Charged The new movement to transform American prosecution and end mass incarceration

Review by New York Times Review

if you aspired to high office in the 20th and early 21st centuries, this was sound advice: Get thee to a prosecutor's office. Politicians from both parties, from Democrats like John Kerry to Republicans like Rudolph Giuliani, parlayed prosecutorial perches into politicai power and nationwide fame. The basic recipe for using a prosecutor's post as a springboard into politics required being "tough on crime," protecting the public by putting criminals behind bars. The vast majority of state and local prosecutors in the United States are elected, and taking a punitive tack was generally considered to be the path to re-election - and, frequently, election to higher office. Prosecutors had strong incentives to be harsh rather than lenient (or merciful) when dealing with defendants, and those incentives helped shape the criminal justice system as we know it today. In the words of the law professor and historian Jed Shugerman, a scholar of prosecutors turned politicians: "The emergence of the prosecutor's office as a steppingstone for higher office" has had "dramatic consequences in American criminal law and mass incarceration." These consequences are on full display in "Charged: The New Movement to Transform American Prosecution and End Mass Incarceration," by Emily Bázelon, a lecturer at Yale Law School and staff writer at The New York Times Magazine. In "Charged," a persuasive indictment of prosecutorial excess, Bázelon argues that the lawyers who work in the more than 2,000 prosecutors' offices around the country - conducting investigations, filing criminal charges and trying cases (or, much more commonly, striking plea bargains) - bear much of the responsibility for over-incarceration, conviction of the innocent and other serious problems of the criminal justice system. "We often think of prosecutors and defense lawyers as points of a triangle on the same plane, with the judge poised above them: equal contest, level playing field, neutral arbiter," Bázelon writes. But this is a misconception. As the Brooklyn district attorney, Eric Gonzalez, puts it to her: "It's all about discretion. Do you authorize the arrest, request bail, argue to keep them in jail or let them out, go all out on the charges or take a plea bargain? Prosecutors decide, especially, who gets a second chance." To show how prosecutorial power operates in the real world, Bázelon follows two young defendants through the system: Kevin (a pseudonym), a 20-year-old from the Brownsville neighborhood of Brooklyn who is charged with illegal gun possession, and Noura Jackson, a teenager from Memphis who is accused of murdering her mother. Their cases are very different - one involving a victimless crime, the other the most heinous crime of all - and so are the district attorneys. Kevin's prosecutor is Gonzalez, an aspiring reformer and the first Latino to serve as Brooklyn's district attorney, while Noura's is Amy Weirich, a hard-charging attorney in the traditional law-and-order mold. Bázelon uses these contrasting cases to demonstrate that having the right (or wrong) prosecutor can make a huge difference - between justice tempered with mercy and grave injustice. Bázelon tells the tales of Noura and Kevin in rich, novelistic prose, which at its best puts one in mind of Adrian Nicole LeBlanc's book "Random Family" (2003), about a troubled family from the Bronx in the grip of the criminal justice system. Consider the opening to Noura's story, the most gripping section of "Charged": "The blood was everywhere. Spattered on the floor of the hallway, on the doorframe of the bedroom and on the bedposts. Soaked into the sheets and pillows, and covering the body splayed on the floor at the foot of the bed. Jennifer Jackson was naked. Her face was covered by a wastepaper basket. Her chest and torso and hands were slashed, the pale skin torn by the blade of a knife. She'd been stabbed a total of 50 times." Bázelon interweaves Kevin's and Noura's stories with a remarkable amount of academic research by law professors, criminologists and other social scientists. The endnotes, replete with charts and graphs, run to more than 50 pages and acknowledge intellectual debts to such thinkers as Angela J. Davis, Paul Butler, Michelle Alexander and William Stuntz. This combination of powerful reporting with painstaking research yields a comprehensive examination of the modern American criminal justice system that appeals to both the head and the heart. The study of criminal justice is the study of power, and as a veteran legal journalist, Bázelon has long been concerned with this theme. Her last book, "Sticks and Stones," explored the culture of bullying and painted a nuanced portrait, rejecting a simple dichotomy between blameworthy bullies and innocent victims. "Charged" is considerably less balanced - in, say, its discussion of plea-bargaining, which Bázelon (convincingly) asserts is used to excess without sufficiently acknowledging its necessary role in the system, or of proprosecutor rulings by the Supreme Court, which she analyzes almost entirely from a public-policy perspective with little focus on their legal reasoning. This could cause readers who do not share Bazelon's politics to dismiss her core argument. But to the extent that it's a polemic, "Charged" reflects its author's passion for her subject. "As a journalist," she writes, "I've never felt a greater sense of urgency about exposing the roots of a problem and shining a light on the people working to solve it." Bázelon doesn't go easy on prosecutors, but at the same time she believes that American prosecution can heal itself. Discussing a group of young, diverse, reform-minded prosecutors whom she calls "the New D.A.S," she argues that "prosecutors also hold the key to change. They can protect against convicting the innocent. They can guard against racial bias. They can curtail mass incarceration." In a lengthy appendix, she offers "21 Principles for 21st-Century Prosecutors," a road map for those interested in reducing incarceration and increasing fairness in the justice system. Which of Bazelon's two visions for the future of American prosecution will carry the day: a continuation of the deplorable status quo or a revolution in fairness led by "the New D.A.s"? Recent developments offer reason to be hopeful. As was true of the factors that led us to the current sad state of affairs, it's all about incentives. The movement to reform the criminal justice system enjoys support from across the political spectrum, from Black Lives Matter activists trying to protect minority communities to libertarians like the Koch brothers troubled by government overspending. In December, Donald Trump, who campaigned for the presidency on a law-and-order platform, signed the First Step Act, a bipartisan package of sentencing and prison-condition reforms. This broader criminal justice reform reflects, and also contributes to, changing views of prosecutors. No longer simply the women and men who wear the "white hats," prosecutors today are seen - and properly so - as major players in the criminal justice system who can do great harm as well as good. As a result, in some cases, a prosecutor's record is no longer a political asset but a liability, or at least a mixed blessing. Take Kamala Harris, whose stints as San Francisco's district attorney and California's attorney general fueled her rise to the United States Senate. She now finds her quest for the Democratic presidential nomination complicated by decisions she made in her past positions: She has come under attack largely for having been too aggressive as a prosecutor, a historical novelty in American politics. If prosecutorial service is no longer a golden ticket to a successful political career, then being a prosecutor could lose some of its luster to young lawyers seeking power and prestige. Perhaps that's a good thing. In these often overlooked but incredibly important posts, we need people committed to advancing the interests of justice, not just their own ambitions. DAVID lat, a former federal prosecutor, is the founder of the legal news website Above the Law and the author of the novel "Supreme Ambitions."

Copyright (c) The New York Times Company [August 14, 2019]

---

Review by Booklist Review

Bazelon (Sticks and Stones, 2013), New York Times Magazine staff writer and cohost of Slate's Political Gabfest podcast, considers the heavy burden of prosecution in the U.S. and argues that prosecutors across the country wield too much power. Following, in particular, the stories of two young defendants a Brooklyn man arrested for felony gun possession, and a Memphis woman charged with her mother's murder Bazelon examines how the decisions of district attorneys and their staffs determine the futures of those they prosecute. Bazelon unravels these two stories suspensefully over the course of this excellently paced book. In the process, she exposes a lack of oversight and a trail of cases in which prosecutors either misplaced or intentionally hid evidence, forcing readers to question whether justice is really being served. She presents hope in the form of a new way forward, offering insights into reform-minded campaigns from a new generation of lawyers and scholars who prize transparency and fairness in sentencing. Though her evidence is grounded in research and case law, Bazelon's prose is refreshing, accessible, and bold. Fans of Bryan Stevenson (Just Mercy, 2014) and Matthew Desmond (Evicted, 2016) will be rapt with attention and cheering on efforts to rebuild public trust with a prosecution system that aims ""to offer mercy in equal measure to justice.""--Annie Bostrom Copyright 2019 Booklist

From Booklist, Copyright (c) American Library Association. Used with permission.

---

Review by Publisher's Weekly Review

In this timely exploration, Bazelon, a staff writer for the New York Times Magazine, argues that "the unfettered power of prosecutors is the missing piece for explaining how the number of people incarcerated in the United States has quintupled since the 1980s." Bazelon skillfully illustrates this idea by following the developments in two gripping cases with novelistic intensity. In the first, an old-school prosecutor's win-at-any-cost philosophy and questionable ethical behavior results in the conviction of a young Tennessee woman charged with a brutal murder, which is unanimously overturned by an appellate court years later because of prosecutorial misconduct. The second features the opposite: under a policy intended to reduce incarceration rates developed by a progressive district attorney in Brooklyn, a young man facing a gun possession charge pursues diversion (a rehabilitation program) rather than a two-year minimum sentence. Bazelon adeptly explains the culture that drives traditional district attorneys and the philosophies of reform-minded district attorneys, then briefly delves into the difficulty of preventing prosecutorial misconduct, the inequities of a bail system that effectively criminalizes poverty, systemic racial disparities, the sociological arguments for diversion, and how severe mandatory sentences distort the criminal justice system. Then, with modest optimism, she presents a road map for the emerging reform movement. This is a powerful indictment of the traditional prosecution model. Agent: Elyse Cheney, Elyse Cheney Literary Associates. (Apr.) © Copyright PWxyz, LLC. All rights reserved.

(c) Copyright PWxyz, LLC. All rights reserved

---

Review by Kirkus Book Review

A lawyer and journalist exposes flaws in the criminal justice system, with an emphasis on the untrammeled power of local prosecutors.Because the United States contains several thousand prosecutor jurisdictions (mostly at the county level), identifying misconduct is often difficult. In this potent book, New York Times Magazine writer Bazelon (Yale Law School; Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy, 2013) emphasizes prosecutors who care more about winning convictions rather than upholding their sworn duty of seeking justice. The author makes a convincing argument that if there were a larger number of justice-seeking prosecutors, we could reduce incarceration by a substantial percentage in a nation overwhelmed by prison costs. In addition, individual lives would no longer be derailed by criminal charges that are unnecessarily severe or even downright false. Bazelon aims her book at nonlawyer voters as well as defense attorneys, judges, police officers, social workers, prison wardens, and others in the criminal justice system. A clear message that resonates throughout the book: Never confuse the law with common sense. The author narrates her impressively researched book primarily through two defendants. One is Noura Jackson, a Memphis resident who was 18 when she was charged with the murder of her mother. Despite no physical evidence of guilt or eyewitness testimony, Jackson went to prison. Believing in Jackson's innocence, Bazelon wrote about the case in August 2017. Based on the extensive evidence she gathered, the author rightly demonizes the Memphis district attorney, the trial judge, and other law enforcement personnel in the Jackson prosecution. The author also explores the plight of Kevin (a pseudonym), a teenager arrested on a gun charge in Brooklyn. As Bazelon makes abundantly clear through her cogent, credible arguments, a sensible, compassionate system never would have arrested or prosecuted Kevin. Throughout the two narratives, the author demonstrates occasional optimism due to the election of reform-minded prosecutors in a few cities. The appendix, "Twenty-One Principles for Twenty-First-Century Prosecutors," is also helpful.A vitally important new entry in the continued heated debates about criminal justice. Copyright Kirkus Reviews, used with permission.

Copyright (c) Kirkus Reviews, used with permission.

---

Prosecution in America is at a crossroads. It arrived there because, over the last 40 years, the power of American prosecutors grew to an alarming degree. They amassed more power than our system was designed for. And they mostly used it to put more people in prison, contributing to the scourge of mass incarceration, which continues to rip apart poor communities, especially if they are mostly black or brown.   The unfettered power of prosecutors is the missing piece for explaining how the rate of incarceration in the United States has quintupled since the 1980s, to almost 2.2 million. Our level of imprisonment is five to 10 times higher than that of other liberal democracies--nine times Germany's and seven times France's. There's more: When the system misfires in the worst way possible, by convicting an innocent person, a prosecutor's errors (or less frequently, willful misconduct) often account for the breakdown, at least in part. And when black defendants are punished more severely than white defendants for similar crimes, the choices of prosecutors are largely to blame. Though they're not the only ones at fault, their decisions are the ones that matter most of all.   Jail and prison have a role to play in our society. Some people do scary things--not that many relatively speaking, but some--and a subset cause unconscionable harm. The overuse of incarceration, however, has become a source of tremendous suffering in its own right. Over-incarceration, lifetime consequences, government overreach, racial disparity--these are American disasters, adding up to one of the most pressing problems of our time.. They have not been fixed, not by any means. In many places in the country, they haven't even been addressed. Our justice system regularly operates as a system of in justice, grinding out unwarranted and counterproductive levels of punishment. This is, in large part, because of the outsize role prosecutors now play. "The power imbalance blew my mind frankly: I couldn't figure out for the life of me how prosecutors had so much power with so little accountability," said Angela J. Davis, a law professor who was formerly the director of the public defender service in Washington, D.C., and the author of a 2007 book about prosecutors. "They were allowed to do things, some unconstitutional, some perfectly legal but with horrific results that most human beings would think were unfair. I thought, How can this be?"   We often think of prosecutors and defense lawyers as points of a triangle on the same plane, with the judge poised above them. Equal contest, level playing field, neutral arbiter, etc. That image is entirely out of date. That's not how the system works anymore. Much of the time, prosecutors, more than judges, control the outcome of a case. They answer to no one else and make most of the key decisions in a case, from choosing the charge to making the bail demand to determining the plea bargain. The officer in uniform and the judge in robes are our indelible images of criminal justice. No one needs to explain the power they wield. Yet it is Caryn Teitelman, in her pantsuit and ballet flats, who today embodies the might and majesty of the state. "It's all about discretion," says Eric Gonzalez, the district attorney of Brooklyn and Teitelman's boss. "Do you authorize the arrest, request bail, argue to keep them in jail or let them out, go all out on the charges or take a plea bargain? Prosecutors decide, especially, who gets a second chance."   Here's the thing: prosecutors also hold the key to change. They can protect against convicting the innocent. They can guard against racial bias. They can curtail mass incarceration. Some prosecutors are themselves beginning to say the system should radically change. They're speaking as agents of law enforcement who see ensuring fairness as integral to public safety, because people who have faith in the criminal justice system are more likely to help the police solve crimes and to testify as witnesses in court. In a democracy, people tend to obey and help uphold the law when they believe it is fair. It's an understanding that's fundamental to the legitimacy of state power.   After decades of intransigence, some prosecutors are moving toward fairness and mercy, even leading the way. Inspired by a variety of forces--civil rights, a pragmatic kind of libertarian politics, the campaigns against violence and racism of Black Lives Matter--a movement to elect a new kind of district attorney is underway. This movement is young, but it's fast growing. And its leaders recognize a game-changing fact: The power of the D.A. makes him or her the actor in the system -- the only actor -- who can fix what's broken without changing a single law.   Prosecutors are not solely responsible for the state of the criminal justice system, of course. They necessarily respond to the cues of judges, legislators and other elected officials, and the priorities of the police, who are their closest partners. The quality of defense lawyers, especially those who represent the poor, matters a great deal for the quality of justice, and adequate funding for public defenders is an absolute necessity. When prosecutors make decisions about which offenders to charge to the max and which to spare, they need good defense attorneys with the time, resources, and heart to tell their clients' stories and make the case for mercy. But when it comes to broader policy shifts, like ending criminal charges for marijuana or reducing punishment in general, prosecutors truly hold the power. They offer a short cut to persuading legislators, with all of their competing priorities and allegiances, to shorten sentences and cut the fat out of the criminal code. It's still important to change the laws, but we can stop caging people needlessly right now if prosecutors would only choose to open the locks.   Because we, the people, elect state prosecutors, their power is our power. We can shape--and reshape--the choices they make. American criminal justice reformers have thoroughly absorbed this lesson: If you want to transform the system, take over the D.A.'s office. In the last few years, for the first time, a wave of reform-minded prosecutors has won election and taken office.   This group includes Republicans as well as Democrats in red counties and blue cities. Most have been in office for only a year or two, and their playbook for making change remains a work in progress. Like all politicians--and human beings--the newly elected prosecutors aren't perfect. Some will inevitably prove too cautious. Others will be bruised by conflicts they can't control. A few will turn out to be total disappointments. The newly elected D.A.s are also a small number relative to the nearly 2,500 prosecutors who hold elected office nationwide.   But they now hold the reins of law enforcement in some of our biggest cities, as well as a scattering of rural areas, in every region of the country. And they were put in office to do nothing less than reinvent how their job is done. If they do what they were elected to do, they can point the country toward a different and profoundly better future, by rewriting the rules that have crushed so many people and that govern all of our lives. There's good reason to think the number of people in prison and jail could be safely reduced by half or even three quarters--and that in a century or two, our current embrace of mass incarceration will seem as sinful as slavery does now.   In the national conversation about our exploding prison system, we've just begun to grapple with what prosecutors do and we still don't understand deeply who they are. On TV serials and in the press, they're portrayed as calculating politicians, white-hat heroes, or rote functionaries. These are not fair or full portraits. Prosecutors have always been obligated to pursue a dual mission: seek convictions and act as ministers of justice. The roles are "obviously unharmonious," Supreme Court Justice Thurgood Marshall once wrote, a phrase that captures the difficulty inherent in playing both at once. But mastering that duality is fundamental to a prosecutor's professional and ethical calling. Good prosecutors know it and live it and teach it. The prosecutor "is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer," Supreme Court Justice George Sutherland wrote in 1935. "The citizen's safety lies in the prosecutor who tempers zeal with human kindness," Justice Robert Jackson added five years later. In other words, the prosecutor's job is not to exact the greatest possible punishment. It is not to win at all costs. It's to offer mercy in equal measure to justice. Excerpted from Charged: The New Movement to Transform American Prosecution and End Mass Incarceration by Emily Bazelon All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.

---