The United States sends more people to prison or jail than any other nation in the world.  Donald Trump pledged to be tough on crime, and Attorney General Jeff Sessions has pushed to reinvigorate the war on drugs. They're contributing to the mass incarceration crisis, but they didn't create it. It's the result of decades of criminal policies enacted in every state in this country.  

Local prosecutors are big drivers of mass incarceration.  Can they be part of the solution?  Udi Ofer,  the deputy national political director of the ACLU and the director of the ACLU Campaign for Smart Justice, discusses ways people can fight against mass incarceration in their communities.

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LEE ROWLAND
[00:00:04] I’m Lee Rowland. From the ACLU, this is At Liberty: the podcast where we discuss today's most important civil rights and civil liberties issues.

[00:00:22] Today we’re going to talk about how prosecutors fuel mass incarceration. The United States sends more people to prison and jail than any other nation in the world. We currently hold a full 25 percent of the world's prisoners in custody, despite making up just 5 percent of the global population. When Trump became president, he brought with him a promise to be tough on crime. His Attorney General Jeff Sessions is fully on board and has vowed to reinvigorate the war on drugs. But in that same 2016 election, Americans also voted in scores of loal candidates that ran on platforms vowing to reduce our prison population, including reform-minded district attorney candidates. Criminal justice reform advocates have taken note, and many are now focused on district attorney races in the upcoming elections as the linchpin in the fight against mass incarceration. With us today to discuss prosecutors, and their role in our criminal justice system, is Udi Ofer. He is the deputy national political director of the ACLU and he's director of the ACLU campaign for Smart Justice, which is dedicated to ending mass incarceration in the U.S. Udi, welcome.

UDI
[00:01:35] Good to be on. Thank you.

LEE
So, let's start big picture. Why are we in this place of mass incarceration and how did we get here?

UDI
Mass incarceration is a term used for a problem that really affects every part of American life. In its most literal sense, it just means the 2.3 million people who are on any given day locked up in cages in the United States. As you noted, that is way disproportionate to how other western industrialized countries treat their own citizens. And not all communities are treated alike. Mass incarceration is a problem that is mostly targeted at Black communities in the United States. How we got here? Well there's the technical answer and then there's what I think the real answer.

LEE
[00:02:23] I'd love to hear them both.

UDI
Right, so the technical answer is a whole host of policies and laws that were passed over the span of probably... beginning in the early 1970s, and dating to the late 1990s.

LEE
And are these at the state or federal level? Or both?

UDI
Everywhere.

LEE
Okay.

UDI
Everywhere. People always talk about the criminal justice system. Well, the truth is we don't have one criminal justice system in the U.S. We have thousands of criminal justice systems and criminal justice is one of the most local issues in America today.

[00:02:53] It's mostly run by local actors with their own local political incentives. And it's actually one of the reasons it's so hard to dismantle this carceral system. It’s because we're not going to end mass incarceration through an act of Congress or through a United States Supreme Court decision. We literally have to go state by state and oftentimes county by county and dismantle the policies. So what were those policies?

Things like mandatory minimums where suddenly, beginning in the late 1970s, laws were passed that said, we don't care what judges think, we're going to tell judges these are the mandatory sentences that have to be applied. There are policies like what are known as three-strike laws and habitual offender laws that said, if you are someone who was already in prison and then for whatever reason — a lot of time it's because they weren't provided any support services once they left — were convicted of committing another offense, then you would face extreme sentences, like 20, 30 years, even life without parole.

There were policies like dismantling parole systems when someone, once they were in prison it was almost impossible to get out, even if you were on your best behavior and got your college degree while in prison. Basically there were a lot more laws that were passed that criminalized activities and sentences became longer, and it was harder to get out once you were in prison. And then, once you were out of prison, there are nearly 50,000 legal restrictions on what someone who is returning back home can do — so everything from being deprived the right to vote to being deprived of the right to work, basically. So that's the very kind of legal, policy oriented. The real answer: racism and politics.

LEE
Okay.

UDI
[00:04:38] When you study the history of how these laws began to pass it is impossible not to connect it to the legacy of slavery, to the aftermath of the dismantling of the Jim Crow state, to the rise and then the backlash against the Civil Rights movement. It was really kind of Barry Goldwater, Republican candidate for president who ran against Lyndon Johnson, who first began to adopt language that actually sounds almost exactly the same as Donald Trump today:

“We need to, you know, crack down on criminals who are, you know, just ruining our American society.” And really using it in a racialized way where the images that would be displayed in the commercials for Barry Goldwater were basically of black people — or, at that time, of antiwar protesters and civil rights advocates.

He was a Republican candidate. But I actually have to say, you know, the growth of mass incarceration was historically a bipartisan issue. And I would actually even argue that one of the worst president in American history when it comes to the problem of mass incarceration is actually Bill Clinton. Some of the most egregious laws that increased sentences, tied the hands of judges, used really harmful rhetoric, was Bill Clinton during the 1990s as part of his, you know, kind of new wave of Democratic politics.

[00:05:58] But a key point of this is, if these policies were implemented against white Americans during the 1970s, 1980s — and really mass incarceration policies reached their height in the late 1990s — I don't think it would have been accepted. Politicians scored political points with the tough-on-crime narrative to dehumanize people. And that is how we ended up in this crisis today.

LEE
You've mentioned that there's a lot of kind of mini justice systems, right, and millions of people caught up in these. Can you give us a quick snapshot of where people are? Are folks caught up in county jails, state prisons? Or are they in the federal system?

UDI
So on any given day, if you just did like a snapshot of a typical day, there are 2.3 million people who are incarcerated. Of those, 90 percent are in state and local jurisdictions. So on the federal level, there are about 225,000 people locked up. About 174,000 are in federal prisons. The majority, in fact even the vast majority, of people under federal jurisdiction are in for drug offenses and property offenses. Those are the vast majority.

LEE
When you say property offenses, you mean things like stealing, right?

UDI
Yeah, so theft, burglary, so breaking into someone's home...

LEE
Mhm.

UDI
Fraud. Those are the most common ones.

LEE
OK.

UDI
[00:07:15] State prisons and local jails look very differently. There are about 1.3 million people in state prison at any given day. The majority of people who are there are actually in for offenses involving violence — so things like assault, things like robbery, manslaughter. So that's the majority of people, about 55 percent in state prison. Then you have local jails, and we're going to talk a lot about that, since district attorneys have a lot of power over local jails in particular.

LEE
Okay.

UDI
And local jails hold about 600,000 people on any given day. So these are run by the county government, city government, depends on your jurisdiction. Of the 600,000 in local jail, about 460,000 haven't even been convicted of a crime. So in other words, about one in five people who are incarcerated in America today, haven't even been convicted of a crime.

LEE
And that’s something that people refer to often as pretrial detention? Is that right?

UDI
That's right. It’s pre-trial detention. And a lot of times the reason that they're locked up even though they haven't been convicted is because they can't afford cash bail.

LEE
And what’s cash bail?

UDI
Cash bail is the system where if you are arrested, you get sent to central booking, you get fingerprinted, photographed, and then you go before a judge in what's known as an arraignment or initial hearing. And in that arraignment a prosecutor will argue — and this is how much power they have — on what should be your conditions of release while you're waiting for trial. So they could say, hey you could just go home, you know, go back to your kids, go back to your job, go home, here is a day that you need to show up to court.

LEE
Right.

UDI
Or they could say, you can go home only if you give us $100,000, or $50,000 or $2,000. And that's what's known as cash bail. The purpose of cash bail historically was to make sure that someone shows up in court after they have been arrested.

LEE
[00:09:08] And they get that money back? Is that the idea?

UDI
And they get that money back if they show up in court. And historically, you know, that made sense. Right? There needed to be some sort of incentive for a person to come back.

LEE
Right.

UDI
But what it's become is a form of what we call wealth-based incarceration, where people are being locked up because they're too poor to afford cash bail. Someone cannot afford that bail, they have to go to a loan shark, essentially, or, you know, a bail bond agent. They take out a loan that has egregious rates that are considered predatory. So let's say you were hit with a $50,000 bail. For you to be able to borrow that money, you usually have to pay a 10 percent fee. That's five-

LEE
Five grand.

UDI
...thousand dollars

LEE
Right.

UDI
Which is a lot of money for most Americans. And you will never see that money again. We have cases of people in jail for more than three years even though they're presumed innocent under the law, but they haven't been convicted of a crime, and they're just waiting for their trial. But our system is so clogged that sometimes you wait for your trial for years.

LEE
Okay.

UDI
I know those were a lot of numbers I just threw at you.

LEE
We can handle it. All right so that's a really helpful snapshot. You've already hinted at where we're headed here which is the power of prosecutors. Tell us a little bit about what they do, and how their power has increased incarceration rates.

UDI
Prosecutors are the most powerful actor in the criminal justice system and they usually go up against the least powerful actor in the criminal justice system, and that is someone who is a defendant. And the power imbalance is so crazy. So let me play this out. Let's say someone gets arrested, right?

[00:10:45] That is done by the police. The police then has to file a report and they send that over to a prosecutor's office. One of the first key decisions that a prosecutor gets to make is what do you do with this arrest. Is there really enough of evidence here to actually prosecute or should this arrest be what's known as “declined,” or basically not charged? That is a key decision point right there, where we found in our analysis a lot of racial disparities, meaning that black people are treated differently than white people right there in that decision point.

[00:11:17] The second decision point they get to make is something we already discussed, and that is bail. Prosecutors know that if someone cannot afford their bail amount, that means they're going to be in jail awaiting their trial. And guess what? When you're in jail separated from your family, from your loved ones, from your job, you become desperate. When you’re desperate, you're going to agree and plead guilty to a lot of things. But right there, they get to decide how much bail to ask, if any bail at all, of the judge.

LEE
Right.

UDI
And then the third way the prosecutors have tremendous power is what's known as a plea bargain. So one of the things I bet you a lot of the listeners of this podcast, you know, when you think of the criminal justice system they think of law and order.

LEE
Doo-doo…

UDI
Right. Totally. Right. And you get your day in court, there’s a jury of your peers. You have this amazing criminal defense attorney who is like advocating for you, a prosecutor, and a jury after deliberation comes up with a verdict.

That is not what happens. Not even close. 95 percent of guilty verdicts come from a plea bargain. That is the most important statistic that you need to remember from this show. What does that mean? It means a prosecutor makes an offer to a defendant, and then a defendant accepts the offer and then ends up either going home or, more likely, spending time in prison, in jail. So this is where prosecutors have the most discretion, in the sense of they get to decide what plea deal to offer. Am I going to offer aggravated assault or regular assault? Am I going to offer a felony or a misdemeanor? Which has extreme consequences. Am I going to use what's known as a sentencing enhancement, meaning that I want to pile on additional stuff to make the potential sentence even more egregious? And we have example after example of prosecutors saying: Hey I will offer you a plea deal of 10 years if you plead guilty to this. If you don't accept this deal, I'm going to go for 20 years, or 30 years. And we have example after example of (a) people accepting that because they're scared.But also examples of people not accepting it, then losing the case, and then being sentenced to things like life without parole.

LEE
So are these choices happening, you know, at the individual prosecutor level, the attorneys? Who sets policy? And are these folks elected?

UDI
[00:13:39] Yeah. So there are 2,344 prosecutor offices in the United States. When we usually say prosecutor, we really mean the head person of an office where there are a lot of assistant prosecutors or assistant district attorneys.

LEE
Okay.

UDI
So in all but three states —Alaska, Connecticut, and New Jersey — and Washington D.C., prosecutors are elected. Meaning that they are politicians.

LEE
Right. And they’re on the ballot.

UDI
And they're on the ballot. Now the majority of Americans don't know that they're elected.

LEE
Right.

UDI
In fact, the ACLU conducted a poll earlier this year where we found that about 50 percent of Americans knew the prosecutors were elected. But millennials in particular, the numbers were even higher in terms of not knowing that prosecutors are elected. And in fact our poll also found that even when people knew the prosecutors were elected, they would usually skip that vote because they have no idea who these people are. In fact, 80 percent of prosecutors run unopposed.

LEE
Wow.

UDI
You know, most prosecutorial races are sleeper races where the party loyalists are the only ones who vote. They run unopposed and they win with very few votes and no one pays attention. Now when they do run for office, and they do make their stump speech, historically it's almost always been a tough-on-crime stump speech, where the only statistic that they wave in front of the voters is, is how many guilty verdicts they got. Now they don't tell voters that almost all of them are through plea bargains. And that's what they run on. You know, I’m the tough-on-crime candidate. I'm going to crack down against criminals, against violent criminals, against illegals, which is language like you hear the president of the United States using. So that's the typical state, and they have tremendous power. Prosecutors can largely end mass incarceration tomorrow, if they wanted to, without a single change of the law.

LEE
What could they do?

UDI
[00:15:37] They could just stop charging people the most egregious offenses possible. They could focus on actually what we call restorative justice, and try to help the person instead of harm the person in the community. They could use diversion. So, for example, we know that the majority of people in prison have mental illness problems or drug addiction problems. Yet right now our criminal justice system doesn't treat it at all but rather just punishes people even more severely and creates greater problems. So prosecutors hold the key to that. And I will say there are prosecutors now that have been elected who are starting to change the system.

LEE
So yeah I want to ask about that. So I happen to live in Brooklyn and pretty notoriously, a few years ago, a D.A. in Brooklyn said he was not going to prosecute low-level drug crimes. That is pretty astounding, right? I mean an elected D.A. said to his community: here's a chunk of crimes I politically disagree with and my office is not going to prosecute them. Is that level of discretion normal? And is that a good thing?

UDI
It's an example of the type of extraordinary discretion that prosecutors have. And I've got to say there are even more amazing examples. So one of the races, one of the new district attorneys I want to talk about is a guy by the name of Larry Krasner.

LEE
I suspected he would come up today.

UDI
So Philadelphia, which is a city that last year elected Larry Krasner as District Attorney, has notoriously been a city that elected the most quote-unquote tough on crime DAs. In 2010, the New York Times called the Philadelphia District Attorney America's deadliest D.A. Because the district attorney was someone who sought the death penalty the most times than any other district attorney. By the way, that again shows you like the power of district attorney.

LEE
[00:17:26] They get to make the call about whether or not to charge someone with a capital offense.

UDI
Yeah. Which is literally a life and death situation. So that was as recently as 2010. Then the current D.A. in Philadelphia, the D.A. that preceded Larry Krasner, resigned from office. So we suddenly had an open-seat district attorney race, which by the way is really rare. So the ACLU and other organizations decided to engage in massive voter education in that race. We targeted 11,435 ACLU members who live in Philadelphia. We did more than 26,000 door knocks. Philadelphians elect Larry Krasner as their next district attorney.

LEE
And that was, from your point of view, a success? Can I assume that Larry Krasner was the candidate that lined up closest with the ACLU’s position?

UDI
Well I will say, yes, Larry Krasner is someone who was a civil rights attorney, never been a prosecutor, had sued the police department multiple times for civil rights violations, and he wore it on his sleeve as a point of pride.

LEE
Wow.

UDI
One of the first things that he does when he takes office is fire 31 prosecutors. Why? Because they didn't share his vision for ending mass incarceration. Then within the first few months of being in office, he issues a five-page memo, and I know a five-page memo doesn't sound exciting, but this was one of the most exciting things I've ever read in my life. The memo was an internal memo that eventually got leaked out.

LEE
Something only a lawyer could say, sorry.

UDI
It got eventually leaked out and it was titled, basically, here's how we end mass incarceration in the city of Philadelphia. And it did things that were revolutionary. So, for example, we just talked about plea bargains, right?

He told his line prosecutors, so people who work for him, that he wants them to do the opposite. That when you're engaged in negotiations, always go for the least egregious charge. So for the least severe charge. And he kind of flipped around the whole thing. And he said that's because our role is actually to have fewer people in prison and to have fewer people in jail. Another thing that he did which is also revolutionary, he said, whenever my prosecutor tries to get a sentence, you have to say how much is this going to cost the city of Philadelphia and why is that cost worth it.

LEE
Fascinating.

UDI
[00:19:41] In Philadelphia, to hold someone in jail or a prison, it's about $45,000-60,000 a year. So he said, if you're going to, if you are going to seek a 10-year sentence, you need to justify why should the taxpayers spend $600,000 on this when that $600,000 dollars can be used to hire more hospital workers or teachers.

LEE
And I suspect that that's pretty revolutionary in the sense, it's my understanding, that generally prosecutorial offices are not in control of the budgets that pay for the incarceration that their policies result in, right?

UDI
Right, not at all. That's actually a very good point. Thank you for raising that. Prosecutors, they don't care. They could be spending millions upon millions, in fact are, of American taxpayer dollars yet they face no consequences whatsoever. And that is why what Larry Krasner in Philadelphia did is so important. But I also want to say Larry Krasner is not the only reform district attorney at this point. Kim Fox in Chicago, or Cook County, is another kind of revolutionary, amazing district attorney who is changing the system there. One of the things that she did — and she was elected about a year before Larry Krasner was — but one of the first things that she did was actually tell her line prosecutors not to pursue felony charges for shoplifting anything that's less than $1,000.

LEE
Wow.

UDI
She also directed her line attorneys when bail option was $1,000 or less, not to pursue cash bail at all. So it just shows the extraordinary power that prosecutors have.

LEE
Are there any stories that stand out to you about the dark side of that discretion?

UDI
Oh wow there's so many. First of all, of the nearly 2,400 prosecutor offices out there, it is our view that most of them are not doing a good job. In the sense of they act in total secrecy, no accountability, and their goal is just to send more and more people for longer and longer prison sentences. But there are standouts and we're suing them. So one of them is actually a Democrat, and one of the points I really want to make here and emphasize, Republicans and Democrats, are not good on this issue or historically have not been good on this issue.

[00:21:57] So there is a district attorney, a Democrat, by the name of Leon Cannizzaro, who is the district attorney for New Orleans or Orleans parish, which includes the city of New Orleans. And he's one of the worst in the country. And we sued him last year for his practice of using fake subpoenas, yes fake subpoenas, which means that he was sending these really threatening looking pieces of paper to crime witnesses and crime victims and telling them that, you need to come to my office and answer a bunch of questions. If you don't, you're going to end up in jail. And this was a totally fabricated or a fake system. The subpoenas were bogus. And people ended up in jail, when they refused to be interrogated by his staff.

LEE
Please tell me that's not legal, Udi.

UDI
Well it's not legal, which is why we’re suing. And our lead plaintiff is a woman by the name of Renata Singleton who is a domestic violence victim who got one of these fake subpoenas and when she refused to testify, she ended up spending five days in jail. It's really, it's crazy.

LEE
And this is a victim? To be clear, this is a victim of crime?

UDI
This is a victim. But he's also known as one of the worst prosecutors of sending people to decades in prison for things like stealing a bicycle, if it was their third offense. Louisiana has some of the worst kind of three-strike laws out there.

LEE
And that just means if you're convicted of a third offense, you basically do serious time, right?

UDI
Like, like decades time. And the three offenses could be, you know, minor offenses, it didn't matter if it was your third offense. That's how much discretion a district attorney has. And in a lot of these cases, by the way, judges are so uncomfortable with this, and they say on the record that they're uncomfortable with it, but their hands are tied. Louisiana until a few months ago had the highest incarceration rate in the world.

LEE
Ooof.

UDI
They're very proud of the fact that Oklahoma surpassed them. Now Oklahoma has the highest incarceration rate in the world, and Louisiana has the second highest incarceration rate in the world. But in all seriousness, the reason, you know, Oklahoma actually, you know, beat now Louisiana is because Louisiana has started to pass reforms. Their governor there is actually someone who's committed to criminal justice reform. He hasn't gone as far as we'd like for him to go, but he's gone pretty far, particularly in a state like Louisiana. And it's been done in a bipartisan manner.

LEE
[00:24:26] You've mostly focused on the local and state prosecutors. As I mentioned in the intro, we’re in a weird period of time where the federal government and Attorney General Jeff Sessions has said unequivocally they're tough on crime, they're going back to the war on drugs, you know, full steam ahead. How does the federal prosecutorial system fit in to everything you're talking about?

UDI
Yeah. So I think, you know, in two ways. First of all, there are, you know, 200,000 people who on any given day are under federal jurisdiction. Now, when you compare that to the 2.3 million people, it may not feel like a lot, but it is a lot. Secondly, the tone for the nation is set by the federal players. So when you have a president in the United States trying to dehumanize people by just calling them criminals, or predators or illegals, it harms our work on the local level. It's like a stamp of approval for this outdated, disproven strategy. Attorney General Jeff Sessions is actually worse than Donald Trump in that he's issued new policies or rolled back past policies that are going to lead to even more people in federal prison. President Obama was the first president to preside over a reduction in the federal prison population.

Now he didn't go as far as we wanted him to go, but he did implement reforms. And one of those reforms was a 2010 memo. I always talk about memos. We lawyers, we like memos. You know he issued a memo in 2010 that was known as the smart on crime memo, that essentially told his prosecutors, particularly in drug offenses, to not go for the highest charge possible — so a bit similar to what Larry Krasner did in Philadelphia — and that even encourages prosecutors when mandatory minimum laws would get triggered because of a certain weight of a drug, to not include the weight of the drug in the charging document, so that not to trigger mandatory minimums. And it was really revolutionary. And you saw about a 25 percent reduction in mandatory minimum charges on the federal level. One of the first things that Attorney General Jeff Sessions did is rescind that memo, and said, nope, I'm going to tell you guys to go after the highest offense possible. And it's part of his, Jeff Sessions, vision of doubling down on the failed war on drugs.

LEE
Right.

UDI
Every piece of data and analysis shows that the war on drugs has failed. Yet Jeff Sessions has doubled down on it and it's one of the ways. So the federal government matters in the sense of they set the tone for the country.

But the battle to end mass incarceration is going to be won in the states. And that's where we need people in every single state to get involved in the movement.

LEE
[00:27:11] And are you hopeful?

UDI
When we talk to voters and tell them about this, they are interested, they get engaged. And they're like, I had no idea, I'm now going to vote in this race that I normally would not vote in. Right, so a lot of times the way this happens is that there is a high profile race, let's say for senator, for governor, or for mayor. And voters will vote in that race. But then there's a lot of races under that line and that's where voters are usually just like, I have no idea…

LEE
I've never heard of that person, I’m going to skip it.

LEE
So you think, necessarily, if people pay attention to these races, understand what's at stake, and how much discretion prosecutors have, that can only be good for the system going forward?

UDI
The truth is on our side. And what also makes me hopeful is also despite the fact that Donald Trump and Jeff Sessions are terrible on these issues, this movement in the states is still a genuinely bipartisan movement. We are winning in the states and we're winning with Republicans and Democrats working together.

I mean there is not a month that goes by where there isn't some victory in the states to begin dismantling mass incarceration. In almost every state it's being done in a bipartisan way.

LEE
Fabulous. Udi, thank you so much for being here.

UDI
Thank you.

LEE
Do you want to tell people where they can find out more about the campaign for Smart Justice?

UDI
[00:28:28] Yeah, if you just log on to ACLU.org/SmartJustice, it will take you to our page about our issue and, go on to VoteSmartJustice.org to sign up to learn where candidates for office in your jurisdiction stand on criminal justice reform.

LEE
Excellent.

[music]

LEE
Thanks for listening. I’m Lee Rowland, and this has been At Liberty. Be sure to subscribe and, if you can, review the show – we’d love to hear from you! Thanks so much.