The true role of the district attorney
There has been more attention paid to district attorney elections across the country than in years past due to voter education campaigns by the American Civil Liberties Union, and George Soros, a funder of left wing causes, who has supported “social justice candidates” to seek election to these positions. One of the selling points in pushing the ‘social justice district attorney’ agenda is how important the district attorney is in the community. That is usually accompanied by apocryphal claims of people being warehoused in prison for small amounts of drugs.
The social justice district attorney candidate makes grand pronouncements, and, as here in Boston, proclaims that entire categories of crime will no longer be prosecuted. This is done, it’s claimed, to redress inequities in the demographics of who is in jail or prison.
This criminal justice philosophy, though well intentioned, is flawed in several respects.
First, district attorneys do not make laws. That is the job of the Legislature. It is true that district attorneys have the power of nolle prosequi — that is, to end a prosecution in the interests of justice or not to prosecute a case at all for the same reason. However, those decisions are made based on the facts and circumstances of an individual case. A district attorney does not have the power to nullify an entire class of criminal conduct. That is the sole prerogative of our Legislature. The idea that we should exempt groups of people from having to obey the law is an insult to them and a destructive form of pandering, because it suggests that these people are lesser beings than those we expect to obey the law.
A second flaw is the suggestion that the criminal justice system in general and district attorneys in particular are somehow to blame for demographic inequities in the incarcerated population. This ignores the reality that the criminal justice system is reactive not proactive. It deals with those who are brought to it. And those who are brought to it are alleged to have committed a crime.
The social determinants that lead to the commission of crime are complex. Yet the criminal justice system, the repository of society’s failures, becomes an easy target. It’s harder to blame, for example, the disintegration of the family, a lack of respect for discipline and education, and the glorification in some communities of a culture that celebrates disrespectful language and misogyny under the guise of art. I suspect that these factors are more influential regarding who is in jail or prison than an inert criminal justice system.
I am a prosecutor with 36 years of experience. I have seen various attempts at systemic reform over the years, all of it well intentioned and some of it positive. But the agenda of the social justice district attorney will result in a deterioration of public safety and quality of life, particularly in urban centers.
District attorneys should pursue justice for their communities without any predetermined agenda. I have tried to teach the prosecutors who have worked for me over the years that there is a difference between human frailty and genuine evil and to act accordingly in the disposition of their cases.
Virtually every district attorney’s office runs diversion programs to keep young people out of court. They also run drug courts, with an emphasis on rehabilitation, and mental health programs to deal with those with mental health issues who are constantly coming to court, with an emphasis of reconnecting them to their mental health provider. I run a truancy program to keep kids in school. We have been doing these things since long before they became fashionable. That social justice candidates talk out these things as if they invented them is disingenuous at best.
All these programs are our attempt to act in loco parentis for the dysfunctional members of society, and we do it willingly. But it raises the question: Why do we have to do it? We are filling a void that used to be filled by parents and churches. But our primary function is the prosecution of the offenses the Legislature has seen fit to make crimes. That is our job, and we do it quietly and without fanfare.
I am concerned that the attention paid to these social justice district attorneys without another voice being heard is giving the public an inaccurate picture of what a district attorney is and should be.
The fact that Massachusetts is 50th in the nation in the rate of incarceration speaks to the work of the Massachusetts district attorneys. While we have fewer people in prison, we have the right people there. After all, our primary job is the protection of the public.
To be sure, there are demographic differences among the incarcerated population. The single biggest factor in determining the sentence a defendant receives is the defendant’s prior criminal history. So when you hear that a person of one demographic receives a different sentence than a person from another demographic for the same crime, the defendant’s criminal history is often the reason. There are other variables as well, such as the severity of the offense itself. This is why virtually all crimes have a range of sentences that can be imposed by the court.
So my respectful suggestion to those espousing a social justice agenda is to work in the community to prevent the commission of crime in the first place. Leave the prosecution of crime to professional prosecutors. This would be more beneficial to the community, particularly the hard-working members of it who are trying to raise and educate their children in a safe environment. This would be real social justice.
Michael D. O’Keefe is district attorney for the Cape and Islands.