecutors can play in mitigating this public health crisis by reducing jail and prison populations not only in the immediate term – when lives are at stake and the death toll is mounting – but also into the future. The brief offers concrete recommendations for how prosecutors can promote these approaches and spotlights specific examples of actions taken by elected prosecutors around the nation to protect the health and safety of all members of their community.
“We all have a responsibility to try to stem the spread of COVID-19. Releasing individuals who do not pose a danger to the public can prevent them from being exposed in prison, create a safer environment for those who remain there, and help protect our entire community during this pandemic.”
– Durham County (NC) District Attorney Satana Deberry
Lessons From Germany: Avoiding Unnecessary Incarceration and Limiting Collateral Consequences
The U.S. incarceration rate is nine times that of Germany – and we have the highest rate of incarceration in the world. Last year, Fair and Just Prosecution traveled to Germany with a group of elected U.S. prosecutors to meet with law enforcement leaders, experts, and advocates to learn how Germany achieves a low incarceration rate and limits collateral consequences of convictions, while protecting public safety and human dignity. Read more about lessons to be learned from Germany’s sensible and proven approach to incarceration in our new issue at a glance brief here.
“The number one thing I learned… — that I already knew but is driven home when you go somewhere else — is how punitive we are in the United States. We really like to punish people and we think of that almost as a virtue.”
– DURHAM county, NC DISTRICT ATTORNEY SATANA DEBERRY
Revisiting Past Extreme Sentences: Sentencing Review and Second Chances
We know that long sentences do not improve public safety, and in many cases do just the opposite. Yet, for decades in America “tough-on-crime” politics resulted in decades long sentences out of step with the rest of the world. As we envision a new criminal justice system, prosecutors have a duty to proactively revisit and address extreme sentences that people are currently serving and push for second chances. This FJP “Issues at a Glance” brief discusses the rationale for these reforms and provides recommendations for elected prosecutors to implement to seek relief in individual cases and also advance broader reforms aimed at expanding opportunities for equitable sentence reductions and second chances for people who can safely return to the community.
“I think a prosecutor has a continuing obligation to justice, past the sentencing date…We have to be willing to roll up our sleeves, look through the files of old cases, and really…compare them to our contemporary law and practice.”
– KING COUNTY (SEATTLE, WA) PROSECUTING ATTORNEY DAN SATTERBERG
Harm Reduction Responses to Drug Use
For two decades, countries like Portugal and Canada have recognized the ineffectiveness of criminal justice responses to substance use. Instead they’ve embraced harm reduction approaches that save lives while respecting the dignity of people who use drugs. It’s time for the United States and elected prosecutors to follow suit. This FJP “Issues at a Glance” brief offers an introduction to harm reduction for criminal justice leaders, highlights existing harm reduction programs, and suggests a new way forward to prevent overdoses, reduce incarceration, and ultimately save lives.
“This is a public health crisis, and… [w]e can use our discretion to ensure that the criminal justice system doesn’t punish people who need help…and we can push for solutions that are grounded in compassion and evidence.”
– Berkshire County, MA District Attorney Andrea Harrington
Young Adults in the Justice System
Research shows that young adult brains are different and the period from 18 to 24 is a critical window of opportunity for lasting change that shouldn’t be squandered. It also tells us most adolescents and young adults will age out of criminal conduct, with or without justice system intervention, and that incarceration negatively impact this natural process. This FJP “Issues at a Glance” brief offers models of reform from across the country and recommendations to help prosecutors implement proven, compassionate approaches that give young people the support they need to be productive members of our communities.
“The evidence is clear: Children and young adults are different, the justice system must do better, and prosecutors can lead the way.”
– DISTRICT OF COLUMBIA ATTORNEY GENERAL KARL RACINE
Improving Justice System Responses to Individuals with Mental Illness
Individuals with mental illness are significantly over-represented at every stage of the justice system. This FJP “Issues at a Glance” brief offers recommendations to prosecutors committed to improving responses to individuals with mental illness, increasing diversion, and reducing incarceration.
“There is a public health crisis in our nation surrounding mental health in the justice system. People’s lives hang in the balance. Our communities need their leaders to get in this fight.”
– PORTSMOUTH, VA COMMONWEALTH’S ATTORNEY STEPHANIE MORALES
There are numerous opportunities for prosecutors to reduce the number of individuals with mental illness in the criminal justice system. This companion FJP “Issues at a Glance” brief on mental health offers implementation strategies, as well as examples and practices from around the nation, that model public health responses and cross-system interventions that can avoid criminalizing mental illness.
Community Prosecution and Engagement
Community prosecution models prioritize strengthening links to the community, promoting partnerships, and encouraging the development of problem-solving strategies to enhance public health and safety. This FJP “Issues at a Glance” brief highlights key principles and important considerations for developing community engagement and outreach – practices often referred to as “community prosecution.”
“Community members should be able to see the tangible impact of the justice system on their streets and to participate more deeply in shaping criminal justice solutions.”
– Los Angeles City Attorney Mike Feuer
Though they may look different in different jurisdictions, community prosecution programs take into consideration the unique history, needs, and resources of particular neighborhoods to help address community problems and concerns. This FJP “Issues at a Glance” brief provides a snapshot of community prosecution models from around the nation and also sets forth concrete recommendations for DAs interested in developing community prosecution programs and approaches.
“If [residents are] developing a relationship that is so close that they’re looking at this person as somebody that gets problems solved, and not as a traditional prosecutor… that’s when you know the concept is working.”
– Milwaukee County (WI) District Attorney John Chisholm
Open and Early Discovery Practices
Discovery practices have a profound effect on ensuring fair case outcomes, expeditious resolution of cases, enhanced police accountability, and compliance with constitutional mandates. This FJP “Issues at a Glance” brief outlines how prosecution and defense alike benefit from open and early discovery. The brief offers a range of tools — from simple checklists to electronic Brady databases, to supervision and random audits — to ensure prosecutors share all relevant information in a timely and efficient manner, ultimately improving trust and accountability in the justice system.
“Prosecutors can have blind spots…[w]e get so convinced that the defendant is guilty. We really can’t be the architects of deciding what’s helpful to the defense and what’s not.”
– 5th Prosecutorial District (Wilmington, NC) District Attorney Benjamin David
Trust between the community and the prosecutor’s office is essential to the legitimacy and moral credibility of the justice system. This FJP “Issues at a Glance” brief discusses promising restorative justice practices and actionable strategies that have been shown to have a positive impact on building and fortifying community trust. Restorative justice seeks to repair the harm caused by an offense to victims and the community, while also advancing a deeper understanding by the individual of the consequences of his or her conduct. Read how prosecutors are using restorative justice practices as a way to better serve the community and to bolster public safety.
“I think the modern prosecutor has to recognize the humanity behind every case file.”
– King County (Seattle, WA) Prosecuting Attorney Dan Satterberg
Fines, Fees and the Poverty Penalty
Fines and fees can impose immense burdens on justice-involved individuals, their families, and the governments tasked with collecting them. Instead of advancing public safety and increasing revenue, these charges can increase the likelihood of re-arrest and cost jurisdictions far more than the revenue they bring in. This FJP “Issues at a Glance” brief details the latest research on fines and fees and suggests concrete steps prosecutors can take to address this “poverty penalty” by changing office policies and practices and advocating for legal reform.
“It is time to live up to the guarantees of due process and equal protection enshrined in our Constitution and ensure fines and fees are reasonable, proportionate, and transparent.”
– Marc Levin, Policy Director, Right on Crime
Effective “Conviction Integrity Units” (CIUs) and other internal accountability mechanisms are a key part not only of reviewing potentially wrongful convictions, but also of learning from past errors and reducing the likelihood of future problems. This FJP “Issues at a Glance” brief addresses how prosecutors can improve office culture, strengthen community trust, and achieve the highest possible integrity in case outcomes by creating effective CIUs and implementing other policies that enhance transparency and accountability. And this FJP “Statement of Principles” outlines best practices for creating and operating a CIU that identifies and corrects past injustices.
“Wrongful convictions are contrary to the very essence of our system. We make mistakes and it’s important to study those mistakes to do our jobs better.”
– 13th Judicial District (Tampa, Fl) State Attorney Andrew Warren
Prosecuting attorneys’ relationship to local law enforcement, including their response to allegations of officer misconduct, is an area of profound community concern and increasing public scrutiny. This FJP “Issues at a Glance” brief addresses how prosecuting attorneys can best ensure constitutional and legal policing in their jurisdictions and seek criminal accountability, where appropriate, for police officers who have violated the law.
“We need to be transparent and held accountable… I want to give the public the opportunity to hear from me personally why I made the decision not to prosecute the officers… and also give them the opportunity to ask any questions about the reasoning and the basis for the decision.”
– Denver (CO) District Attorney Beth McCann
Trauma-Informed Juvenile Justice
Drawing on research findings that show trauma and toxic stress harm juvenile and young adult brain development, this FJP “Issues at a Glance” brief offers recommendations for incorporating trauma-informed practices into a prosecutor’s office. Tools for prosecutors include changing office practices to avoid re-traumatization of youth, partnering with treatment service providers, and reducing secondary traumatic stress for office staff.
“We’ve tried arresting and prosecuting kids for just about everything, including minor, nonviolent first-time offenses…. It simply hasn’t worked.”
– 13th Judicial Circuit (Tampa, FL) State Attorney Andrew Warren
Research shows that court participants are more likely to comply with court orders and follow the law in the future when they perceive the court process to be fair. This FJP “Issues at a Glance” brief suggests strategies for strengthening community trust by improving the fairness of procedures that defendants and community members experience during a criminal investigation or prosecution. From simple measures such as using plain language whenever possible, to efforts aimed at reducing implicit bias, prosecutors can increase the legitimacy of their work in the eyes of the communities they serve.
“When we talk about criminal justice issues, most of the prison population looks like me…. [Y]ou all matter, your civil liberties matter. Your life matters. And we need to do a better job as prosecutors going forward to address those issues.”
– St. Louis (MO) Circuit Attorney Kim Gardner
Local prosecutors can help make communities safer and the justice system fairer by supporting the elimination of a money bail system, which penalizes defendants who cannot afford to post bond. Prosecutors should, instead, support a presumption of release where individuals present no risk of flight or danger to the community. This FJP “Issues at a Glance” brief discusses the prosecutor’s role in reforming the money bail system to reduce pretrial incarceration and its potentially counterproductive effect on public safety and recidivism.
“Harris County’s wealth-based bail system has for decades inflicted punishment on poor people before guilt has been proven, while releasing those with money into our communities even when the offenders were dangerous.”
– Harris County (Houston, TX) District Attorney Kim Ogg
Marijuana Policy Reform
Prosecutors can help reduce overly punitive responses to marijuana and other drug charges. This FJP “Issues at a Glance” brief discusses the prosecutor’s role in marijuana policy reform and provides guidance to prosecutors considering approaches that promote a more equitable justice system, save resources and avoid criminalizing individuals struggling with drug addiction. The brief includes recommendations for prosecutors’ offices based on the wide spectrum of approaches in place around the nation — from cite-and-release programs to the legalization of marijuana.
“At 107,000 cases over the last 10 years, we have spent in excess of $250 million collectively prosecuting a crime that has produced no tangible evidence of improved public safety…[T]he collateral damage to our workforce is immeasurable…we have disqualified, unnecessarily, thousands of people from greater job, housing and education opportunities by giving them a criminal record for what is in effect a minor law violation.”
– Harris County (Houston, TX) District Attorney Kim Ogg
Federal immigration law imposes additional — often severe — penalties when a noncitizen receives a criminal conviction, and federal immigration enforcement practices can have a chilling effect on crime reporting and victim engagement. This FJP “Issues at a Glance” brief discusses the prosecutor’s role in addressing federal immigration consequences and advancing strategies aimed at preserving community trust and ensuring a justice system grounded in equity and compassion.
“There’s certainly a line of argument that says, ‘Nope, we’re not going to consider all your individual circumstances, we want to treat everybody the same. But more and more, my eyes are open that treating people the same means that there isn’t a life sentence of deportation that might accompany that conviction.”
– King County (Seattle, WA) Prosecuting Attorney Dan Satterberg
Prosecutors serve as gatekeepers to the criminal justice system — they often decide who goes into the system, and who gets a second chance. This FJP “Issues at a Glance” brief offers guiding principles for implementing alternatives to incarceration and developing diversion programs, and lists a sampling of programs currently in use across the country. When tailored to a jurisdiction’s unique needs, these programs can reduce criminal justice costs, limit unnecessary individual contacts with the justice system, and reduce the potentially harmful long-term consequences of such contacts, while also enhancing public safety.
“Together we are working hard to create a balance between prosecution, prevention/intervention, and awareness, with innovative programs and initiatives inside and beyond the courthouse walls.”
– DeKalb County (Decatur, GA) District Attorney Sherry Boston