At times, one should proceed with caution and not set the house on fire, but we also have to realize that a lot of rooms in that house are burning right now. I am a believer in dramatic change.
The movement to elect reform-minded prosecutors has been around long enough and scored enough victories that progressive district attorneys now have their own support network, Fair and Just Prosecution. It brings together like-minded, newly-elected prosecutors in support of policies to reduce incarceration and promote fairness and compassion in the criminal justice system.
The idea is to deploy those policies from arguably the most powerful perch in the justice system: local prosecutors’ offices. Miriam Krinsky, a former 15-year federal prosecutor, is the executive director of Fair and Just Prosecution. In conversation with Matt Watkins—part of New Thinking's series on the power of prosecutors—she gives a national perspective on the new wave of elected "progressive prosecutors," and on the challenges confronting a reform movement that has grown more rapidly than most of its proponents could have envisioned.
One of those challenges, Krinsky says, is ensuring the "starry-eyed idealists" who want to transform the justice system get the message about the best place to make that change. "We need a new generation of passionate law students," explains Krinsky, "who recognize that the biggest difference they can make as criminal justice reformers is to go and work in a prosecutor's office."
Resources and References
- 'There’s a Wave of New Prosecutors. And They Mean Justice,' an op-ed in The New York Times from Emily Bazelon and Miriam Krinsky (12/18)
- '21 Principles for the 21st Century Prosecutor,' Fair and Just Prosecution's how-to guide for the progressive prosecutor (12/18)
- 'Eliminate court fines and fees that penalize poverty,' Krinsky and Lisa Foster, co-director of the Fines and Fees Justice Center, writing in USA Today (01.19)
- 'How a New Generation of Prosecutors is Driving Reform Outside of Congress,' Brooklyn D.A. Eric Gonzalez and Krinsky writing in The Hill (02/18)
- An example of an "Issues at a Glance" brief from Fair and Just Prosecution: Bail Reform
The following is a transcript of the podcast:
Matt WATKINS: Welcome to New Thinking from the Center for Court Innovation. I'm Matt Watkins. Our focus today is the quite remarkable fact that the movement to elect reform-minded prosecutors has now been around long enough, and it has scored enough victories, that it has its very own national support network, and that is Fair and Just Prosecution. It brings together newly-elected, like-minded prosecutors to share resources and support policies designed to decrease the impact of the criminal justice system.
The idea is to deploy those policies from what is arguably the most powerful perch in that system: local prosecutors’ offices. To talk about that work, and to get her take on the current state of the movement to elect more 21st-century prosecutors, I'm very happy to be joined in studio today by the executive director of Fair and Just Prosecution, Miriam Krinsky. Miriam, thanks so much for being here.
KRINSKY: Happy to be here. Thank you for the attention to these issues.
WATKINS: Just before we get started, I should say that we here at the Center are partners to your work, somewhat. We offer you administrative support and do some research, though I am not myself involved in that work.
We're here to talk about the next generation of prosecutors, but you were a long-time prosecutor from what we could call a previous generation. You were a federal prosecutor for 15 years, I believe. What did you learn in that role over those years and how did that lead to your decision to found a group like Fair and Just Prosecution?
KRINSKY: I was a prosecutor. I prosecuted in the '80s and '90s. It was a period where we saw a ramp-up of penalties, especially in the federal system—the so-called “tough on crime” mentality that started to permeate prosecutors' offices and unfortunately communities as well. What I saw were the advent of the sentencing guidelines, a response to how things were being depicted as crack cocaine started to hit the streets.
I saw more and more young people, especially young boys of color, entering the justice system, and really families destroyed, communities decimated, and intergenerational patterns where it wasn't simply the damage that was being done to the individual but it was the ripple effect, almost the pebble in the stream effect on that individual's children often, siblings, and other members of the community that at the end of the day, with all of that, just wasn't making communities any safer.
So, it left me with the view that we needed to do things better, that it was something that was sort of that definition of insanity. We're doing the same thing over and over again and presuming that somehow we were going to end up in a different or better place—it was just wrong. So, when I left, I left to work with young people because I felt that we had missed windows of opportunity where we could make a difference in people's lives and that time was something that I wanted to better engage in rather than continuing to fuel an incarcerative process that was losing people into a dark tunnel.
WATKINS: What exactly were you told as an incoming prosecutor? What were you told your job was?
KRINSKY: I actually felt and continue to feel very positively about my old office. I do think that we were told that our job and our obligation was to further the interest of justice and to try to do right by our community. I think the problem was part of the system and the set of laws that we were constrained by.
Certainly after 9/11, because I stayed through just after 9/11, things did start to change in terms of the attitude of what federal prosecutor should do and focus on and it was at that moment that it became crystal clear that it was hard to keep doing what I was doing.
WATKINS: When you say that as an incoming prosecutor, you were told that your goal was to seek justice. It's a sort of slogan, if I can say that, of your own association that the job of the prosecutor is not to seek convictions per se, it's to seek justice. Justice of course is in the eye of the beholder. Do you have the sense that how prosecutors think about what justice is has evolved from the time you started as a prosecutor to now?
KRINSKY: Absolutely. I think that there's now a growing understanding that prosecutors need to own more and not be reactive and not be comfortable with a criminal justice system that presumes that incarceration is the right way to attend to things, such as mental illness, or manifestations of poverty, or substance use disorder.
So, I think finding a conceptualization of justice that says to prosecutors, "You need to be part of building the trust of your community. You need to be part of recognizing that people deserve second chances. You need to advocate for a smaller footprint of the justice system so that we don't start to create a status quo that is too embedded in self-perpetuating itself.
WATKINS: It sounds like you're urging prosecutors to make better use of their discretion and this word has come up a lot in this series on prosecutor power—what some people view as the unfettered discretion exercise by prosecutors. There are those who think, "Hey, maybe we need to put some guardrails on that discretion and regulate the power of prosecutors." Then there's a competing progressive school of thought that says, "No, in fact, we just need to urge prosecutors to be using that discretion better." I'm wondering where you and Fair and Just Prosecution come down on that big picture question?
KRINSKY: Right. So, interestingly, I don't look at those views that you articulated as opposite sides of the coin…
WATKINS: No, they're not necessarily.
KRINSKY: …or even really in tension with each other. So, I do think guardrails are needed. I may not agree with John Pfaff that we need guidelines for prosecutors. And part of that is I lived through the nightmare of sentencing guidelines and realize that sometimes guardrails strip a process of the humanity of the individual and constrain people to a point where it's about addition and mechanics rather than the person. So, I do think guard rails are needed. I think more transparency is needed so that prosecution is no longer a black box that the community has no ability to know or understand or even be aware of and hold people's feet to the fire.
WATKINS: So, releasing more data for example on who your office is charging and how decisions are being made.
KRINSKY: Absolutely and being transparent in policy choices that you're making: this is where our priorities are; this is where we're looking to move; this is where we're no longer going to use the clout of the justice system to respond.
No prosecutor has resources to prosecute everything. So, inherently they do control the front door and they make choices.
WATKINS: You have this national perspective obviously in the role that you have of how different prosecutors’ offices are addressing different challenges. So, if we could just look at some of the series of challenges that offices deal with and what are some of the different ways they can take it on. Another big theme of the series has been the issue of violence and offenses involving violence and that if were really going to address this era of mass incarceration, we're going to have to take a new approach both to offenses involving violence and the people who are charged with them. So, what can you offer a new, reform-minded prosecutors who's out there as some possibly successful ways of taking a new approach to the issue of violence.
KRINSKY: I think the first thing that we try to offer is the view that this so-called violent/non-violent dichotomy is an unfortunate and overly-simplistic and illusory one. Is an individual who is in the midst of a mental health crisis and assaults somebody a violent offender? Is a young person who lives in a community where they simply don't trust the police, and there may be very good reasons for that, and the neighborhood is one such that for them to feel safe, they need to carry a gun or some other weapon because otherwise they really are fearful for their security—is that an individual that we should give up on or deem a so-called violent offender?
Are all of those individual examples of situations where long terms of incarceration make anything better off? If we’re not dealing with the underlying problem, we're not making things better.
So, I do think examples that we've seen, that we try to bring to the group, of ways to deal with those underlying problems, of ways to try to work with the individuals who are most at risk and put them on a different pathway, and I think that there are models out there that can be replicated. So, we're trying to bring that thinking to this group of DAs and to encourage them and I did appreciate John talking about this on your podcast series that I would encourage folks to listen to.
WATKINS: That's John Pfaff we're saying, right?
KRINSKY: Correct. So, I appreciated the fact that John observed that many of our jails are filled with these individuals, these so-called violent offenders, and that for those who think about criminal justice reform, it's easy to pick off the low-hanging fruit and say, "I'm going to look at low-level non-violent offenses and we're going to divert those." But often, we have the best opportunity to bring about change, for the individuals that are now, many of them, serving long periods of incarceration that don't need to be there anymore, and that eventually are going to come back to our community. They’re going to be at high-risk of recidivism. They're going to be no better off and in fact, in many instances, more destabilized, and a greater safety risk to our community than when we put them into custody in the first instance. Those are the kind of examples, I think, of where opportunities abound and where we really can and should be changing lives for the better.
WATKINS: How about the issue that is in the news a lot these days, in part because of the members of your network, which is conviction integrity? Meaning essentially prosecutors’ offices going back in time and looking at sentences and realizing, "Hey, this is somebody who was most likely wrongfully convicted." Whether it was because of dubious testimony from a police officer or dubious prosecution practices around discovery laws about the release of evidence and the like. Are there some best practices emerging out there for how we deal with conviction integrity and maintaining trust in justice?
KRINSKY: I think the first best practice is just do it. You asked me earlier, Matt, what is the definition of justice. I think one thing we have to be willing to embrace is the notion that justice doesn't have an endpoint. That just because a case has reached the point of conviction, a prosecutor's duty to ensure that justice was done doesn't artificially end.
I think the first thing we've done is try to encourage members of our group, individuals, prosecutors we work with, to make sure that their office has some process in place to give those sorts of convictions a fresh scrub when there are reasons for concern. Most of the DAs we worked with did not have any process like that in place in their offices when we first started engaging and working with them. Now, the vast majority do. So, something exists where there was nothing before and that's huge.
I think the second thing that we've been encouraging them is to create it in a way where it has a direct line to the DA, to the very top, where there's sufficient independence, where the lens isn't limited to only cases where people are still in custody, or where the appellate process has run its course, or even limited to only felonies, that if we really believe in ensuring that justice has been done, any conviction should be entitled to second looks when there's reason for concern.
I think the final area that we're interestingly seeing some appetite in a wonderfully exciting way among DAs that we work with for new pushing-the-envelope innovation is giving extreme past sentences a second look. Just as we should look backward and correct convictions that lacked integrity, if somebody serving a sentence, perhaps in a three-strike sentence or a life sentence, for conduct that today we would never impose that sentence for or somebody serving a sentence and they've been in for decades and they no longer pose a risk to the community and they're there biding their time and we're paying for them to be there biding their time and they can safely be returned to the community, we need some process in place to be able to give those sorts of situations a second look as well.
WATKINS: An issue that I think motivates a lot of reformers and activists is the endemic racial disparities of the criminal justice system. Of course, that question really takes in the system writ large. I'm sure this is something your group has done a lot of thinking about. Are there some proven or again emerging strategies that prosecutors can use to try to attack that problem?
KRINSKY: Well, I think there are a couple of things. I think as a starting point, prosecutors need to recognize that this is a problem and to call it out, to be willing to have the conversations.
WATKINS: To name it.
KRINSKY: To name it. Until we name it, we're not going to address it. So, we've seen prosecutors like Tori Salazar in San Joaquin start to engage in a conversation with her community where she's gone out and essentially said, "We are responsible for this shameful history in our country of racial inequities." Just as some law enforcement leaders have started to apologize for past shameful racist history in our country, prosecutors need to own and apologize for that. Offices need to track it and to be aware of instances and certain offenses and patterns that they otherwise are blind to, if they're not tracking that kind of data.
WATKINS: The metrics matter.
KRINSKY: The metrics matter. I think prosecutors also need to ensure that their offices are reflective of the rich diversity of our community. Racial diversity of our community, the socioeconomic diversity of our community…
WATKINS: The life experiences.
KRINSKY: Exactly. Including looking for ways to include in their offices individuals who have lived experience in the justice system, and ensuring that individuals in their office are kept proximate to those voices. No one should ever as a new prosecutor go in and advocate for somebody's placement in a prison or jail unless they've walked those hallways and seen what those facilities are like. Prosecutors shouldn't be advocating or pursuing a pathway for their cases until they've talked to people who have walked down the pathways before.
WATKINS: Your organization is made up of the elected heads of these prosecutors’ offices. These are the faces of the offices, but then they're not the ones generally who are in the courtrooms prosecuting the cases and making those decisions. Those are very often young incoming assistant district attorneys, possibly in their first job out of law school. So, how much support are you able to give to your members at the head of these organizations to ensure that the kind of change you want to see is making its way all the way down? If indeed change even starts from the top, maybe it needs to bubble up from the bottom.
KRINSKY: I think it needs to be both and everything in between. Often change dies at middle management level. So, I think there needs to be change from the top down. The leader sets the tone.
But I think we also need change to happen from the bottom up. We need a new generation of passionate law students who believe in criminal justice reform and recognize that the biggest difference they can make as criminal justice reformers is to go and work in a prosecutor's office and to bring that hopefully starry-eyed idealism to the table, and to not have that thinking extinguished by a culture within an office that can at times be quicksand that draws people back to the status quo.
So, I think we need to be finding a different new generation of individuals to go into prosecutors' offices. We need metrics that judge them differently, that don't look to evaluate their performance based on how many trials they've had, how many people they've indicted, what their conviction rate is, but looks at a new set of measurements around how often are you in the community, how respected do people feel by you—defendants, as well as witnesses and victims—what are you doing to prevent and divert people from the justice system. So, different ways to measure them, different ways to train them, and then just a different culture in the offices. I think we're seeing those things happening in a field, in a profession that I think is a wonderful one but had started to move sort of in the wrong direction. I think we're now at an exciting moment where it's finding a new equilibrium.
WATKINS: Do you think those starry-eyed idealist coming out of law school, are they wanting to be prosecutors? I mean given the historical reputation of prosecutors, I would imagine finding those people sometimes is a bit of a challenge.
KRINSKY: It's changing. I think it has been and FJP just put in place last year a summer fellows program where we've been looking for those law students. I think the first year we went out looking for summer fellows at a couple of law schools. There was some skepticism. I think now we're seeing the numbers growing as people have role models that think differently and also look differently. The old paradigms where 95 percent of elected prosecutors were white males is not today's reality. We work with elected leaders who are majority women and majority elected DAs of color. That's remarkably different.
I think we're seeing an excitement, not simply among communities and voters that are putting these new leaders in place, but it's also seeping into law schools.
WATKINS: When you talk about a 21st century prosecutor taking over an office and needing to set a new tone, obviously there's a range of approaches to how aggressive one is in setting that new tone. At the end of the day, no matter how progressive you are as a prosecutor, any change you make is going to be slow and incremental when we’re talking about such a big and entrenched system like the criminal justice system. Also, at the end of the day, a prosecutor needs certain institutional relationships in order to do his or her job, whether that's with the police or the court system. So, I'm sort of struck by this danger perhaps of going too quickly in reforms and potentially damaging institutional relationships you need. I just wonder if you've seen a range of approaches to that problem and if indeed you even think it is a problem.
KRINSKY: I think there's value in recognizing and understanding the ecosystem within which you work. But, having said that, I think for too long we've seen elected DAs use that as a reason to not move forward on reform or hit reset buttons, because they're too worried about what will the judges think, what will law enforcement think. At times one should proceed with caution and not set the house on fire, but we also have to realize that a lot of rooms in that house are burning right now.
So, I am a believer in dramatic change. I think that elected DAs now have the opportunity to do some pretty powerful things pretty quickly. I also think that they may find that they would be surprised by just how many people out there support that. They have the wind of reform at their back. They were elected by communities that want to see things done differently. Often there are members of law enforcement departments and other parts of the criminal justice ecosystem or the health ecosystem or the public mental health systems within which they work, who have a been dying to see DAs stand up on some of these issues and do things differently.
There are a lot of cops who don't want to be arresting people for smoking marijuana on the street or driving with suspended licenses or acting out in the midst of a mental health crisis. That's not why they became law enforcement officers. There are a lot of public health officials who don't believe that we should be criminalizing opioid addiction or substance use disorder and that public health has a lot more to offer in solving those problems than the criminal justice system.
WATKINS: I would say the revelation of that appetite has been surprising just in the last couple of years. In fact, it was something I wanted to ask you about was as someone who's been part of the system and working to improve it for so long, how do you account for what has been this dramatic change of sorts in the last couple of years with this kind of wave of elections of progressive-minded prosecutors and what seems like a sudden surge in scrutiny of prosecutors and the sudden revelation of how much power they actually wield within the system? Has it surprised you how quickly this movement has snowballed?
KRINSKY: It hasn't surprised me, but I’ve found it heartening. I maybe wouldn't have suspected when I left prosecution in the early 2000s that we would make our way here. I think it's the result of the fact that voters are tired of spending money on incarcerating people—billions of dollars that we could use much more wisely in other ways. I think now it's also hard to find a family that hasn't been impacted by the criminal justice system. Our justice system has gotten so large, that it's hard to find communities that haven't seen the damage that it can do.
So, I think there's more wisdom. I think that there's more frustration. I think there's been more impact of the damaging effect of the justice system. I think there are now more models in other parts of the world that have done things differently and seen crime drop, and there's been more science around juvenile and adolescent brains and other areas that we can look to and say, "We now know what we do hasn't been the best response or the right response."
WATKINS: As the director of a professional association for progressive prosecutors, does it concern you at all that there is so much pent-up expectation now for what these newly-elected prosecutors are going to be able to do, that there's a danger perhaps of people almost expecting too much and change to happen too quickly. It's not a very galvanizing message, I suppose, but whether there needs to be some kind of outreach on the fact that changing systems takes time.
KRINSKY: I think that is a valid concern. The expectations for this new generation of leaders is very high. Change doesn't happen overnight. What took decades to build isn't going to be unraveled in a matter of a year or two. On the other hand, I like the fact that there are high expectations. I like the fact that the group that we work with has a fire burning beneath their feet. I think that it's going be a counterweight to some of that slow-as-molasses tendency of bureaucracies to respond.
So, I think it's a positive thing that expectations are high and that the voter mandate has been pretty loudly articulated. I hope that volume stays at full throttle, because I think it's going to encourage them to see that that wind I referred to previously is at their backs. That people do want to see things change and change quickly, and it gives that loud, ever-present message that I alluded to earlier that lives are impacted every single day they keep doing what their offices and systems have done. So, perhaps realistic expectations are useful, but patience isn't always the right response when systems have not necessarily done right by individuals up until now.
WATKINS: Well, Miriam I want to congratulate you first on the success of Fair and Just Prosecution and some of the remarkable work of your members. Then of course, thank you so much for being here with us today.
KRINSKY: Thank you, and thank you for the interest.
WATKINS: I've been speaking with Miriam Krinsky. Miriam is the executive director of Fair and Just Prosecution. To find out more about her work and all the previous episodes in our series on the power of prosecutors, some of which you've heard referenced in our conversation, you can find out more by visiting our website. That's at courtinnovation.org/newthinking. Technical support today from the unflappable Bill Harkins. Samiha Meah is our director of design. Our theme music is by Michael Aharon at quivernyc.com and our show's founder is Rob Wolf. This has been New Thinking from the Center for Court Innovation. I'm Matt Watkins. Thanks for listening.