By Danielle Silva
On Feb. 7, 2020, UC Hastings’s Symposium “Progressive Prosecution and the Carceral State” aimed to talk about the current movement of reforming prosecutorial procedures, hoping to address issues such as mass incarceration and other inequalities in the criminal justice system.
The recording below is from the “Progressive Prosecution Through the Lens of Practitioners” panel which featured SF DA Chesa Boudin, State’s Attorney for Baltimore City Marilyn Mosby, Suffolk County DA Rachael Rollins, and United States Attorney, Eastern District of California, McGregor “Greg” Scott.
The panel began with each panelist sharing their viewpoints on the reforms attributed to the progressive prosecution movement. Scott’s introductory speech, the last of the four, included his disagreements with the movement and statistics of violent crime and homicides rates of Baltimore City and Philadelphia. His response received backlash from the other three panelists and other speakers throughout the event.
The clip below starts with Scott’s introductory speech and ends with a second response from Boudin.
Listen here to the full exchange
MCGREGOR “GREG” SCOTT
“Well, I find myself in the very unenviable position of following those three very eloquent, very passionate, very forthright speakers. I did want to say at the outset that I appreciate your introduction of us as rockstars, because I can assure you that anybody who knows what my grade was in Professor Levine’s Tort Class would never have ever described me as a legal rockstar.
“I really want to thank Hastings and the students who put this together. I am very grateful to you; it is a wonderful dialogue, a wonderful discussion of panels, speakers that you presented here today.
“I want to be very forthright and say that I am here to be the contrarian and I recognize that and I embrace that. However, I think of myself as a progressive prosecutor as well. My definition may be different but I see my role in very much the same way. I get up every day and try to make the criminal justice system a better place, a more just place, a more fair place for everybody in this country recognizing that it’s not perfect but we can work together to make it better in those ways.
“When I hire new lawyers and they come into my office, I sit down with them. I spend 10 or 15 minutes with them and I sort of explain, ‘These are my rules of the road, because you are acting in my name as a United States Attorney – when you’re in court and when you’re filing briefs with the court.’
“And the number one rule that I tell them, and I repeat it on a recurring basis, ‘We are here to do the right thing for the right reasons.’ And that is the mantra and the theme of what we do every day in the United States Attorney’s Office.”
“I’m going to agree with Chesa right out of the box – we need more mental health treatment, we need more drug treatment. I have been a prosecutor on and off for the better part of 30 years and this drug thing is destroying this country and we have got to do a better job of getting treatment to people who genuinely want. We have to do a better job of providing mental treatment to those who need it and will do it.
“The problem on the prosecutor’s side is all too often that mentally ill person does something, harms someone and then it lands on our desk and our job is to protect the communities I’m going to talk about here in just a minute and not necessarily that individual.
“In the United States Attorney’s Office, we fully support the three reentry courts which are in existence in our district: one in Sacramento, one in Fresno, one in Bakersfield. And, in addition to that, the federal bureau prisons have what they call regional relocation centers – halfway houses, is what they are, so that people can get out of prisons earlier and live at a halfway house. We have not had one in Sacramento in 25 years because of the NIMBY thing.
“Right now, I am working directly, hand in hand, with an African American member of Sacramento City Council to site a halfway house in Sacramento because we have got to do a better job of rehabilitating and helping people transition back into society so they don’t just become another statistic on recidivism rates. So I see myself as a progressive prosecutor.
“We also fully support what we refer to as the better choices courts – it’s pre-conviction, pre-trial but they’re out and we help them to have more structure around their lives so they don’t commit further crimes or do other things when they’re out of custody. We also support a mental health court in Fresno. We support the Veterans Court in Fresno.
“Another aspect of what I believe to be progressive prosecutor, in my definition, is to actively reach out to historically underprivileged communities in our district. And I have been to more mosques, synagogues, and temples than I can count in the last two years, extending the hand of friendship, cooperation and understanding to those communities.
“My office sponsors what we refer to as the Hate Crimes Task Force which was established in 1999. 1999 is referred to in Sacramento as the ‘Summer of Hate.’ There were two white brothers by the name of Williams who committed arsons in three Jewish synagogues, a woman’s reproductive clinic, and then executed – and I don’t use that word lightly – a homosexual couple in their bed in the middle of the night in my county, in Shasta county, where I was elected DA. Out of that came the Hate Crimes Task Force, which my office sponsors to this day. Once a quarter, we bring all those groups together and we talk about issues. In fact, we had one just last week – talked about school shootings and what we’ll do to work better. So we are progressive in that way.
“We very actively reach out in the community to try to educate on opioids, the number one cause of death in the United States, over 70 thousand Americans over the last several years dead because of opioids. We also are very actively going into the schools to work with parents and students to protect young people on the internet because there is a whole world of internet sexual exploitation of children that’s going on out there that would just shock you if we talk about some of the details around those cases.
“All that having been said, I respectfully disagree with much of what is being advocated by the, what is widely viewed as the prosecution movement in the country for four reasons. Number one, in many ways, it usurps the constitutional role of the legislative branch in government. Two, there’s a fundamental misunderstanding of the role of the county prosecutor. Three, many times in jurisdictions with progressive prosecutors, the violent crime rates have gone up. And four, all too often, victims are forgotten.
“John Adams famously said, ‘We have a government of laws, not of men.’ All too often today, in many of these jurisdictions, we have inverted that phrase and now we have a government of men and women and not a government of laws. Let’s go back to the basics. We have three branches of government – the legislation legislates, the judiciary interprets, and the executive enforces. So when prosecutors at the county level publically announce that they are going to cease prosecuting entire categories of crimes, they have usurped the role of the legislator and that’s frankly not a good idea for the long term of this country because next time there may be somebody else who comes into that office and flips it right back again. It’s not good for the long term health of the nation.
“If you want to change the law, run for the state legislator or advocate within the state legislator, don’t run for DA.
“There is a fundamental misunderstanding, and let me be very upfront about this, the district attorney does not represent the defendant.
“From the California District Attorneys’ website, I read this, ‘The primary goal of the District Attorney is to protect the community he or she is elected to serve. District Attorneys represent the public and endeavor to improve public safety by prosecuting those who threaten the well-being of the community and its citizens by breaking the law. Ultimately, a DA strives to improve the community he or she represents by making it a better place to live for everyone.’ That is why in the State Courts of California, criminal cases are captioned, ‘The People of the State of California vs the Defendant.’ In Maryland, they’re called, ‘The People of the State of Maryland vs the Defendant.’ In Massachusetts, they’re called, ‘The Commonwealth of Massachusetts vs the Defendant.’
“The elected prosecutor represents the state and the community against the defendant. He or she does not represent the defendant. That person has his or her own lawyer.
“As a career prosecutor, I believe strongly and encourage that we have confident, able, ethical defense attorneys – well-funded public defender offices because that’s the way the system is supposed to work. Any prosecutor worth his salt wants a good, strong defense attorney on the other side. That’s how it should work.
“Third, violent crime goes up. In the past two years, there has been a general decline in the homicide rate across the United States. In Philadelphia, in 2018, the first year of Mr. Krasner’s term as district attorney, homicides went up 11%, the highest rate in more than a decade. In 2019, they were up again, and as of this morning, year to date over 2019, they are up again another 26%.
“In Baltimore, homicides have risen yearly since 2015. In 2019, the highest number of per capita murders in Baltimore’s history took place. In a 24 hour period in January this year, there were eight separate shootings with 12 people wounded and five people dead in Baltimore.
“Four, victims are all too often forgotten. There are any number of instances where violent criminal defendants have been given ‘sweetheart deals’ by progressive prosecutors and the victims have been a complete afterthought. One thing we need to remember is that when violent crime rates go up, the victims of those crimes are overwhelmingly minority communities.
“In Philadelphia, in 2018, 92% of those homicide victims I talked about were either African American or Hispanic. In Baltimore, in 2018, 93% of homicide victims were African American. These policies all too often result in increased victimization of minority communities. Is that really what we want?
“Thank you for this opportunity to be here with you today. I look forward to a meaningful dialogue with my co-panelists and I will answer to the name ‘Darth Vader’ here today. Thank you.”
“So thank you very much. You’ve raised already in your introductory remarks many, many key issues on which I hope we will focus. I’d actually like to begin with a question about how your offices measure success. And, I mean that both office-wide, when is it that your offices succeeded? An also for an individual prosecutor in terms of their promotion or retention, when has your office succeeded office-wide, when in terms of a particular prosecutor, and is ‘winning’ part of that measure of success and if so what does ‘winning’ mean?
“So that’s my initial question. And before I turn it over to our panelists, I do want to remind anyone, if you have not filled out the small card of the most pressing issue for prosecutors today, please do it out right away. And if you have questions you would like to address the panel or have addressed the panel, please fill out the large cards. Alright, without further ado, how do you measure success?”
“I want to comment on something else.
“As a person who is actually elected to do my job and not appointed to do my job, and I will say as one of the less than 1% of actual people with melanin that are in this role, I’m really tired – as a person who has been in the US Attorney’s office as well – when US Attorneys hover up here in the good air, talking about the communities that they only touch with project safe neighborhoods or other things, there’s no diversity in these offices, number one, usually, certainly in Massachusetts where I serve.
“What I can say is just defendants are part of the community. What I find fascinating is people that have actually tried criminal cases in state courts or local jurisdictions know that defendants are witnesses to crimes and victims of crimes as well, figuratively or literally. When we treat them like trash when they’re defendants and wonder why their family members who all know this don’t want to come forward or help, these are our potential jurors.
“I can’t sit here, as my mother raised me, and say I really don’t have much time for more white men telling me what communities of color do. Because they don’t know.”
“I’m a white man and I want to weigh in, too. I want to say something very briefly.”
MCGREGOR “GREG” SCOTT
“So I worked as a deputy district attorney and elected district attorney, I’ve tried over 100 jury trials in the state courts of California, and I’ve dealt with victims, and I’ve dealt with defendants, so I don’t breath the rarified air of the United States Attorney’s office because my foundation in this work was in that area. So thank you.”
“So at the risk of piling on, I would actually go right to Greg’s history as the elected DA. I know that Greg does have the experience that many of us have of working state courts but it’s important to remember that this engages with another one of the points that Greg made about, I think he described it as usurping the role of the legislative branch.
“The California District Attorneys Association, which I am a part and which Greg was a part when he was elected district attorney, regularly lobbies for law changes, effectively prevents criminal justice reforms at the legislative level, and, even once those laws pass, fights to undermine them.
“So when we think about how we measure our success, I think it’s really important, as Greg said, to focus on public safety. But as Rachael said, the public that we are to protect is not limited to certain people and certain procedural postures in a case. I can tell you as a public defender for many years representing thousands of clients, virtually every single person that I represented have themselves been a victim of a crime at some point in their life.
“And that doesn’t mean, I want to be very clear, that doesn’t mean that it’s a legal excuse for what they did or that we don’t have accountability for what they did in the case where they’re a defendant. But what it does mean, if we’re serious about public safety, we have to recognize that we failed to protect those people in the first place. And the more we can do to break the cycle of incarceration, to address the racial disparities that drive so much inequity in our society, to address the root causes of crime, to heal and not simply punish, the safer that we will all be.”
“And I will simply add, having dealt with the same sort of, and I’ll just quote you, ‘rhetoric’ that was just put out with reference to violent crime and this idea of criminal justice reform where there is no correlation at all.
“You used an example of Baltimore – you’re not from Baltimore, so I would advise you to please, before you make any mention of what happens in my city, to know what you’re talking about.
“I have, let me just, since you are so astute, I have worked with five police commissioners in three years, three mayoral administrations, including a mayor that is awaiting federal sentencing. I have, in the five years I have been office and attempted police accountability from the uprising and the untimely death of Freddy Gray. To the 183-page report of the Department of Justice that came in and exposed the pattern and practice of discriminatory enforcement of one of the largest police organization in the country. To the full implementation of body-worn cameras on officers where they were reenacting the discovery and seizure of evidence and not placing it in their statement of probable cause. To having to play clean up to one of the largest police corruption scandals in the history of the country where my office was assigned and had to assess thousands of cases of corrupt police officers within were not only going and planting guns and drugs on individuals but redistributing guns and drugs on the streets of Baltimore.
“So before you talk and draw any sort of correlation to criminal justice reform or to sit up here and to say that we are somehow usurping legislators, understanding that you are a prosecutor and the awesome discretion that comes with it, should understand that if you are a truly progressive prosecutor as you noted, a progressive prosecutor or progressive person is a person advocating for implementation of social reform or new liberal ideas.
“We are moving away from the rhetoric of the tough on crime approach, the war on drugs, stop and frisk, zero-tolerance policing, and winning at all costs which has lead to mass incarceration and the overcriminalization of poor black and brown people.
“I will continue, when it came to the legislating and going beyond, as you have put it, ‘usurping legislators,’ it was I that came up and said, ‘I will not prosecute marijuana possession.’ Why? Because there is no public safety value in doing it, for one.
“Two, it is counterproductive to the limited resources that we have in Baltimore city. If you’re so familiar with Baltimore, you would understand that in 2018, we had a 26% homicide clearance rate. That means we’re solving one out of four cases. So, to have people still prosecuting low levels of marijuana where you’re going into court – you’re processing them in court, you’re signing overtime slips, you’re preparing and doing CDS analysis for marijuana – that doesn’t make sense. And I’m going to tell you I will do it again.
“The most problematic issue for me, and the reason why I guess I’ve usurped the legislators in making that determination as they’re moving towards the legalization of marijuana in the state of Maryland – individuals making millions of dollars at this point, yet they still want to discriminate against poor black and brown people. The numbers do not lie.
“When you look at the statistics, and this is something that as a prosecutor you should understand and appreciate, is that we already knew that black people were four times more likely to be arrested for the mere possession of marijuana even though there is no disparate use in marijuana consumption. In the city of Baltimore, you were six times more likely to be arrested for the possession of marijuana. We understand and recognize the collateral consequences that come with that.
“But even after the decriminalization of 10 grams or less, where the officers are now assigned to give a citation, what we saw in the city of Baltimore was that: in 2015, 89% of those citations were given to black people; 2016, 94% were issued to black people; 2017, 95% were issued to black people.
“And the most problematic statistic was ultimately the reason why I said I would never be complicit in the discriminatory enforcement of laws against black and brown people, is because 42% of the citations that they were issuing went to one of the nine police districts. Which district do you think that was? The one where the uprising took place which was in the western district which happens to be 95% black and disproportionately impoverished.
“We have a role, we have an obligation to pursue justice and that is inclusive of the defendant. Look it up.”
“Homicides were down after my first year, so do we win? Homicides were down so that’s why you didn’t – ok.”
“So I want to speak to that as well, I can’t even pretend to follow Marilyn but I do think that she started a conversation about data and it’s really important about how we measure success. Just to touch back to the core question, I think the statistics that Marilyn knows by heart are really important for all of us when we think about evaluating ourselves and our district attorneys. Where are we starting, where are we going, how do we measure that success?
“Convictions rate is way too narrow and oversimplified. It’s one metric among many, it’s not how we evaluate individual attorneys, it’s not how we evaluate ourselves as an office primarily. It’s about doing justice and it’s about making the city safer so I want to go back to one of the things that Greg mentioned about crime rates.
“In San Francisco today, after nearly a decade under progressive reformer DA George Gascón, homicide rates are at their lowest since 1961. Violent crime rates have fallen across the board. Property crime rates have fallen two years running. So we are actually moving in the right direction and we’re doing it in a way that’s more humane, more effective, more resource savvy, and ultimately more victim-centered because we have dramatically expanded in the last 10 years our victim services unit doing what no tough on crime prosecutor ever bothered to think about doing.
“And we’re not doing it through city funds or state funds – we’re doing it through grant money because we have a system where people conflate justice and victim’s rights with punishment. There may be some overlap in some cases but they are very different things, just like accountability and punishment have overlap but are very different things. We need to heal victims, we need to put victims first, and we also need to make sure that the 99.9% of people who come into our jails and will get released at some point in their life, get released set-up for success, not set up to fail.
“So when I read two nights ago that County Jail #4 that needs to be closed didn’t have any heat on a very cold night in San Francisco, when I heard members of the board of supervisors reaching out and saying that people in the jail were freezing and didn’t have heat or blankets, when I heard in the newspaper a week ago that a city is paying $2.3 million to settle a lawsuit because open sewage in the county jail, I measure their success and we’re not living up to our values. We need to do better by everybody. 90% of those people are presumed innocent. We need to do better for the people, all the people, even the people that we are going to send to prison.”
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