By Yoel Haile
There is one set of actors that has long operated as the engine behind the twinned, racist forces of police impunity and mass incarceration: our District Attorneys. Yet, despite the chorus of calls to divest from police forces and reduce overcrowded prison and jail conditions, too little attention has been paid to DAs.
Overincarceration and overpolicing, and their disproportionately destructive consequences on Black lives, can largely be explained by the decisions of our local prosecutors, who act as a fundamental arm of law enforcement. As such, we must extend the same critical attention to DAs that we are extending to local police departments and carceral systems.
It is undisputed that California prisons and jails are disproportionately crowded with Black people. To understand why, we must examine the initial stages of our criminal legal system: once police make an arrest, prosecutors operate with extraordinary power and inscrutable discretion, picking and choosing who to charge, and how severely.
Data shows that they charge and convict Black people at vastly higher rates than whites, and that Black people consistently receive longer sentences than whites. But there is no requirement for prosecutors to explain their decisions, and they are totally immune from damages. DAs have essentially been allowed to feed and shape our prison population without oversight or accountability, even though data shows the racial disparities that their decisions perpetuate, and even though they are elected officials.
It was exactly these racial disparities, and this troubling imbalance of power, that Northern California public defenders had in mind in recent weeks when they called out DAs for their roles in harming Black lives. Those DAs—rather than reflecting, critically engaging, or creating change—lashed out.
In Santa Clara County, DA Jeff Rosen threatened to file a whistleblower complaint against a public defender who wrote a blog post criticizing prosecutors for pursuing draconian charges against Black people and turning a blind eye to police misconduct. In Yolo County, after a public defender rightly cited racial disparities in county courts and jails, DA Jeff Reisig accused her of “shameful demagoguery.”
However, data from Santa Clara and Yolo Counties bear out the racial injustices that prosecutors have perpetuated. In 2017, 12.7% of the people that the Santa Clara County DA’s office prosecuted for felonies were Black, even though Black people made up only 2% of the population. In Yolo County, Black people made up nearly 3% of the population but 25% of the county jail population.
DAs further contribute to mass incarceration by vehemently opposing the release of people from prisons and jails. Recently, in Stanislaus County, DA Birgit Fladager flouted the statewide emergency bail schedule aimed at curbing the spread of COVID-19 in county lock-ups: she instituted a policy to arbitrarily charge people with looting who would otherwise be charged with burglary, grand theft, and petty theft, in order to keep people in custody. And the Tulare County DA’s Office filed hundreds of motions opposing people’s release despite the looming threat of an epidemic inside its county jails.
DAs have set this oppositional precedent time and time again, even when it has directly opposed the will of the people. In 2016, only 1 in 58 of the DAs in California supported Prop. 57, which increased parole opportunities for people convicted as juveniles. 64.5% of Californians voted in favor of the law. According to data recently obtained by the ACLU of Northern California through public information requests, the Alameda County DA opposed the release of 70% of people at parole hearings in 2017/2018. The Sacramento County DA opposed release for 98% of the parole hearings they attended in 2018.
While prosecutors have continued to disproportionately criminalize and incarcerate Black people, there is one group they do not file charges against: the police. Even though the Bay Area comes second in the nation in the likelihood of its Black residents to be killed by police, no Bay Area DA has charged a police officer for killing a Black person since 2009—despite the fact that Black people account for 27% of those killed by police since 2015 alone, and they are only 7% of the Bay Area population.
There are steps that DAs across our state can take—at a minimum—if they are to begin to end their complicity in the mechanisms of the criminal legal system that enforce systemic violence upon Black lives. They must prosecute police who take the lives of people of color; they must stop seeking the extreme prison sentences and enhancements that disproportionately rip Black lives away from their communities; they must redirect their enormous budgets to community-led organizations that are lifting up Black communities rather than locking them away.
Collectively, we must work to lift the veil of secrecy that DAs operate behind. We must engage with them; ask them questions; treat them with the same scrutiny we would a sheriff, a judge, or a legislator. They are, after all, elected officials.
Yoel Haile is the Criminal Justice Program Manager at the ACLU of Northern California, which created meetyourda.org—an online resource for Californians interested in directly contacting their county prosecutors.
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