Celebrating 10 Years by Strategizing with the Best

By: Nicole Kardell

How do you celebrate ten years of defending people against a criminal justice system that plays with a stacked deck? Bring in a renowned journalist and legal commentator to talk problems and solutions. Emily Bazelon, a staff writer at New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School, kicked off Ifrah Law’s Ten-Year Anniversary with an engaging talk on criminal prosecutions. Bazelon recently published the New York Times Best Seller, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, which served as the basis of her talk.

11 out of 11 Ifrah attorneys agree: Bazelon’s Charged is an informative and engaging commentary on the challenges that criminal defendants face in a criminal justice system where prosecutors have the upper hand. The book walks readers through the tales of two young individuals wending their way through the criminal justice system. Their stories are compelling. And they highlight just how terribly unpredictable and unfair the American system can be. The book interweaves these stories with informative research and commentary, spanning U.S. and foreign jurisdictions. For the optimists and activists out there, Bazelon also offers a number of suggestions on how we can (and are) addressing problems.

It comes down to prosecutorial discretion. Bazelon told us that one of her main inspirations for Charged was realizing that a person’s fate could be determined by which prosecutor’s desk his or her file landed on. The idea that prosecutors could wield so much power, she noted, is breathtaking. It has caused “disastrous results for millions of people churning through the criminal justice system.” It is breathtaking, especially when you consider that district attorneys’ offices often focus more on their conviction rates than on local crime rates.

DA’s office goals can skew the perspective of prosecutors. Prosecutors are rewarded for being tough, for charging crimes, for obtaining convictions. And in the name of the game, attorneys who are motivated to charge crimes and to get convictions learn how to leverage charges in their plea bargain negotiations. Too often, a wholistic approach – on the nature of the crime, the risk of the individual to society, alternatives to help the individual from committing future crimes– is not a part of the prosecutor’s equation. Bazelon asserted that the “power of the prosecutor” is the missing piece to explain why incarceration rates have exploded in recent decades.

Where there’s a will, there’s a way. However, all hope is not lost. Even though the system seems stacked against the criminal defendant, there are ways to address the problem of prosecutorial overzealousness. Bazelon touched upon developments to help fix the system. There is a movement to elect progressive prosecutors and to change the assumption that “tough on crime” is the DA’s goal. Bazelon noted that, from 2015 forward, the message in elections is starting to change. With outside sources funding local elections, several jurisdictions have voted in prosecutors motivated to change prosecutorial goals. This includes Larry Krasner, who became Philadelphia’s DA in 2017, and Eric Gonzalez who became the first Latino DA in New York (Brooklyn) also in 2017.

The idea of changing prosecutors’ assumptions one office and one election at a time may seem tedious. But it also sounds like a clean and effective approach. Moreover, there’s always critical mass to help things along. People across the political spectrum are moving toward fairness over toughness. The hotly contested battle over the Queen’s DA office (that just ended) is proof that tides can change and the dialogue can move toward criminal justice reform. While she was not victorious, a young public defender, Tiffany Cabán, nearly won the vote to become Queen’s DA, in spite of her opponent’s strong establishment ties and support.

But changing out DA’s is not the exclusive solution to criminal justice problems that Bazelon suggested to us and that she wrote about in Charged. She has put forth a number of ideas (stated as “principles”) that could help reform-minded prosecutors and those advocating for change within the system. These include focusing on diversion programs, removing “leverage” as a tactic in the plea bargain process, and promoting restorative justice. Charged provides both incentives to address systemic problems in criminal justice and a road map for change. Always on the lookout for new ways to approach our work and to effectively represent our clients, we enjoyed reading and discussing Bazelon’s observations and principles. Whether layman or lawyer, we encourage you to do the same.