This has been a time for reexamining old assumptions and shopworn policies in criminal justice.
Just two years ago, when Rachael Rollins took over as Suffolk County district attorney and announced her office would take a new approach to handling 15 nonviolent misdemeanor offenses, opting against criminal prosecutions in most circumstances, she touched off a major-league brouhaha. Hard-liners predicted shoplifters and small-time drug dealers would have a field day — nevermind that her predecessor, Dan Conley, had also declined to prosecute many such cases.
Now Rollins can point to a comprehensive new study of the office during her tenure and Conley’s that provides some hard numbers to back up what she knew intuitively — that diversion of low-level offenders, keeping them out of the criminal justice system, can lead to better outcomes not just for them but for the community.
A win-win for public safety.
“For the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years,” according to the report, which analyzed 15 years worth of data in Suffolk County.
Furthermore, “it appears that prosecuting defendants for nonviolent misdemeanor offenses has substantial costs for those individuals without any evidence of public safety benefits.”
The study, released Monday by the National Bureau of Economic Research, provides the data — albeit for one county — that back up what other researchers have been saying for some time, that criminal prosecution of minor offenses too often puts defendants in a downward spiral, leading to job losses, difficulty finding employment, and eventually to more criminal activity.
With more than 13 million Americans charged with misdemeanor offenses each year, making up 80 percent of cases processed in this nation’s criminal justice system, the potential for making a real dent in the crime rate — and in lives — is enormous.
Rollins gave the research team, headed by Anna Harvey of New York University’s Public Safety Lab, unfettered access to Suffolk County files going back to 2004 — some 67,000 cases. Of those, 20.5 percent were not prosecuted past arraignment and about 75 percent of those prosecuted were closed without a criminal conviction.
What the study makes clear is that Rollins, of course, didn’t invent the concept of not prosecuting low-level offenses. But in the years under Conley, the practice was a bit more random, depending more on the predisposition of the assistant district attorney assigned to the case than on official office policy.
The researchers found that defendants whose charges were dropped by Conley’s proseutors were 58 percent less likely to face new criminal charges during the next two years than those who were prosecuted for similar offenses. Those not prosecuted were also more likely to avoid subsequent felony charges.
They found similar results under Rollins’s policy — and similar “social benefits” — but with the caveat that they could look at a defendant’s records only one year out.
If diversion programs can work for first-time felony defendants — and according to a 2020 study, they do — and for drug defendants, as Massachusetts has also shown — then the Suffolk results shouldn’t be a surprise.
Misdemeanor charges are too often applied unfairly — is that broken tail light and lapsed license a crime or another case of “driving while Black”? Is failing to show an ID “resisting arrest?” Is it “disorderly conduct” to resist a police order to step out of your own house? (Might want to ask Harvard’s Henry Louis Gates Jr. about that.)
Harvard Law Professor Alexandra Natapoff, whose 2018 book “Punishment Without Crime” is cited in the new study, argues that misdemeanor prosecution “makes our entire country less safe.”
Natapoff said on Twitter Monday that the new study presents “Profoundly important empirical evidence” that prosecutors like Rollins are “advancing justice and public safety” by declining to prosecute certain misdemeanors.
When Rollins first announced her office policy on misdemeanors, Michael O’Keefe, district attorney for the Cape and Islands, took the “social justice district attorney” to task in a Globe op-ed for her “grand pronouncements . . . that entire categories of crime will no longer be prosecuted.”
“This criminal justice philosophy, though well-intentioned, is flawed,” he wrote.
Well, as it turns out, not really. In fact, that philosophy and those policies should inspire more district attorneys to take another look at their own policies.
Prosecutors know they don’t pursue every misdemeanor that comes in the door. What Rollins did was codify a policy for her assistant district attorneys, focusing their attention where it needs to focus — on those who do endanger public safety — and leveling the playing field for defendants, many of whom shouldn’t be defendants at all. In doing so, she is contributing to a safer community — and a more just one.
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