Deputy Attorney General Jeffrey Rosen’s screed against reform-minded prosecutors dropped in the Washington Post last Wednesday as many of us were heading out for Thanksgiving break. But there are so many things wrong with the op-ed piece, it contained so many dubious assumptions and unfounded conclusions, that it would be a shame to let it go unanswered now that we all are back from the holiday.
Rosen went after four local prosecutors, all duly elected by voters in their communities, for what he called their “misguided experiment in social justice reform.” These state and district attorneys, he wrote, are “shirking their duty” to keep the public safe by refusing to enforce “entire categories of core criminal offenses.” It’s an argument that ignores the weight of the evidence, recent history, police data, academic research, and common sense.
What Rosen and other Trump officials really are concerned about is the rise in public support for these reformist prosecutors and what that support portends for the future of criminal justice in America. If the reforms work, and it looks like some will, they will bring sense and sensibility (and less incarceration and taxpayer expense) to modern justice systems. In doing so, they’ll undermine key tenets of this administration’s march toward authoritarianism.
Don’t take my word for it. Bennett Gershman, a law professor at Pace University and leading authority on the duties and obligations of prosecutors, saw right through Rosen’s piece as well. It “paints a false, misleading, and partisan picture of reality, and [of] the real-world policies of many of the newly elected DAs to try to make the system a better place for all involved,” Gershman wrote in an email Sunday. He was being kind.
Take Philadelphia District Attorney Larry Krasner, for example. Rosen thinks it’s a terrible idea that Krasner “effectively decriminalized” the misdemeanor crime of theft of property up to $500. What Krasner actually did was turn that low-level, nonviolent crime into a “summary offense” that can lead to a maximum sentence of 90 days in jail. Why? To focus limited resources (especially the costs of incarceration) on more significant cases.
Krasner campaigned on re-prioritizing Philadelphia’s broken justice system in the face of ferocious opposition from entrenched legal and political interests. He angered police union officials, who have protected rogue cops for decades, when he came out in favor of bail and sentencing reform and a rejiggering of prosecutorial priorities. It’s debatable whether these proposals will work. What’s not debatable is that they never should have been tried.
Rosen says the problem with Krasner and his compatriots is that the nation’s justice systems aren’t “broken” after all, that they are working precisely as they are supposed to work. Tell that to the family of a prisoner sent away for life for a nonviolent drug crime or to the family of a murder victim whose crime has not been solved. Contrary to what Rosen seems to believe, both crime rates and incarceration rates can drop at the same time.
Rosen targeted three other prosecutors, all Democrats. He writes that “outright nonenforcement of the law is an affront to the separation of powers.” His beef? These officials are ignoring the will of the people as expressed through their legislatures, whose members expect the law to be enforced. Yet Rosen does not cite reform-minded prosecutor John Creuzot, in deep-red Texas, or the “Second Amendment sanctuary” movement, in which radical sheriffs have vowed not to enforce restrictive guns laws.
Rosen overlooks the sheriffs, and broadening conservative support for criminal justice reform, because he’s not really concerned with public officials who ignore those parts of the Constitution they dislike. Unlike the sheriffs, who are flat-out lawless, the elected officials who are the target of Rosen’s wrath are exercising their lawful authority. They just aren’t exercising it the way Rosen, Attorney General William Barr, and President Trump want them to.
Rosen’s flawed arguments on the merits are made materially worse by a series of paragraphs that read like the sort of projection, or misdirection, we’ve become accustomed to seeing from Trump administration officials. The federal government today is guilty of virtually everything Rosen alleges against his perceived foils in state and local government.
“These prosecutors risk demeaning the very institutions they are appointed to lead and fueling mistrust by promoting false narratives about the criminal-justice system and law enforcement,” Rosen writes. “The prosecutors are essentially flipping the script, casting criminals as victims and police as villains. This distortion is not only demoralizing to law enforcement but also emboldens hostility toward both the rule of law and those entrusted with enforcing it.”
It’s not the reformist prosecutors who are fueling mistrust for criminal justice systems. It’s the judges and the police union officials and prosecutors like Rosen who have done so. Krasner and company were elected to clean up local justice systems that have sown mistrust in their communities through generations of discrimination, police misconduct, prosecutorial excess, and cruel sentencing laws.
For example Suffolk County District Attorney Rachael Rollins, whose district includes Boston, isn’t “casting” police as villains. She’s correctly identifying systemic police misconduct as anathema to a just system. Surely Rosen knows the difference. Likewise, the new DAs in San Francisco and Fairfax County, Virginia, aren’t implementing bail reform because they want to release violent offenders back into their communities. They are doing so because locking too many people up in pretrial detention is cruel, expensive, and ineffective.
To try to bolster his argument, Rosen then also completely misapplies the standards that govern the duties and responsibilities of prosecutors. “Indeed, DAs are supposed to represent the community against the defendant. Public defenders and other defense lawyers represent the alleged violators. Prosecutors who think they are defense lawyers are in the wrong job. Victims deserve better,” he writes.
This is just flat-out wrong. All prosecutors have ethical and moral duties to defendants. Take the jurisdictions that border the Justice Department’s base in Washington. In Virginia, for example, the rules of professional conduct forbid prosecutors are forbidden from filing or maintaining “a charge that the prosecutor knows is not supported by probable cause.” Prosecutors have “the responsibility of a minister of justice and not simply that of an advocate.”
In Maryland, prosecutors bear the responsibility “to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” The same obligations exist for prosecutors operating in the District of Columbia. Similar standards apply in Boston, Dallas, San Francisco, Philadelphia, and wherever else reformist prosecutors are changing things up.
Gershman highlighted the hypocrisy of hiding behind “victims” to frame prosecutors as avenging angels. “The prosecutor represents the entire community,” he wrote. They must serve the public interest with integrity and balanced judgment, Gershman told me, and “the prosecutor’s ‘client’ is the public generally, which includes everybody in the community, including the defendant, witnesses, as well as law enforcement officials and victims.”
The reforms these prosecutors are trying may or may not work in the long run. Certainly the early returns in many jurisdictions are promising. But to allege that they are being made in bad faith isn’t just an insult to the officials elected to bring about reform. It’s an insult to the residents of these communities who have voted for systemic change. They are victims, too, and they deserve Rosen’s respect, even if he makes clear they won’t get his support.
The views expressed are the author’s own and not necessarily those of the Brennan Center.