Time for a Referendum on America’s Criminal Injustice System

Prosecutors like to say they are engaged in a search for justice. Many are. But while reporting on criminal courts in California over the years, I’ve seen too many doing the opposite.

As a young reporter in Oakland, I watched how white prosecutors, judges and cops convicted and sentenced many young African American men, who were treated as targets by city law enforcement. That’s where I began to understand that what was portrayed as the criminal justice system often was really a system engaged in criminal injustice.

Decades of such persecution resulted in protests during the 1960s, mainly by the Black Panthers. The Panthers were brutally suppressed by law enforcement, but protests continued. Today, this protest has taken the form of a national movement to reform local prosecutors’ offices around the country, moving them out of a heavy “lock-them-up” mode.

It is one of the most significant, if underreported, political developments in the country. As Emily Bazelon describes it in her important new book, “Charged”:

A movement of organizers and activists and local leaders and defense lawyers and professors and students and donors is … working to elect a new type of D.A. in city after city and county after county. The movement is a groundswell. It’s growing. And it’s causing the first major shift in the politics and incentives of American prosecution in decades.

All this is being played out in Tuesday’s primary election for district attorney of Los Angeles, the largest D.A.’s office in the country.

The district attorney, Jackie Lacey, the first African American and first female county chief prosecutor, is being challenged by two opponents who fit the mold of the reform movement. The best known is George Gascón, a former San Francisco district attorney and top Los Angeles Police Department commander. The other candidate is Rachel Rossi, a former Los Angeles County and federal public defender and congressional staff member specializing in criminal justice policy.

Their contest is a microcosm of the controversy over the role of prosecutors in today’s society.

Lacey worked her way up through an office dominated by old-school attorneys who share a hard-line approach long favored by the area’s two biggest law enforcement agencies, the Los Angeles Police Department and the county sheriff’s department.

Celeste Fremon, editor of the authoritative website WitnessLA, said it is a fight over whether the prosecutor should “seek justice rather than victory. That has not been the case in this office for quite some time.” The current D.A.’s office, she told me, has “the old-fashioned, law-and-order mindset.”

Gascón has a law enforcement background that’s deeper than Lacey’s. He was a Los Angeles police officer for 27 years, rising to first assistant chief under William Bratton. Gascón then became chief of the Mesa, Arizona, department, where he battled the anti-immigrant sheriff of the county, Joe Arpaio. He then moved to San Francisco as police chief, and later district attorney, leaving that job to run for L.A. County D.A.

Rossi lacks such street experience. But in a debate with Lacey and Gascón last month, she showed a command of the issues, hitting those that bother the community most, such as  homelessness and mentally illness.

The difference between Gascón and Lacey is illustrated by their positions on a ballot measure that reduced some felonies to misdemeanors. Gascón favored it, while D.A. Lacey was opposed. Gascón and Rossi want to eliminate cash bail; Lacey wants to modify it. Gascón and Rossi oppose the death penalty; Lacey favors it.

These and other points by Gascón and Rossi reflect the policies of the justice reform movement, a coalition of groups funded by grassroots contributions and wealthy donors such as George Soros. In general, the reformers want to end arrest policies that discriminate against Latinos and African Americans; halt mass incarcerations that have resulted in five to 10 times more people imprisoned in this country than in other liberal democracies; and reverse the convictions of people found to be innocent, efforts usually opposed by prosecutors. They also want to energetically investigate cases of police officers who shoot suspects and to prosecute cops who kill without apparent justification.

In the case of Los Angeles, there is a reluctance to file charges against such officers, WitnessLA’s Fremon said. “It too often feels [like] there is a two-track justice system. Law enforcement is treated differently than anyone else.” She added, “The wealthy are [also] treated differently.”

Because these efforts are taking place during a presidential election, they are not getting enough national attention. And with the sharp decline of hometown newspapers, they are also being shut out of local news coverage.

Yet the role of county and city prosecutors reaches into the deepest currents of American life.

In “Charged,” Bazelon writes, “American prosecutors have breathtaking power, leading to disastrous results for millions of people churning through the criminal justice system. Over the last 40 years, prosecutors have amassed more power than our system was designed for. And they have 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 and brown, and long ago passed the level required for public safety.”

I’ve seen how it works with the arrests of the mentally ill. Los Angeles County imprisons 18,000 in its jails, and 30% of them are mentally ill. Most are on various forms of medication.

A substantial number are homeless. For them, jail is a revolving door; they are arrested for minor drug offenses, such as relieving themselves on the street or fighting. This is followed by release to the streets and then back to jail, often on poorly administered medication.

That’s how the prison system grows to an unmanageable size. The criminal justice — or injustice — system isn’t overtly as crudely racist as when I was introduced to it in Oakland many years ago. But what stirred the Black Panthers into action remains deeply embedded. A mandate to arrest and convict, rather than rehabilitate, guides prosecutors around the nation. The effort to change this attitude is one of the most pressing items on a national reform agenda.