And they both get a share of the blame.
The Baker administration overstepped when it took the unusual step of publicly criticizing a local prosecutor — calling her out, in a letter delivered to Rollins and the media on the same day, for declining to prosecute certain low-level crimes.
And while Rollins had every right to push back, she cheapened her defense when she suggested that Baker’s son received favorable treatment in the criminal justice system.
But whatever its excesses, the headline-grabbing tussle will be worthwhile if it prompts a deeper conversation about how, exactly, we should execute on criminal justice reform in this moment of much-needed change.
The fight is useful, in part, because it focuses public attention on one of the most important, and least appreciated, dynamics in the criminal justice system: the enormous power of the prosecutor.
It’s prosecutors who decide what to charge — or whether to charge at all. And national data show they grew far more aggressive in the 1990s and 2000s, charging 2 in 3 arrestees with felonies where they used to charge just 1 in 3.
That’s played no small part in swelling an American prison population that’s larger than any other. Even Massachusetts, which has a low incarceration rate by US standards, has more prisoners per capita than Iran, Colombia, Kuwait, and almost every other nation on earth. Racial disparities in the justice system mean that minority communities bear the brunt of America’s excessive sentencing practices.
Rollins is part of a new wave of prosecutors who campaigned on cutting the prison population — and that is, undoubtedly, what is required. The human toll is enormous and the country spends some $80 billion per year on incarceration.
The question is, how to get there?
Rollins’s approach, laid out during the campaign and detailed in a recent memo, is not as radical as it might sound. District attorneys routinely decline to prosecute low-level offenses like shoplifting, trespassing, and disturbing the peace. What Rollins has done is put the policy in writing.
There are legitimate concerns: Do we really want to broadcast the idea that you can shoplift without consequence? But it’s important to understand that the memo doesn’t lay down hard-and-fast rules; Rollins spells out specific exceptions in a lengthy appendix and gives assistant district attorneys broad discretion to go to their superiors for permission to prosecute.
What she’s done is set the tone for her office, erring on the side of keeping low-level offenders out of prison — and sparing them the criminal records that make it difficult to land housing, employment, and everything they’ll need to build productive lives. And that’s entirely appropriate.
The trick, here — as in all district attorneys’ offices — is making the case-by-case adjustments that justice demands. And the Baker administration, in the letter that kicked off the controversy, points to several instances where it worries that an ill-considered application of Rollins’s new policies could lead to problems.
The district attorney, for instance, says she wants to cut back on prosecution for driving with a suspended license — noting that many low-income people have trouble getting a suspended license reinstated because they can’t afford a fine or fee. But the administration fears the new policy could wind up giving a free pass to a totally different, less sympathetic group of people: drivers who refuse a breathalyzer test, have their licenses suspended, and continue to drive.
The administration also raises concerns about Rollins loosening restrictions on pre-trial release and declining to prosecute people arrested for possession of drugs with intent to distribute; here, as with suspended licenses, the DA generally has it right. Jailing low-level dealers — many of them addicts themselves — does almost nothing to cut into the drug trade or put the offenders on the path to better lives. But there are certain cases that should be prosecuted.
All of this is worthy of debate. And if we really want to reduce our prison population, there will be far more difficult conversations to come. Almost half of prisoners are doing time for violent offenses like murder and robbery, and we’ll never substantially reduce our prison population unless we’re willing to release more of these serious offenders earlier.
Talking about this — all of this — can be difficult. It can get ugly fast, which is why officials like Baker and Rollins have a responsibility to be careful in their rhetoric. But it’s a talk we’ve got to have.