Monday Morning Thoughts: Does a Prosecutor Have to Be Tough on Crime?


I found Matt Rexroad’s letter in support of DA Jeff Reisig interesting.  I asked him if he would submit it to the Vanguard, but he declined, suggesting this wasn’t the audience he wanted to reach.

Fine.  But here is the interesting comment: “It is always entertaining to me when I hear people complain that the District Attorney is being too tough on crime. That is his job. We don’t elect him to do the job of a judge or the public defender. That is what the criminal justice system is all about.”

The problem is that Matt Rexroad has fallen victim to the belief that a prosecutor is supposed to be an advocate.  Yes, we have a confrontational justice system.  The role of the defense attorney is clearly supposed to one of advocating for his client first and foremost while following the letter and spirit of the law.

The judge is supposed to be the impartial intermediary who ensures that the law is carried out, and interprets current statutes, the constitution and case law.

But the prosecutor, while certainly playing the role of advocating for the state, often loses sight of the fact that advocating for the state means seeing that justice is done, rather than attempting to “convict at all costs.”

As now-Supreme Court Justice Sonia Sotomayor once said, “My job as a prosecutor is to do justice. And justice is served when a guilty man is convicted and an innocent man is not.”

In our system, ironically, the prosecutor who has the power to decide whether to file charges, which charges to bring, and whom to charge among other things, plays the most powerful role in the system.

The complaints about the power of the prosecutors are that there is not an equitable system where the defense, under most conditions, is an equal counterbalance.

As John Terzano, President of the Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system, wrote, “[D]espite their power, prosecutors are rarely held accountable for violating their ethical obligations. This lack of accountability fosters a problematic culture that plagues prosecutors’ offices around the country and contributes to wrongful convictions.”

The problem we have seen with tough-on-crime prosecutors is not necessarily that being tough on crime is wrong – it is seeking to overcharge relatively minor crimes, it is taking shortcuts to gain convictions, it is not recognizing that some crimes are not commensurate with the sentences sought or that some people charged may be innocent of the crime.

The other problem is that there is a culture in most prosecutor’s offices that values “wins” or getting prosecution against all else.

As Radley Balko pointed out in his seminal 2013 article on prosecutorial misconduct: “[I]n a culture where racking up convictions tends to win prosecutors promotions, elevation to higher office and high-paying gigs with white-shoe law firms, civil liberties activists and advocates for criminal justice reform worry there’s no countervailing force to hold overzealous prosecutors to their ethical obligations.”

The system Mr. Rexroad envisions only works if the prosecutor is opposed by equal forces.

Instead, as Mr. Balko puts it, “one of the most powerful positions in public service — a position that carries with it the authority not only to ruin lives, but in many cases the power to end them — is one of the positions most shielded from liability and accountability. And the freedom to push ahead free of consequences has created a zealous conviction culture.”

There is an additional problem.  This county has supported many of the same criminal justice system reforms that the current DA has opposed.

The ACLU last December found that Yolo County was not an outlier here.  Their research found that “tough-on-crime prosecutors are out of step with public views.”

The vast majority of those surveyed believed “it was important for their prosecutor to prioritize alternatives to incarceration.”

However, the ACLU also demonstrates why “tough-on-crime” prosecutors win repeatedly.  They found: “Many voters simply know too little about who their local prosecutor is or what they are up to. Once armed with that information, three-quarters of voters say their prosecutor is ‘very important’ and that they would vote for a candidate committed to reform.”

Does this matter?  A 2016 interview with Fordham Law Professor John Pfaff showed that when prosecutors did not agree with criminal justice reforms they attempted to find ways around them.

An Urban Institute report analyzed South Dakota’s criminal justice reforms and found that prosecutors circumvented these reforms by charging crimes that were eligible for lengthy sentences.

“They noticed that DAs actually started increasing their charging in an effort to get around reform,” Professor Pfaff said.

“There is some evidence that DAs will, in the presence of reform laws, try to figure out ways” around those reforms, Pfaff said. “They often have the ability to find ways to circumvent efforts at reform if they really want to.”

We have seen this in Yolo County where Prop. 47, opposed by DA Jeff Reisig, has precluded the DA’s office from charging simple possession as a felony.  So, often they have tried to circumvent Prop. 47 by charging with intent to sell.

As Mr. Pfaff points out, DAs “still have more than enough authority to prosecute offenders as they see fit.

“They remain the only actor who is subject to almost no regulation at all,” Professor Pfaff said. “They have tremendous amounts of power. In states without sentencing guidelines, there are no rules about what sort of sentences they can impose. They can choose who gets charged, and who doesn’t, with no review. They can choose what charges to file.”

Slate magazine points out, paraphrasing, “If we are serious about reducing the nation’s sky-high incarceration rate, it can only happen if actors at the local level, especially prosecutors, can be convinced or forced to be less aggressive in the charges they pursue.”

In 2016, the New York Times published a key story that identifies the driving forces of mass incarceration in America: “overzealous local prosecutors and judges in conservative rural counties who continue to believe that throwing people in prison for drugs is a good idea.”

Here is a key snippet:

“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.”

He added:  “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”

Once again, this quote underscores the power and autonomy of county prosecutors – and the one way to change the system is by voting.

The good news is that Yolo County has a choice this year between the status quo and hardline prosecution policies of the incumbent, and the reform-minded views of his challenger.  The voters can then decide which direction they want to go.

—David M. Greenwald reporting


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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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7 Comments

  1. Tia Will

    “It is always entertaining to me when I hear people complain that the District Attorney is being too tough on crime. That is his job. ”

    This was a shocking statement to me in that it is such a diametrically different perspective of what a prosecutors job is from mine. I see the prosecutor as one individual in a system designed to ensure community safety and justice. His job is not to be “tough on crime”. Indeed, this job does not even exist. The prosecutors job is to evaluate evidence obtained usually from the police and to see what charges are most appropriate for the evidence presented. It is not to see how long he can keep someone between bars. The job is then to ensure that his partner in assuring that justice is done, the defendants attorney has all evidence available. It is then to ensure that his team factually presents all of the facts that are believed pertinent to why the accused should be convicted. It is to ensure that those who are factually guilty are convicted of the actual crime committed, not some series of charges designed to get a longer sentence, nor to leverage a confession to lesser crimes from the accused.

    Fundamentally do we want our judicial system to be one of community protection in which even within the adversarial framework, all aspects are still working towards the goal of justice? Or do we really want a system composed of teams with a win or lose at all costs mentality operating on a tilted playing field?

  2. Jeff M

    Most people convicted of crime (except for white collar crimes) are victims of a totally unfair system.  It is likely that they have had a rotten childhood and would be reformed if we would just increases tax rates for the wealthy to use the money to hire more government employee that would provide them much needed help.  But until then we should stop being so harsh in our law enforcement and punishment because frankly, it just isn’t fair.

  3. Tia Will

    Jeff

    Let’s get back to the basic question. What do you see as the job of a prosecutor? Matt sees it as being “tough on crime”. I see it as appropriate charging and presentation of evidence in order to achieve a just outcome protective of both community and individual rights. How do you see it ?

    1. Jeff M

      I think all DAs should be weak on crime and employ the use of listening, empathy understanding and hugs as an alternative to taking a position that the community needs to be safe from criminals and hence criminals need to be prosecuted to the full extent of the law.  And for those DAs that disagree and decide that their actual job is to prosecute criminals to the full extent of the law, I think they should be sanctioned for ever using the words “tough on crime” because it has a triggering effect on certain people more sensitive to the victim state of the criminal.

  4. Alan Miller

    he declined, suggesting this wasn’t the audience he wanted to reach.

    Sure would be interesting to ask him to define the audience he believed he wasn’t interested in reaching.

    1. Ken A

      I’m guessing that he does not want to take to time to submit something to a blog that many think is read primarily by people who “think all DAs should be weak on crime and employ the use of listening, empathy understanding and hugs as an alternative to taking a position that the community needs”…

      1. Alan Miller

        Because one only needs to convince those who already are voting for the person you are endorsing, so why try to convince those who may vote otherwise?

        Methinks there is a logical flaw in the strategy.

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