What is uncomfortable right now in looking inward and challenging our ideas, there's beauty on the other side, there's a bigger win on the other side.
Adam Foss wants to transform the justice system—from within.
Fresh from law school, Foss began his career as a prosecutor in the Suffolk County (Boston) District Attorney’s Office, “in the front lines of mass incarceration.” He rose quickly through the ranks, and in 2016, gave a TED Talk criticizing prosecutors for using their massive power more often to jail than to help people. Too often, he implied, he and his colleagues were just cogs in a broken machine.
That talk has now been viewed more than two million times and its success led Foss to found a nonprofit, Prosecutor Impact. It trains prosecutors across the country in line with Foss's vision for the profession.
Foss was a guest on New Thinking in 2018 as part of its series on the power of prosecutors where he made a notably unapologetic defense of that power. It's not that prosecutors had too much discretion, he said, it's just that no one has shown them how to use it for good.
But as protests over the killing of George Floyd, and so many other African Americans, by police continue, New Thinking host Matt Watkins talked to Foss again, to get his reaction to the current moment, and to ask: how does one work from within to transform the justice system, especially when so many voices right now are saying that system is too rotten to be saved?
Resources and References
- C.J. Chivers, The New York Times Magazine, 'Trump Didn’t "Send In the Troops." They Were Already There.' (06.23)
- Star Tribune (Minnesota), 'Killing of George Floyd Shows That Years of Police Reform Fall Far Short' (06.20)
- The New York Times, 'How Do the Police Actually Spend Their Time?' (06.19)
- HuffPost, '"Implicit Bias" Trainings Don’t Actually Change Police Behavior' (06.15)
- The New York Times, 'Rage and Promises Followed Ferguson, but Little Changed' (06.13)
- Mariame Kaba, The New York Times, 'Yes, We Mean Literally Abolish the Police' (06.12)
- Patrick Sharkey (New Thinking alum), The Washington Post, 'Cops Prevent Violence. But They Aren’t the Only Ones Who Can Do It' (06.12)
- Clarence Wardell and Denice Ross, The Boston Globe, 'Police Data Belongs to the People' (06.12)
- Filter, 'Don’t Forget Prosecutors When It Comes to Defunding' (06.11)
- The New Yorker, 'How the Federal Government Can Reform the Police' [interview with Tracey Meares] (06.10)
- Nicole Gonzalez Van Cleve and Somil Trivedi (New Thinking alum), Slate, 'Why Prosecutors Keep Letting Police Get Away With Murder' (06.05)
The following is a transcript of the podcast:
Adam FOSS: Before I dive down the cynical rabbit hole that I tend to dive down, I just want to reflect upon all of the things that have happened because of the work of people in the street.
Particularly those who are formerly incarcerated or are from the communities that have borne the brunt of all of these systems that we've talked about for a long time. Particularly the young people who have been told year after year to change their tactics, to pull their pants up, to not be so loud.
We can just take a moment and pause and recognize the monumental accomplishments of the latest unrest in our cities, the protests. For me, this is the first time that I've ever seen of a reflex from the other side.
It’s the first time that I've seen communities divesting from their police departments, like they did in Minneapolis, watching the school department in Minneapolis break their contract with the police department, seeing other jurisdictions follow suit.
Then obviously all of the things that corporations have done in response and the individuals reaching out and really asking all of ourselves: what is the thing to do in this moment? None of that happens in my mind, if not for the dogged work of grassroots organizers and people who are creating the wave out in the streets.
Beyond that though, I am resolute in my work in that none of this has changed much for the way that I think about my job or the job of anyone who's trying to fix the system. On the other side of that coin, I've seen moments where I had to ask myself: if this isn't going to be it, then what is? They weren't it.
When Ferguson happened, when Sandy Hook happened, when Sandra Bland died, when Kalief Browder died, you think about all of these moments in our history, in our recent history, that begged for this kind of change, and then something else took over the news cycle. I'm cautious in my optimism around the sustainability of some of these changes, but I'm so happy to see finally that we are moving in a direction that looks like progress.
Matt WATKINS: You did mention though something about a cynical rabbit hole. I don't want to leave that rabbit hole dangling, so to speak. Do you want to go down that a little bit?
FOSS: It's just picking up off what I mentioned in terms of seeing a lot of people who are desperate to find answers. The cynic in me tells me that desperation actually has more to do with the way that they are personally feeling, and less to do with their understanding and awakening and engagement in the long and arduous work that is going to have to be done.
We're a long way from seeing sustainable long-term change. As an example of that, despite the fact that 55,000 people from the Commonwealth of Massachusetts marched in the street of Boston last week, pleading for the police department to do something different, I wake up to a headline about some gang raid that the police did this morning.
And the U.S. Attorney and the commissioner of the police department are talking about these young people as if they've been running this international trafficking ring for years. I'm looking at the list, and I know three of the kids. They're young men now, but this is a play out of the playbook from the 1990s.
The language in the article was about how this heavy hand is going to deter a future crime. For me, someone who's been steeped in this work and doing this work for a long time, I have a real, real fear that the commissioner of one of the biggest police departments in the country and the United States Attorney for the Commonwealth of Massachusetts are talking about the deterrent effect of the criminal justice system.
That tells me that they are inept and should not be doing their jobs. It is so outdated of a way of thinking that somehow that they arrested 10 or 15 kids from this neighborhood that has been perpetually underserved, perpetually marginalized.
Instead of investing in that community and preventing further harm, we instead decided to spend millions of dollars of a federal investigation, got like 15 guns off the street, and are going to throw these kids into federal prison, as if we we've solved the problem. It is embarrassing for the U.S. Attorney to call himself a prosecutor today.
WATKINS: You know better than most, I think, given the work you used to do and the work you do now, just how entrenched the reflexes and the patterns of the justice system are. They're not going to change in response to a few weeks of protests or COVID-19, for that matter.
FOSS: No, and I don't expect them to. I don't expect them to change because of protests or because of COVID-19. I expect them to change because we are lawyers and as lawyers, we build cases on evidence. This is the only case that we will build despite evidence to the exact contrary that this is an abject failure.
WATKINS: Before we talk a bit more about the kind of work that you think institutions, and maybe specifically prosecutors’ offices, have to do, for folks who didn't hear the first interview we did on this podcast, could you just talk briefly about how you got to your current role of working with prosecutors’ offices and then what that work primarily consists of?
FOSS: I didn't really intend to become anybody involved with the criminal justice system when I went to law school but had a number of opportunities in law school that really synthesized the way that I thought about what I wanted to do with my life and I got the opportunity to become a prosecutor.
I joined the D.A.'s office in Boston and walked into that office with a lot of ideas about what I could do with the power of the prosecutor and the criminal justice system, and Immediately started making really poor decisions in my first few days of work.
Not because my values weren’t any good, not because I was an explicit racist and because I enjoyed locking up black and brown and poor people, not because I enjoyed failing at my job, but because I walked into an institution that has been propped up on culture and tradition and history, as opposed to an institution that was propped up on evidence and research and science.
Walked from the hallowed halls of my privileged law school into one of the most marginalized communities in Massachusetts and got no specialized training to do so. And that is where a lot of damage was done. I stood in the front lines of mass incarceration.
While the conversation around mass incarceration was brewing in this country, we were talking about the war on drugs and federal legislation and bad politicians and bad police officers, and everybody was bad. When I was looking around on the front lines, I didn't see bad people.
I saw people who had really, really good intentions, had values that were aligned with mine, but walked into a system that did not equip them to do the very important work that we were doing, nor did it make us deal with and confront our biases. As a result, abracadabra, we have mass incarceration and the disparities that we have.
I just started doing things differently as a prosecutor. I started learning things that were outside the realm of legal education. Lots around human behavior, trauma, poverty, the intersection of poverty, trauma, and mental health or addiction, and started implementing some of those learnings in the way that I worked with people in the justice system and was getting good results.
I wanted to give that to other prosecutors. I came out, I built this organization, and we work with prosecutors’ offices intensely and deeply, trying to change the culture in those offices, so that the values and the mission towards this north star is accomplished by a different set of tools and metrics and information. I have the privilege of doing that all over the country now.
WATKINS: Maybe it's fair to say, somewhat like the Center for Court Innovation, you work from inside the system to try to make the system better. Right now, voices saying that the status quo of the justice system is too rotten to be saved, those voices are really having a moment right now—maybe it's going to prove to be more than a moment. I wonder, in light of that, how you think about the work that you're doing right now.
FOSS: I have to hold my nose and understand that the work that I'm doing is improving part of a broken system that has lots of broken parts. Probably outside of tearing it down and starting all over again, it is arguably complicit in the existence of a dysfunctional system.
That being said, when I hear people talking about defunding the police, and in some cases defunding prosecutors’ offices, I don't hear them saying: "Get rid of law enforcement and get rid of some body that holds the arbitration or resolution when harm is created in communities." What I hear people saying is, "We need to completely and dramatically re-engineer all of the actors in this system and in these institutions." I view my work as part of that.
We are not trying to make prosecutors something that they are not, we are trying to actually give prosecutors the tools to do the things that they want to do, which is keep communities safe, help communities heal, and hold people accountable. We've just been given an outdated set of tools and a culture that flies in the face of achieving any of those values and is based on white supremacy, retribution, and piss-poor metrics.
WATKINS: It seems like some of the motivation for the defund police call is a feeling that none of the reforms, and there's been waves of them for years, have really worked, that the only solution, then, is to work on trying to shrink the footprint of the system—of policing, in this instance. I don't know if you agree with that. But do you think that is something that should be extended to prosecutors’ offices? That a main goal of prosecutor reform could just be trying to shrink the footprint and the power of the office?
FOSS: When people say defund prosecutor's offices, they are mired in this belief that prosecutor's offices are these wealthy institutions that are super-privileged and people are getting paid a ton of money. Some people even think that there's like financial incentive to lock up as many people as possible, and I get paid more money to do that.
I will concede that, because of the way that we measure people's performance in D.A.’s offices, there is an indirect link between those two things. No prosecutor is going to work every day looking at their scoreboard and being like, "If I want to make more money this month, I need to lock more people up." It's a shitty vestige of the metric system.
Police, on the other hand, have these significantly bloated budgets. There are budgets in some of the major cities for their police departments that rival the GDP of several civilized countries.
The question I think about the police is like, "For that amount of money, why is it that you're so ineffective? Why is it that crime still is the way that it is? Why is it that homicide clearance rates still are the way they are? Why is it that domestic violence is so pervasive in households across the country? Why is it that people are still overdosing from drugs?" If the answer to all those problems is the thing that we funded so heavily.
What people are saying is not that there isn't value in having some body that responds to calls for people who are in need of help, what people are saying is we've given you all of this money and you suck at it. Not only do you suck at it, but you've created such a culture, that people are left with the Hobson's choice of whether or not even to pick up the phone, because if they're being harmed, the people who are supposed to be saving them from that harm might harm them as well.
We as an institution that always talks about accountability and demanding accountability, need to be accountable to ourselves that we are shitty customer service agents, and we need to radically alter the way that we do business.
WATKINS: On the question of culture, you've talked really movingly about changing the culture of prosecutors’ offices, so that a win is no longer considered to be locking somebody up, but a win is helping somebody get their life on track and sparing them the really debilitating effects of incarceration. We just know how strong culture is at all levels of the justice system and can kind of stifle change. How do you work taking on that beast of culture?
FOSS: It is a difficult challenge for me at this point in time to find the prosecutor anywhere in this country who’s saying everything works fine. Lots of prosecutors know that there's an issue. Lots of prosecutors are struggling to figure out what is their role in this new moment, but also in the legacy of mass incarceration. Part of the work that we do is treating people who work in this place, the way that you would treat them if they were working at a private business.
Government and the public sector writ large have really operated on, again, this culture of process, of administration, of supremacy, of nepotism, and rarely, if ever, have we taken the time to be like, "How are we treating our employees?" Like, are people happy at work? You think about all of the sort of like tongue-in-cheek jokes we tell about the people who are working at the DMV or the clerk's office in these buildings.
People are fucking miserable. It's because they've gone into these jobs as public servants, they want to serve. We handed them a shitty tool set. We never screened the people who were coming into the system to see if they were fit to work here. Then when they got here, we gave them old outdated tools and we lied to them.
One of the first things we do is really just like level-set and listen to people. People really want to be heard and they want to have a purpose. What we do is tap into the values that people hold to come to these places and talk to them with language like, you've been deprived of something. The decisions that you're making and the responsibility that you have requires an investment in you that people have not made either in your education or in your day-to-day job, so let us do that.
It requires more than an hour-long training, but you have to build the environment of trust and safety—again, tapping into people's human behavior—if you want them to move.
WATKINS: On the topic of training, in the last few weeks, in these tumultuous times, training's been having kind of an anti-moment. People are pointing out, for example, how much of what was considered to be the best training was offered to the Minneapolis police department, because this isn't the first time terrible incidents like this have happened there.
I wonder as someone who offers training, what you think of the bulk of the training that is out there, and the focus we often have on implicit bias, for example, rather than just straight racism and American history.
FOSS: I think we've gone a long way to act as if training is the silver bullet that's going to solve problems. What I think we've learned, certainly at my organization, is that training is part of a larger ecosystem that again, we can summarize in the word culture.
The problem in my mind is that we've always reacted with trainings. Somebody does something wrong or something goes wrong, and now we have a training and that lacks the intentionality that really this work requires.
Imagine if we were somehow required to go to a foreign land to save people, and to do that we had to learn an entirely new language, and to learn that new language our institutions funded and provided for us an hour-long training to learn that new language once a year.
How would that make you feel about the investment in that training? How would it make you feel about the goals of this mission to save these people, if all you were getting was an hour-long training? From a human behavior lens, how much can you possibly learn in an hour, particularly when the thing that we're trying to train people to do is something radically different than what they've been trained to do their entire lives?
Training, I see, fails in two ways. One is just the abject lack of commitment to it because it takes time, it's hard, at times it's boring, sometimes it's unpleasant. The second thing is we have, again, we have a really hard time with accountability, and we love tradition and we love experience.
Trainings that I got as a prosecutor, that I've seen other people getting as prosecutors and police, aren't designed by people who understand how human beings learn and think. They're designed by people who have been doing the job for longer than us.
Getting away from that mentality, where having the salty-haired white guy stand at the front of the room and tell war stories is adequate for training. Just like having a person come in to talk about implicit bias for an hour and checking the box and say, "We did that," is offensive to people who, one, study the topic, but two, for the people who are the recipients of all the bad parts of implicit bias.
WATKINS: If we return to everything that's been happening in the last few weeks and this movement to reform or defund or abolish—it's a spectrum, obviously. Where do you see that movement going? It's sort of an unfair question to ask you to make predictions, but I’m curious to know where you think it might go, or where would you like it to go?
FOSS: Where I would like it to go is, let's just try it out. This isn't working. I live in Los Angeles. We have one of the highest police budgets in the country. And there are people who are sleeping and dying in front of my apartment building. There are people who are still carrying around guns and shooting and hurting each other. There are people who are sitting in their homes and being abused and thinking twice about calling the police.
In this quest to bring about public safety, we have failed. I would love to see just us try to defund parts of our police departments that are completely unnecessary. The fact that it looked like Fallujah out here because people were protesting. I could at least maybe sit through the argument that we need Humvees and Howitzers, and helmets and all of this anti-riot gear for the one time in a decade that people are protesting in the streets in this way.
But I don't understand why we're spending all that money on that for every other 364 days of the year when all of these other social institutions are failing, and police officers are making overtime for standing around at construction sites.
I don't want any listener to think that I'm besmirching the police. I understand the difficulty that they are having right now. I understand how it feels to want to go to a job to do a good thing and have everybody turn around and call you all sorts of names. I entirely understand that.
What I do not understand is why we are holding onto this idea of exceptionalism when the evidence is telling us in our face that people want us to do something different. What I hope we can get to is an understanding that defunding the police is actually just reinvesting in the enforcement of laws in a different way.
If you want to take the Rayshard Brooks murder, for instance, the man who was sleeping in his car at a Wendy's, the police came, in Atlanta, and after a brief altercation, he ends up shot in the back and killed. People will wax poetic all day about what Mr. Brooks did in the effectuation of his arrest and whether or not that justified his homicide.
But I want people to take a step back and imagine the cost-benefit of what we have. Why not there be a body of people who would have responded to that scene, would have asked themselves, "What is the outcome that we want? We want everyone to be safe. Cool. Let's get Mr. Brooks home and have someone follow up with him, if he is in fact having an alcohol addiction problem and resolve that."
Just the same way that we do for every frat kid or every person who's on Cape Cod, all of us have put our friends in the car and sent them home when they were too drunk. I don't understand why Mr. Brooks didn't get that dispensation, other than he was a poor black man who was confronted by the police.
That's really where I hope that we go, that people understand that this is actually an investment in them, and that on the other side of what is uncomfortable right now in looking inward and challenging our ideas about what this job is, that after we get through that, there's beauty on the other side, there's a bigger win on the other side. It is not an individual attack on your morality or your judgment. It is an attack on a shitty house that was built on a broken foundation that we just need to tear down and rebuild.
WATKINS: Well, Adam, that's very well said, and I just want to thank you so much for coming back and being on the show once again, it's great to hear your voice.
FOSS: Of course, anytime man. If you need me, I'll be here. I appreciate what you do and appreciate your contribution to the work that all of these people are doing.