Nearly 2.3 million people live in American cages. In absolute and per capita terms, the United States incarcerates more people than any other country on Earth. There are many groups responsible for mass incarceration: politicians, judges, and police officers played their parts. But one actor is uniquely responsible: the American prosecutor. As detailed in the books Charged and Arbitrary Justice, prosecutors can exert functionally unchecked control over those in their jurisdiction who come into contact with the criminal justice system, who, as we know by now, are disproportionately poor, black, and brown.
Prosecutors are immune to lawsuits, even in cases where they falsify evidence and coerce witnesses. Most are elected, theoretically making them accountable to the public. In practice, the public doesn’t have a choice: 72 percent of prosecutors ran unopposed in 2016. Prosecutors are only required to turn over evidence to the defense that would materially affect the jury’s decision in the case, a nearly impossible standard for the defense to prove.
Prosecutors have wielded disproportionate power for over a century, but the introduction of mandatory minimum sentencing in the 1970s and the rise of the plea bargain shifted even more power towards prosecutors and away from judges, juries, and defense attorneys. Prosecutors choose what charges to bring against a criminal defendant. If a jury finds the defendant guilty of a crime with a mandatory minimum, the judge cannot sentence less time than what is required by law, regardless of mitigating circumstances.
Jury trials are an endangered species: in the last fifty years, 97 percent of federal and state criminal cases have ended in plea bargains, where prosecutors functionally choose the sentence. In the words of Angela J. Davis, the former director of the D.C. Public Defender Service, “Prosecutors are the most powerful officials in the system.”
Mass incarceration took place over decades, and ending it will be a multigenerational project. Over 40 percent (900,000) of the total prison and jail population have been charged with or convicted of a violent crime, and only 10 percent are held in federal prisons. There is no grand federal law or executive order that can undo the damage. Doing so will require local and state campaigns, reforms to policing, investment in alternatives to incarceration, and much more.
But a promising strategy may be found in the progressive prosecutor. Thanks to the discretion granted to them, prosecutors are uniquely positioned to stem the flow of people into our jails and prisons. In the case of the district attorney — a jurisdiction’s top prosecutor — the Left can weaponize the disproportionate leverage granted to prosecutors against mass incarceration. That’s exactly what Tiffany Cabán intends to do if she wins the Queens, NY district attorney (DA) race tomorrow, June 25.
If Cabán wins on her progressive platform, she won’t have to reinvent the wheel. Already, Philadelphia’s Larry Krasner has demonstrated how to lead the DA’s office in service of reform.
Krasner was a lifelong public defender and civil rights lawyer before he ran for Philadelphia DA on a radical reform platform. Krasner, who has sued the police seventy-five times, was laughed at by the head of the police union and received no major newspaper endorsements before going on to win a seven-way primary election against career politicians and prosecutors.
In his first week, Krasner fired thirty-one prosecutors who were expected to resist his reform efforts. In a memo published six weeks into his term, Krasner directed his office to stop pursuing charges for marijuana possession, largely decriminalize sex work, increase participation in diversion and reentry programs, seek the lightest sentences possible for most crimes, request less probation, and, most remarkably, state on the record the financial and social costs of the sentence the prosecutor is seeking against each defendant.
Now a Philadelphia prosecutor seeking a five-year sentence has to argue why it makes sense to cost the taxpayers an estimated $42,000 per year ($210,000 total) that could otherwise pay the salary of a teacher or firefighter for the same length of time. Krasner’s office compiled a list of police officers whose history of lying to investigators, filing false reports, using excessive force, exhibiting racial bias, and committing crimes made them unable to testify in court.
Krasner stopped seeking cash bail for the crimes that made up 61 percent of Philadelphia’s cases. This policy led to a 22 percent decrease in the number of people who spent at least one night in jail, with no increase in recidivism or failure-to-appear rates. (The effectiveness of the directive has been limited by bail commissioners who continue to assign bail in two-thirds of cases that qualify for no-bail, demonstrating the limits of prosecutorial power.) He is now the first DA attempting to reform mass supervision (probation and parole), a major driver of mass incarceration, and said last month that “we are very close” to decriminalizing all drug possession, which would be a first for an American city.
Tomorrow’s election for Queens district attorney is the next big pivot point in efforts to decarcerate the United States. Queens is home to nearly 2.4 million people (nearly 1 million more than in all of Philadelphia). Any of the six candidates running would be more progressive than the previous DA, the late Richard Brown. Brown served as a tough-on-crime prosecutor for twenty-eight years, where he was accused of going easy on abusive prosecutors and police who killed unarmed people of color. (Ten years into his tenure, Brown had disciplined just one lawyer in seventy cases of prosecutorial mistakes and misconduct). Brown’s career in criminal justice began in a much more dangerous New York. (During his first day presiding in a courtroom, a defendant shot his estranged girlfriend.)
But today’s era is one where crime has steadily dropped for decades, and the memory of Khalief Browder is still fresh. In this context, each of the six candidates is eager to appear as the most progressive. But Tiffany Cabán stands out of the crowd. Cabán is the only public defender running — the rest are career prosecutors or politicians. On the surface, each candidate is running on a similar platform: end cash bail, decriminalize marijuana, cease work with ICE, establish conviction integrity units. But as Tiffany says: “the difference is in the details.”
Cabán and Queens Borough president Melinda Katz are considered the frontrunners. Katz is term-limited in 2021 and has considered a run for mayor. She has also never tried or defended a criminal case.
Cabán has pledged to end civil asset forfeiture, decriminalize all drug possession, seek shorter sentences for felonies, support No New Jails, and decline to prosecute all “broken windows” crimes like turnstile jumping and unlicensed driving. Citing the lack of correlation between length of sentence and recidivism rates, Cabán is promising to review sentences for incarcerated people over thirty.
In contrast, Katz has promised to be transparent in how civil asset forfeiture funds are spent, support the construction of new borough-based jails following the closure of Rikers Island, decriminalize marijuana only, and continue to prosecute minor crimes “on their merits.” Katz has not supported a sentence review commission or committed to pursue shorter sentences for felonies. Cabán has pledged to withdraw from the District Attorney’s Association of the State of New York (DAASNY), a lobbying group for prosecutors that has historically blocked criminal justice reforms. Katz would remain in DAASNY.
Katz’s record as a legislator undermines the progressive image on which she is campaigning. During her time in the State Assembly and City Council, Katz supported the death penalty and sponsored legislation that boosted punishment for minor crimes. She also originally only wanted to end cash bail for misdemeanors and nonviolent felonies, before being pushed left by Cabán’s pledge to end cash bail for all crimes. (Those deemed dangerous or a flight risk are not eligible for bail).
The reforms Melinda Katz claims to support are an improvement over the status quo in Queens, but only the radical reforms being spearheaded by Cabán will begin to seriously decarcerate the borough. It may seem like safer politics to only commit to reforming the prosecution of nonviolent crimes. But doing so retreats from the real challenge before us: 58 percent of the state prison population is incarcerated for violent or drug distribution offenses.
Moreover, voters are less committed to “tough-on-crime” stances than you’d think. To test the conventional wisdom that the public pushes for “throw away the key” sentences, an Ohio judge asked twenty-two juries to recommend the sentence they thought their case’s defendant deserved. The juries’ median recommended sentence was only 19 percent of the length of the median federal sentencing guidelines.
Critics argue that these reforms go too far, and are likely to put the public at risk. But the evidence that incarceration decreases crime is weak. Cabán’s “radical” proposals would begin to bring our criminal justice system in line with that of our European peers, who imprison far fewer people for far less time, while enjoying lower levels of crime.
A meticulous meta-analysis estimated that the net impact of incarceration on crime outside of prison was neutral, and that, “at least as much evidence suggests that decarceration reduces crime as increases it.” The deterrent effect of longer sentences is minimal at best, and, while incapacitating people has some positive effect on public safety, the crime-increasing aftereffects of a prison sentence likely wipe out any gains. As the study author concludes, “the bulk of the evidence says that in the United States today, prison is making people more criminal.” And, if you care at all about the people locked up, crime inside prisons, including assault and sexual abuse, is far more prevalent than it is outside.
Cabán understands that almost every person in prison will eventually get out again. Through her career and platform, she has demonstrated the greatest commitment to keeping people out of cages and supporting programs that decrease recidivism and improve public safety. In many communities, one day’s defendant is the next day’s victim. Cabán’s approach avoids the dichotomy between perpetrators and victims, so that everyone can get the support they need.
By finding alternatives to prosecution for minor crimes, Cabán’s office would be freed up to focus on serious cases. Historically, prosecutors have trained their finite attention on those least able to fight back, declining to go after the powerful and wealthy. “Progressive” Manhattan DA Cy Vance declined to charge Ivanka Trump and Jared Kushner for fraud and Harvey Weinstein for sexual assault, despite having evidence for both charges. Soon after dropping each case, Vance received campaign contributions from lawyers representing Trump, Kushner, and Weinstein.
Cabán is the only candidate rejecting money from corporate PACs. She has received nearly half a million dollars from mostly small dollar donors. Her 6,700 contributions (more than all the other candidates’ donations combined) averaged $69 dollars. Katz’s $715,000 from 545 individual donations averaged $1,313. Katz also rolled over $859,000 from prior campaign accounts, giving her a 3 to 1 dollar advantage over Cabán. Katz is the favorite of the real estate industry, which pitched in over $150,000 to her campaign. This comes as little surprise: Katz worked as a lobbyist for developers before becoming Queens Borough president. Both candidates have pledged to go after abusive landlords, but only Cabán has refused money from them.
In addition to targeting abusive landlords, Cabán is promising to go after other actors creating the instability that causes crime, such as opioid-pushing pharmaceutical companies and wage-stealing employers. And, while other candidates pledge to cease work with ICE, only Cabán has said she would prosecute ICE agents who arrest people showing up at immigration court.
At thirty-one, Cabán is the youngest of the field, but she is also the only candidate with the relevant experience. All the other candidates have either never spent a day in criminal court or have spent their careers putting people in prison. In her seven years as a public defender, Cabán has defended over a thousand clients, charged with everything from jumping turnstiles to murder. Each candidate is promising to decarcerate Queens, but only one knows how to do so.
Five Boro Defenders (5BD), a group of NYC public defenders and civil rights attorneys, rated each candidate across a range of issues relevant to reforming the criminal justice system. Cabán received the highest overall grade of “A-.” 5BD gave Melinda Katz a “C,” stating, “Her history as a politician reveals a pro-incarceration mentality, tending to address problems by increasing penalties and creating crimes.”
Left-wing organizations and individuals have coalesced around Cabán’s campaign. She has received endorsements from the Real Justice PAC, the Working Families Party, the Democratic Socialists of America, Philadelphia DA Larry Krasner, Congresswoman Alexandria Ocasio-Cortez (AOC), and Senators Warren and Sanders, among others. Katz is the clear establishment favorite, having received endorsements from Governor Andrew Cuomo, the Queens County Democratic Party, a host of unions, and Joe Crowley, the prospective Speaker of the House who was unseated by AOC.
Whoever is elected the next DA will need to be held accountable by activists and community members. Progressive prosecutors, like all prosecutors, have nearly limitless discretion and no obligations to be transparent in how they run their offices. In the absence of legal oversight, citizen watchdog groups like Court Watch NYC have played a crucial role in holding DAs to their promises.
Despite the large amount of media coverage, the Queens DA race is expected to be low-turnout. This fact, combined with the enormous power and jurisdiction of the office, means that each volunteer, donor, and voter will have a disproportionate impact on the experience of millions of people. On June 25, Queens voters will have the opportunity to try a different kind of a criminal justice system. Or they will continue to experience the brutal machinery of mass incarceration with a fresh coat of progressive paint.