Prosecutors Need to Take the Lead in Reforming Prisons – By Lucy Lang (Executive director of the Institute for Innovation in Prosecution) / Aug 27 2019
Attorneys on the front lines of the criminal-justice system should be pressing for a drastically different model of incarceration.
More than a decade into my career as an assistant district attorney in Manhattan, I investigated a murder on upper Broadway, in which two masked men opened fire in a busy street, shooting four people nonfatally and point-blank murdering a fifth. Over the course of an 18-month investigation and a six-week jury trial, I spent countless hours with the heartbroken mother of the murdered young man to ensure that the killers—two men in their 20s—were held accountable. Jurors had tears in their eyes when they delivered guilty verdicts against both defendants. For the murdered young man and his bereaved mother, a measure of justice had been achieved.
I called the victim’s mother the morning after the verdict, and when I asked her how she was, she replied, “I slept all night for the first time since my son was killed. But when I woke up, all I could think about were the mothers of those two young men.”
My years of prosecuting violent street crime and working with crime survivors and their families had deeply sensitized me to the devastating impact of violent crime on individuals and communities. In fact, not so long ago, it was crime victims who were the forgotten ones in the criminal-justice system. But this mother’s astounding display of empathy made me question whether I had given adequate thought to the impact of incarceration on individuals and, in turn, affected communities. I had focused on crime, but had I thought enough about punishment? I was myself the mother of two young children. If a mother could find compassion for the men who killed her son, then surely I could too.
This desire to understand the experiences of people I had prosecuted led me to create a college class that would allow prosecutors to study alongside incarcerated students. The class, created in partnership with the Manhattan District Attorney’s Office, the New York State Department of Corrections, and the Columbia University Center for Justice, centered on the lived experiences of the students and readings about justice, violence, punishment, and race. For the final assignment, students presented jointly crafted policy proposals to local lawmakers. Now in its third year, this class is being replicated in other jurisdictions, and is significantly changing the relationship between prosecutors and the communities we are sworn to serve. My students have convinced me that criminal-justice reform must prioritize prison reform, and that prosecutors have a critical role to play in that project.
One of my students told his classmates and me about his arrival at state prison. He spoke about being stripped and shaved, his body searched inside and out, and being given a seven-digit number to replace his name for the duration of his half decade in prison. He told us about experiencing abuse at the hands of guards and fellow incarcerated men, and about inflicting violence on others. This student—brilliant, warm, and thoughtful in the sterile prison block we called a classroom—was in prison because he had shot and nearly killed another young man. At least at this moment in history, very few prosecutors’ offices would consider a non-incarceratory sentence for his crime. Surely, though, holding him accountable for his crime need not include dehumanizing or abusing him. As long as it does, prosecutors and judges cannot possibly claim they are able to determine how much time in prison is appropriate. No amount of prison time is appropriate if the conditions are inconsistent with our values.
While the criminal-justice system, nationally and locally, has undergone significant reforms in recent years, the system requires far more extensive change. Reform-minded prosecutors in jurisdictions across the country are working to tailor responses to crime to address its underlying causes and reduce our reliance on prisons while still encouraging accountability for those who cause harm. They are looking to public-health and harm-reduction models as they try to keep many people out of prison and to identify ways to carefully tailor the appropriate amount of prison time for others.
It is not enough, though, for prosecutors to decline prosecution of low-level offenses and to create alternatives to incarceration for appropriate cases. These work-arounds are important, but the majority of incarcerated Americans are imprisoned for crimes of violence. Simply diverting nonviolent offenders and reducing sentence lengths will not solve mass incarceration. And the use of these increasingly politically popular strategies for shrinking the footprint of the criminal-justice system ought not delay addressing the unconscionable state of American prisons.
A galling 56-page Justice Department report released this spring detailed the horrendous conditions of Alabama’s state prison system. The state was found to be “deliberately indifferent to the harm or serious risk of harm” inflicted by instances of rape, murder, suicide, and dehumanizing treatment in prisons, which reflect “a pattern or practice” of violating prisoners’ Eighth Amendment right to be free of cruel or unusual punishment. Virtually every state in this country has comparably horrific stories from within its prisons. Inhumane conditions for incarcerated citizens—the vast majority of whom ultimately return to their communities—render them less able to productively function and more likely to engage in criminogenic behaviors both inside prison and upon release. This is unacceptable, and American prosecutors, who are on the front line of the criminal-justice system, should and must call for a drastically different model from local, state, and federal departments of corrections.
In my own career, I prosecuted cases in which people were sent to prison for the harms they caused, many for truly egregious crimes. Not one of those people deserved to be treated inhumanely, excessively, or with cruelty during their sentence. I believe that view is shared by most American prosecutors—each of whom swore an oath to support the constitutions of the United States and the state in which they serve, and to faithfully discharge the duties of their office. The fulfillment of those duties relies on confidence in the humane and just operations of the other mechanisms of the criminal-justice system—including departments of corrections.
In many ways, assistant district attorneys are like emergency-room doctors, who use a combination of their expertise and the resources at their disposal to determine which sick patients can be sent home, which patients will be medicated and how, and ultimately who will be admitted to the hospital. Although in that sense prosecutors are one of the primary consumers of the prison system, the siloed nature of the criminal-justice system allows them to deny any responsibility for the conditions of the carceral sanctions on which they regularly rely.
The responsibility that doctors feel for the long-term impact of their professional decisions both on their patients and on public health writ large should be instructive: No doctor would knowingly admit a patient to a facility in which she knew that the patient’s condition would unquestionably worsen, and that the patient would, in fact, likely contract other diseases. Beyond that, a doctor would surely not send a patient to a place that she knew would cause a condition that would undermine public health upon the patient’s release. Indeed, such a medical facility would ultimately be shut down. Prosecutors need to think similarly about the long-term effects of the outcomes of their cases.
Prosecutors are responsible for the safety of everyone within their jurisdictions, including everyone who is incarcerated in, or employed by, a prison. Mindful of that, the Bronx district attorney’s Rikers Unit dedicates specialized training and resources to the investigation and prosecution of crimes by and against incarcerated people and employees alike within the jails of that infamous island. Other jurisdictions that contain jails and prisons should do the same.
Of course, the majority of people sentenced to prison serve their time in facilities far away from where their crime was committed. This distance from home, family, and community is part of what makes it so difficult to maintain the relationships necessary for success upon release. And part of reimagining prisons should include prioritizing proximity to home in order to facilitate the bonds that are vital to human thriving. While prosecutors often do not have jurisdiction over the places to which people who commit crimes in their communities are sent, they would nonetheless be well served to bear in mind that those people will usually go home to their jurisdictions. The conditions to which people are subjected, even outside the county lines in which they were prosecuted, should be of vital concern to the relevant prosecuting office.
That’s why prosecutors should create Civil Rights Enforcement Units, just as many have created Alternatives to Incarceration Units and Conviction Integrity Bureaus. Such units should focus on the development and maintenance of humane prison conditions, including advocating for the prisons on which they rely to implement trauma-informed training borrowed from medical and social-work institutions, designed to encourage prison staff to treat residents with dignity and to create a culture of mutual respect.
Such units would serve as liaisons with departments of corrections, state attorneys general, and other relevant agencies to break down the silos that have enabled modern American prisons to damage their residents and employees alike for far too long, and thereby perpetuate the cycles of violence in our communities. These units could lobby state legislatures to reform conditions, assist in allocating resources to prison programs and education, and communicate with parole and probation departments. And, finally, they could do the important work of educating prosecutors about the realities of the prison system, so that every time a prosecutor recommends a jail or prison sentence, she does so with full knowledge of what that sentence is likely to entail.
Prosecutors are, of course, neither solely responsible for nor alone capable of solving the civil-rights crisis of mass incarceration. Judges, police officers, defense attorneys, corrections officers, community advocates, and others have all contributed to the steep increase in the number of people incarcerated and under correctional supervision in the United States during the latter part of the 20th century. Each of these groups must step up to identify solutions. And there will always be some people who cannot appropriately and safely remain in the community after committing an offense. But prison must not inflict undue suffering.
I have worked closely with many committed public servants who serve as corrections officials, many of whom share the same feelings of helplessness and paralysis that I did as a prosecutor—the system is too big and requires too much coordination with other agencies for any one person to fix. Eliminating the web of dysfunctional systems that constitutes our carceral state will be a Herculean task. But those of us whose roles in the system subject others to its vagaries should see reducing the length of sentences and eliminating inhumane conditions as an extension of the oath of office. Alternative models in Europe and Connecticut’s TRUE program show that it’s possible to focus not just on incapacitating people, but also on treating people with dignity and equipping them to succeed upon release.
Everyone who takes the oath of a prosecutor’s office in this country should come to work feeling the moral weight of our unacceptable prison conditions. District attorneys can profoundly transform the criminal-justice system if they recognize their own role in perpetuating the harms of prison and commit to fixing American prisons. Prosecutors should proactively employ their considerable power to investigate and prosecute abuse, other criminal conduct, and civil-rights violations behind bars, and use their bully pulpits to speak out loudly in favor of a drastically different prison model. Prosecutors can promote long-term public safety and accountability, while also manifesting the empathy that has been too long absent in our system. The integrity of the system depends on it.
