JASON KREAG: Welcome to the
James E. Rogers College of Law.
I'm Professor Jason
Kreag, and I'm
pleased to welcome all of you
for the 10th annual Darrow K.
Soll Memorial Criminal
Law and Justice Lecture.
I'd also like to welcome those
of you who regularly attend
our Wednesday weekly
speaker series sponsored
by the Program in
Criminal Law and Policy.
Each week, the college
hosts a discussion
from experts in the field from
judges, prosecutors, defense
attorneys, formerly
incarcerated individuals
who join us to speak
about important issues
with our community.
If you're interested in learning
more about this speaker series,
please contact me
after the event.
The Soll Memorial Lecture
has become an institution
at the college.
And I think we're set to hear
another provocative and moving
talk today.
Darrow K. Soll was
a 1991 graduate
of the University of
Arizona College of Law.
And among the important
accomplishments in his life,
Darrow was an
outstanding attorney
who worked tirelessly to promote
justice in the criminal justice
system.
Given Darrow's
work, it's fitting
that we are going to hear today
from Angela Davis, Professor
of Law at American University
of Washington College of Law.
And Professor Davis
asked me just to clarify,
there might be one or two
of you in the room thinking
that this is different
Angela Davis here
to speak to us this afternoon.
It's not Angela Yvonne
Davis, but nonetheless, it
is Angela Davis from
Washington, DC, who
carries her own powerful voice.
Professor Davis has had
a distinguished career
as a lawyer, a
teacher, and a writer.
In each area, she's challenged
us to examine, predictably,
how the state exercises its
immense and unmatched power
in the criminal justice system.
Professor Davis's work
has focused specifically
on the role of the prosecutor
in the modern criminal justice
system.
In doing so, she's explored
several profound questions,
including what role
should prosecutors play
in ending mass incarceration.
Has the institution
of the prosecutor
evolved to a point where
it has consolidated
too much power in the system?
And how should the
system, and all of us,
respond when prosecutors
abuse their power,
or become unresponsive
to the community?
Throughout her career
as a teacher and lawyer,
Professor Davis has also focused
on the vast racial disparities
that continue to plague
our justice system.
This focus is most recently
explored in her 2017 book,
Policing the Black Man.
Professor Davis's powerful
voice commands our attention.
She built it as a
public defender,
and later as the executive
director of perhaps the best
criminal defense organization
in the country, the Public
Defender Service in the
District of Columbia.
Her voice continues
to be important
as she trains countless
students and budding attorneys
who aspire to protect
the Constitution
as public defenders.
But you don't have to
take my word for it,
for how powerful Professor
Davis's voice is and what
distances it has
reached, rather, you can
look to comedian Samantha Bee.
[CHUCKLING]
When Ms. Bee wanted to explore
the powers prosecutors have
on her late night
comedy show, she
lifted a video of Professor
Davis giving a talk on C-SPAN.
So academic talk from
C-SPAN Book TV reached
TBS late night comedy.
That's the power of Professor
Davis's [INAUDIBLE]..
Today in her lecture,
Prosecutors, Democracy,
and Race, Professor Davis
will share her voice
and her experiences with us.
Please join me in
welcoming Professor Angela
Davis for this--
[APPLAUSE]
ANGELA DAVIS: Thank you,
Jason, for that really generous
introduction.
I appreciate it.
And I want to thank
Dean Miller, I
want to thank Bernadette
Wilkinson for making
this visit so wonderful for me.
And feel like everyone
here is response
for inviting me to deliver
the 10th annual Darrow K. Soll
Memorial Criminal Law
and Justice lecture.
I had an opportunity to read a
bit about Darrow Soll's life.
And among his many
extraordinary accomplishments,
I love that he was
a public defender.
And as a former public
defender myself,
I can say that I'm truly
honored to be delivering
this lecture in his memory.
The topic of my lecture today
is prosecutors, democracy,
and race.
Our criminal justice
system is broken.
We have the highest
incarceration rate
in the world.
The quality of justice
that the person receives
depends far too often
on his skin tone,
whether he can afford to pay
an attorney, or post bail.
Public defenders
carry huge case loads.
They often don't
have the resources
they need, investigators
and other resources
to provide the
zealous representation
to their clients.
Since 1989, 2,198
innocent people
have been exonerated
after having
been wrongfully convicted in
our criminal justice system.
And the system is fraught with
unwarranted racial disparities
at every step of the process,
from arrest through sentencing.
The system is truly broken.
But I believe that
it can be fixed.
And I believe that prosecutors,
more than any other official
in the criminal justice system
have the ability, the power,
and indeed, the
responsibility to right many
of the wrongs in our system.
And today, I'm going to talk
about their power, ability,
and responsibility to
right one of those wrongs,
and that is the unwarranted
racial disparities
in our criminal justice system.
And I'm also going to
talk about our power
as citizens to hold
them accountable
through the democratic process.
First, the power and
discretion of prosecutors.
The power and discretion of
American prosecutors cannot be
overstated.
They are, indeed, the
most powerful individuals
in our criminal justice
system bar none.
They control the system
through their charging and plea
bargaining decisions.
The charging and plea
bargaining decisions
are the most important decisions
in our criminal justice system.
The prosecutors alone
control those powers.
They make those decisions.
They make them
behind closed doors,
and with very little
accountability.
We pay a lot of attention in
our society to police officers.
And that's right.
We should pay attention
to them, especially
in light of what we've
learned in recent years, all
these unwarranted killings
of young unarmed black men.
Police officers have
an incredible amount
of power and discretion
as well on the streets
to stop, frisk,
search, and indeed,
use deadly force
against individuals,
so we should pay attention
to police officers
and hold them accountable.
But police officers can
only bring an individual
to the courthouse door.
It is the prosecutor who decides
whether an individual remains
in the courthouse.
What happens to that person?
Whether they're
going to be charged,
and what they'll
be charged with.
Prosecutors may charge an
individual with whatever
the police officer
recommends, or they
can charge that individual
with a lesser charge,
or with a greater
charge, or they
can decide not to
charge them at all,
and it's totally within
their discretion.
And the charging decision
has tremendous consequences
for an individual
accused of a crime.
Because there's
such a proliferation
of laws in our system, in both
the federal and state systems.
They have a wide
range of options when
they're making this decision.
And I'll give you an example
to illustrate my point.
Let's say a police
officer arrests
a person who's in possession
of 10 bags of cocaine.
Well, the police officer
can come to the prosecutor
and recommend that
they be charged
with a number of offences.
But the prosecutor has
a number of options.
That prosecutor can charge
that person with possession
with intent to
distribute cocaine,
which is a very serious felony.
And in most
jurisdictions, it carries
a mandatory minimum
sentence, sometimes
of as much as 10
years in prison.
Or the prosecutor can
decide to charge the person
with simple
possession of cocaine.
Even though they have the
right to-- have the ability
to charge them with
a greater offense,
they can charge them
with simple possession.
That's a misdemeanor,
which could
carry maybe a year or less.
Maybe even probation.
And the ramifications
of this decision
are far-reaching and permanent.
If that prosecutor decides
to bring that felony charge,
the defendant not only faces
that 10-year mandatory minimum
sentence in prison, but
will also, if convicted,
be saddled with a felony
conviction, and all
the associated
collateral consequences.
They might lose
their right to vote.
They might not be able to
apply for public housing,
public benefits.
Very difficult for
them to find a job.
And if they're an undocumented
person, they might be deported.
Despite the importance
of the charging decision
in these life-changing
consequences,
prosecutors are not required
to explain or justify
this decision to anyone.
They're not required to
follow any rules or guidelines
when making the decision.
The decision is not
made in open court,
and there's no public record
of why or how that decision was
made.
It's made behind closed doors
without any transparency
whatsoever.
And it's very easy
for prosecutors
to charge an individual
with a crime.
They only need to meet the very
low standard of probable cause.
It's like the lowest standard
in our criminal justice system.
Roughly, it means more
probable than not.
That's way lower than
the much higher proof
beyond reasonable
doubt that they
must meet in order to convict
an individual of a crime.
And that gives them a
tremendous advantage
at the other decision-making
point that I mentioned,
and that's the plea bargain
step of the process.
Prosecutors also
control plea bargain.
And if you're not familiar
with that process,
it's where a person's charged
with a number of crimes,
and the prosecutor
might offer for them
to plead guilty
to one in exchange
for the prosecutor dismissing
all the other offenses.
The person has to give
up their right to trial,
but they gain
something, because they
don't face the
possibility of being
convicted of all of the crimes.
I'll give you an example.
Let's say a person is
arrested who's suspected
of being a drug dealer.
And let's say the
prosecutor's able to charge
that person with five counts
of distribution of cocaine.
And each one of those counts
is a 10-year mandatory minimum.
Well, that person is
facing 50 years in prison.
And when I say mandatory
minimum that means
the judge must sentence
for up to 10 years
if they're convicted.
So that person's looking
at 50 years in prison.
And the way plea
bargaining would
work is that the
prosecutor would
go to the defense attorney
for that person and say,
hey, I'll tell you what.
I'll make your client a deal.
I'll allow him to
plead to just one
of these 10-year
mandatory minimums,
and I'll dismiss the other four.
Well, you could see how
under those circumstances,
even an innocent
person might feel
pressured to accept that deal.
Why?
Because going to trial
is risky business.
You never know what
a jury's going to do.
And if that jury
comes back, and he's
convicted of all
of the offenses,
he's going to go to
prison for 50 years.
And the judge has no
discretion for a drug offense,
because many of
these drug offenses
do carry that long prison term.
And even if the person's
innocent, oftentimes--
in fact, most
times-- they're going
to be represented
by public defenders.
Unfortunately, in
most jurisdictions,
public defenders, as I mentioned
earlier, are overworked,
they have huge case loads,
they don't have the resources
to investigate a case.
They're under
incredible pressures.
And let's say in my
example, the public defender
says to the prosecutor,
well, I need
to discuss this with my client.
And many times, prosecutors will
put deadlines on these deals.
They'll say, all right, this
deal's good until 5 o'clock
tomorrow.
Your guy has to
take it tomorrow.
After that, the
deal's off the table.
Well, the defender might
say, well, wait a minute.
I have an ethical duty
to investigate the case
for my client to try to evaluate
if my client has a defense.
And the prosecutor can, and
they often do say, deal's
up tomorrow at 5:00.
And so it puts public defenders
in the untenable position
of having to go to their
clients and say, look, you might
have a defense, I don't know.
But I don't have time
to investigate more.
In many instances, I don't have
the resources to investigate.
And if you want this deal, you
have to take it by tomorrow.
And that's not really
being the zealous advocate
that a lawyer should be.
But public defenders
often have to do this.
This happens in courtrooms
across the country every day.
This is what passes as
justice in the United
States of America.
And it happens a lot.
Because 95% of
all criminal cases
are resolved by way
of a guilty plea.
95%.
If you watch some
of the many Law
& Orders-- and I think
there's a whole bunch of them.
SUV, D, I don't even know
all the names [INAUDIBLE]..
There are a lot of them.
But if you watch
some of them, you'd
think all these trials were
going on in the United States.
Not so.
There's a lot of
guilty pleas going on.
And unfortunately,
under the circumstances
that I just described.
So that's a problem.
It's an unfair system.
But there's also another
problem that I mentioned,
and that's the unwarranted
racial disparities
in our criminal justice system.
Black men are 2.5
times more likely to be
arrested than whites.
Black men are 21 times more
likely to be killed by police
officers than white men.
Data from the United States
Sentencing Commission
revealed that between
2007 and 2011,
black men received sentences
19.5% longer than white men
sentenced for the same crimes.
African Americans are
incarcerated in state prisons
at a rate that's five times
the imprisonment of whites.
And in five states, the
disparity is more than 10 to 1.
In 12 states, over half of the
prison population is black.
Now, there are many complex
reasons for these disparities,
including the socioeconomic
reasons, causes of crime.
But the research shows that
discretionary decision-making
by criminal justice officials
at every step of the process
play a significant role in
causing these disparities.
But a number of officials--
police officers, judges,
but prosecutors as well.
Prosecutors play a role in
creating these disparities.
Their charging and plea
bargaining decisions
often produce and perpetuate
these disparities.
And again, to illustrate my
point, let me use a couple of--
I'm a law professor, so
we like hypothetical.
So let me use a couple
of hypotheticals
to illustrate my point.
Suppose a prosecutor
is trying to decide
whether to charge two
different individuals with drug
offenses in his office.
One of the defendants is a
white high school senior.
His name's Brian.
Brian is arrested
for selling cocaine
to his fellow classmates.
The arresting officer
recommends to the prosecutor
that Brian be charged with
distribution of cocaine.
And in this particular
jurisdiction,
it carries a five-year mandatory
minimum sentence in prison.
Now, this is the very first
time Brian's ever been arrested.
His parents hire a private
attorney who's very skilled.
And that attorney
recommends-- that attorney
informs the prosecutor that
Brian is addicted to cocaine,
and that he was selling cocaine
only because of his habit.
That attorney also
informs the prosecutor
that Brian's parents had found
a residential drug treatment
program that he is scheduled to
participate in so that he can
deal with his drug addiction.
He also tells the
prosecutor that Brian
has been admitted to a
prestigious university,
that he has a bright
future, and that a felony
conviction, a prison
term, would ruin his life.
The prosecutor considers
all those things,
and agrees to dismiss the
case if Brian successfully
completes the drug program.
That sounds like a
fair result, right?
So let's look at another case
in this prosecutor's office.
Another defender, an
African American young man
named Marcus, who's a
high school dropout.
He's also arrested for selling
cocaine on the streets,
however, in his community.
Police officer recommends
the same charge.
Distribution of cocaine with
the same mandatory minimum
five-year sentence.
Marcus is represented
by a public defender
with a heavy case load.
Like Brian, Marcus has
no prior convictions.
He has been arrested several
times for misdemeanor offenses,
but no convictions.
His lawyer informs
the prosecutor
that Marcus also
has a drug problem,
and that he was selling to
support his habit as well.
But Marcus's mother cannot
afford to put him in any kind
of drug program.
And there aren't
any free programs
available in his community.
And he's a high school
dropout after all,
so he's not going to college.
So the prosecutor charged Marcus
with the five-year felony drug
offense.
But because he has
an arrest record,
the prosecutor
doesn't offer him one
of those sweet deals
where he can maybe
plead guilty to a misdemeanor.
So he goes to trial,
he's convicted,
and he's sentences to
mandatory five years in prison.
So Brian and Marcus
committed the same offense.
Both are first offenders,
but had a drug problem.
But the prosecutor
dismissed Brian's case,
and that decision created an
unwarranted racial disparity.
Now, there's a lot of reasons
why the prosecutor might
have made this decision.
She created a racial
disparity, but is she racist?
I don't think so.
She may have had an unconscious
bias towards Brian, perhaps
seeing a bit of herself in him.
Bright future, et cetera, not
wanting to ruin his future.
May not have had that
same empathy for Marcus.
Maybe she considered the fact
that Marcus had prior arrests.
That's something
prosecutors should consider.
But maybe those
prior arrests were
the result of racial profiling.
After all, he wasn't convicted
of any of those crimes.
The prosecutor might have wanted
to offer Marcus the same deal.
But there were no drug
programs, so what's
the prosecutor supposed to do?
So this disparity
might have been
the result of
unconscious racial bias,
or it might have been the
result of the consideration
of race-neutral
factors that just
happened to create an
unwarranted racial disparity.
Or it might have been
a little bit of both.
[INAUDIBLE] case, the
disparity is unjustifiable.
So you can see, it's
complicated, these reasons.
Similar disparities
occur with crime victims.
Suppose a prosecutor's
considering how to proceed
in two cases in her office.
Two burglary cases.
Let's talk about those victims.
Another example.
One victim is an African
American woman named Cynthia.
Her apartment's burglarized.
The burglar takes the television
sets, some custome jewelry.
The police make an arrest.
The prosecutor mails the
letters to Cynthia's apartment
and asks her to come down
to the prosecutor's office
for a witness conference.
Cynthia gets the note--
well, first of all, Cynthia
maybe doesn't get the notice.
Maybe she lives
in public housing
where the mail gets stolen,
and she doesn't get it.
And she doesn't show up at all.
Or maybe she gets the
notice and doesn't show up
because it's a weekday,
and she does day work,
and she doesn't
have vacation time.
And if she doesn't
show up for work,
she'll either get
fired or not get paid.
So she just doesn't show up.
Or let's say the prosecutor--
and so she doesn't show up.
The prosecutor's going to
think, oh, she doesn't really
care anything about
this case, so I'm just
going to offer a plea, or
dismiss the case because she
didn't show up.
Maybe she did care,
but that's a conclusion
that a prosecutor might
make based on Cynthia's
not showing up.
Or maybe the prosecutor calls
her, and repeatedly calls her
and convinces her to come down.
And then when
Cynthia comes down,
the prosecutor looks at
Cynthia and talks to her.
Finds out this Cynthia's
a high school dropout.
She's not very articulate.
She's not well dressed.
Maybe she has a drug
possession convention
that, if she testifies, is going
to be revealed to the jury.
And the prosecutor
decides, well, I
don't think I want to take this
case to trial because I don't
think that she'll
make a good witness,
and I'm probably not
going to get a conviction.
So she offers a sweet
deal to that defendant
who ends up with probation.
Fair?
Maybe.
Second case involves
a white woman
named Amanda who's also
a victim of a burglary.
Someone breaks in,
they arrest someone.
Notice is sent out to Amanda.
Amanda shows up early.
On time or early.
She's a lawyer, she's a
partner, so she can go
to work whenever she wants to.
And so she comes down.
She's educated, she's
articulate, she's poised,
she's well dressed, she
makes a good witness,
and she's demanding that
this person be prosecuted.
She's interested.
She's a victim who's interested.
So the prosecutor takes
the case to trial,
and that particular
defendant is convicted.
Again, these decisions
create a racial disparity.
Similarly situated victims'
cases were treated different.
Were they the result
of racial bias?
Racism?
Maybe not.
Probably not.
Certainly not
intentional racism.
Maybe it wasn't
racial bias at all.
The American Bar
Association has what's
called Standards for the
Prosecution Function.
They also have Standards
for the Defense Function.
These are guidelines that the
American Bar Association writes
and publishes that
prosecutors should
follow best practices for them.
And so those standards
list a number of factors
that prosecutors should
consider in determining
whether to charge, or offer
a plea bargain, and so on.
And one of the factors that
the American Bar Association
suggests that prosecutors
take into account
are the victims' views.
Whether they're interested
in prosecution or not.
Prosecutors don't
represent-- they're not
the lawyers for victims.
They represent the entire state,
which includes the defendant,
of course.
But the victim's word
should mean something.
And the American Bar
Association standards
suggest that prosecutors
take the victim's wishes
into account, and that
certainly makes sense.
So the prosecutor may very well
have seen Cynthia's failure
to show up-- or if she did
show up, the amount of time
it took her show up--
as a lack of interest
in prosecution on
the part of Cynthia.
So maybe she took that
into account, fairly so.
Another factor that prosecutors
are urged to take into account
is the strength of the case.
You shouldn't go
to trial in a case
if you don't have a
strong case, because it's
a waste of resources,
it's going to put
all the witnesses, victims,
et cetera, through all this,
and the defendants.
So if you don't have a strong
case, it shouldn't go forward.
Well, maybe the prosecutor
considered the fact
that Cynthia had
a drug conviction,
or that she wouldn't
make a good witness.
All of these are things
lawyers take into account.
Am I going to get a conviction
if I have a witness who's
not able to convince the jury?
Or who the jury's
just simply not
going to believe, for
fair reasons or not.
So maybe she decided
that that was a factor
to take into account.
Consideration of
both of those factors
would have encouraged her to
take Amanda's case to trial.
Amanda was reliable, articulate,
she wanted to go forward.
Thereby increasing the
likelihood of a conviction,
making her a stronger case.
So you can see, again,
this is complicated stuff.
Although the white
victim appeared
to receive favorable
treatment, the decisions
of the prosecutors
don't necessarily
reflect racial bias.
Again, maybe she did have
some bias-- what's called
implicit bias, which
I'll talk a bit
about in a minute-- towards
Amanda and against Cynthia.
Maybe not.
Or maybe it was, again,
those race-neutral factors
that ended up creating
a racial disparity.
An unwarranted one.
If prosecutors charged
African Americans with crimes
while declining to charge
similarly situated whites,
she might be
engaged in something
called race-based
selective prosecution.
And that's in violation
of the Constitution,
but it's really
difficult to prove.
In a series of cases,
the Supreme Court
has made it very difficult to
prove selective prosecution.
You practically have to
prove intentional racial
discrimination.
And I don't think that
that's what's going on.
I don't think that prosecutors
intentionally discriminate
against people based on race.
If it happens, I think
it's extremely rare.
And if race does
play a role, I do
think it's probably what's
called implicit bias, if any
of you've heard of that.
It's the unconscious views
that, quite frankly, all of us
have that are as a
result of stereotypes
that we're exposed to throughout
our lives from the media
or wherever that causes us to
feel a certain way about people
based on their
race, or ethnicity,
or skin color, or body size,
or hair color, or whatever.
And we're not even
aware that we're
having these feelings
about these people.
But it's the thing that
causes a woman who's
on an elevator with a black
man to just move away and hold
her purse a little bit closer,
not even aware she's doing it,
because she sees a black man,
and she sees fear and crime.
It's unconscious.
It's not even intentional.
And everybody suffers from it.
There's a test you can
take online called the IAT.
It's by Harvard.
Every time I take it, I stop,
because I'm afraid to take it.
Because everybody-- I
know I have the bias.
Everybody has them.
But when people in power,
like police and prosecutors,
are making
life-changing decisions
based on those interest
biases it's a problem.
Prosecutors have played
a significant role
in causing and enhancing
the racial disparity
in the criminal justice system.
However, I believe
that they have
the power and the discretion
to take steps to eliminate,
or at least reduce it.
And I believe that the
election of prosecutors
who prioritize racial fairness
and pledge to take steps
to achieve it is essential to
eliminating racial disparities
in the criminal justice system.
So now I'd like to talk about
the last part of my talk.
And that is prosecutors
and democracy.
Prosecutors and the
electoral system.
We all know that the
American democracy
functions through three
branches of government.
The legislature, the
judiciary, and the executive.
Each branch serves a
different function,
and we have this
great system of checks
and balances to ensure that
no one branch exercises
unlimited power.
The prosecution
function falls squarely
within the executive branch.
So in theory, the legislative
and judiciary branches
should serve as a check on
the power of prosecutors.
In practice, however, neither
branch has effectively done so.
Although the Supreme Court has
certainly required prosecutors
to perform their
functions in accordance
with the Constitution, the
Court has also protected
the power and discretion
of prosecutors,
as I mentioned through the
cases I mentioned earlier.
And with regard to the
legislative branch,
neither the United States
Congress nor state legislatures
have restricted
prosecutorial power.
On the contrary, they
have expanded that power
through the passage of mandatory
minimum sentencing laws that
have served to amplify the
significance of the discretion
of prosecutors in
the criminal process.
Accountability is a
core tenet of democracy.
We demand accountability from
those to whom we grant power.
And as the most
powerful officials
in our criminal justice
system, prosecutors
should certainly be accountable
to the people that they serve.
Now, most prosecutors are
held accountable in theory
through the electoral process.
Now, you should know
that only about 10%
off all criminal cases are
prosecuted in federal court.
90% of all criminal
cases are handled
on the state and local level.
And on the state
and local level,
the vast majority of prosecutors
are elected officials.
In all but five jurisdictions--
Delaware, New Jersey,
Rhode Island, Connecticut,
and the District of
Columbia-- prosecutors
are elected officials.
And there are thousands of
them across the country.
They run for office every
two, every four years.
In theory, that process holds
prosecutors accountable.
If you're not satisfied with the
job your district attorney is
doing-- again, they're
called state's attorneys
and district attorneys
depending on jurisdiction.
If you're not satisfied
with the job they're doing,
you have the power to
vote them out of office.
In practice, the
electoral system
does not very effectively
hold prosecutors accountable.
Why is that?
Because their most
important duties--
the charging duties, the
charging, and the plea
bargaining process--
those decisions happen
behind closed doors,
not in the public space.
So we don't know what the
plea bargaining and charging
policies are of our prosecutor.
Most people don't know
what those decisions are.
They don't even
realize what they are.
When prosecutors run for
office, they don't say,
here's what my plea
bargaining policies are.
Here's what my
charging policies are.
They don't talk
about those things.
Most of them talk
about how tough
they're going to be on crime.
And if they have an opponent--
and most times, they don't--
the opponent says, I'm
tougher than that person.
That's all you hear.
Now, in recent years, we've been
hearing something different.
There's some focus now on
diversion and other things.
I'll talk about
that momentarily.
But they certainly don't
talk about plea bargaining
and charging policies.
And most of them run unopposed
and serve for decades.
People simply do
not pay attention
to district attorney races.
They just don't.
And so there's no
accountability.
And most prosecutors
don't feel the need
to be held accountable.
And that's one of the
inherent challenges,
is most of them run unopposed.
The democratic process cannot
hold prosecutors accountable
unless we, the public, becomes
more involved in prosecutorial
races.
Exercise our civic duty.
We have to become more
informed about the duties
and responsibilities
of prosecutors
so that we're equipped with the
information to ask questions
and demand responses.
Because prosecutors
have so much power,
if we elect prosecutors who
are committed to fairness,
and who are committed
to racial justice,
those prosecutors can
make a difference.
And I want to tell you about
one of those prosecutors.
John Chisholm is the district
attorney from Milwaukee County,
Wisconsin.
And I want to talk a
little bit about John.
He demonstrated his commitment
through his participation
on a program called the
Prosecution and Racial Justice
Program.
This is a program that I was
on the advisory board for.
It was started by the
Vera Institute of Justice
in New York.
And the program involved
the collection and analysis
of data in prosecution
offices to determine
the impact of their
discretionary decisions.
And the way the program worked
was that the staff at Vera
developed a series of
performance indicators
that focused on four
important stages
in the prosecutorial
process that involved
the exercise of discretion.
The initial screening
of the case,
the charging decision that I
talked about earlier, the plea
bargaining decision, and the
final disposition of the case.
And then they would
do an analysis.
They would go into these
prosecutors' offices
and do an analysis to determine
whether similarly-situated
defendants were being treated
differently based on race.
Those examples I
gave you before,
where the prosecutor
may not know?
Well, this analysis
revealed whether that's
what was going on.
And the goal of the program was
to help prosecutors exercise
discretion in a way that reduced
the risk of racial disparity
in the decision-making process.
So it was a pilot program
that a number of prosecutors
volunteered to get involved in.
John Chisholm was one
of those prosecutors.
He said, wow, I care
about racial justice.
I want to know, is this
going on in my office?
And so they did do the
study in his office.
He opened his office to them.
And they immediately
began to do the analysis,
and the result came
back showing that there
were stark racial disparities
in the prosecution of four
offenses in Chisholm's office.
Possession of drug
paraphernalia,
prostitution, resisting
or obstructing
an officer, and
domestic violence cases.
So John immediately took action
to eliminate these disparities.
He implemented an early
intervention program
that resulted in
either the dismissal
or reduction of
charges for people
who completed the program.
Now, many of you may have
heard about diversion programs
that prosecutors' offices have.
Maybe you're a
first-time offender
and it's a really
low-level offense.
You go through a program,
your case gets dismissed.
Many prosecution
offices do that.
But this was a different
kind of program
because John did not
limit it to misdemeanors.
He included a wide
range of felonies.
If persons were charged with
a wide range of felonies,
they were eligible to
participate in this program.
They didn't focus
on the offense.
They focused on the
individual person.
Now, obviously, people charged
with serious violent offenses
were not eligible.
But there are a lot of
felonies that are not
serious violent offenses.
And he included those.
And what he said was,
because only 10% to 15%
of the cases in Milwaukee
were the serious violent ones,
he really felt it
could make an impact.
And so he started this
program, and eligibility
was determined by a
detailed assessment
of the individual defendant.
They'd do a questionnaire
of each defendant
to look at a number of factors.
Their criminal history, their
background, their lifestyle,
other factors.
Instead of focusing
on the charge,
they focused on the individual.
And once an individual was
admitted to the program,
they were closely supervised.
They participated in programs
that addressed their needs,
like drug programs, employment
programs, educational programs.
And he's making
progress in Milwaukee.
He prosecutes many fewer
low-level drug offenses.
He doesn't prosecute drug
paraphernalia cases at all.
He drastically
reduced the number
of misdemeanor prosecutions, and
the number of African Americans
sent to prison for drug offenses
was cut in half since 2006.
Now, John Chisholm's
just one example.
There are other examples
that demonstrate
that the electoral
process, despite its flaws,
can hold prosecutors
accountable.
A number of
incumbent prosecutors
were defeated by
challengers in 2016.
In 2016, in about 17
races across the country
that I'm aware of,
incumbents were challenged
by a new breed of prosecutor.
Prosecutors who
actually ran for office
on what I call a
progressive platform.
A platform that promised
fairness, justice,
second chances, and a
reduction in incarceration.
And in 14 of these 17 races,
the progressive prosecutor won.
So there's reason to believe
that the electoral process may
become more effective means
of holding prosecutors
accountable.
More prosecutors have begun
to support criminal justice
reform.
John Chisholm, by the way, was
reelected after implementing
that program.
Prosecutors like
Kim Foxx in Chicago,
Aramis Ayala in Orlando, and
Larry Krasner in Philadelphia
campaigned on themes
of racial justice
and reducing incarceration,
and they won their elections.
Their success has
inspired others
who are committed
to racial fairness
in the criminal justice
system to run for office,
and many of them are
running this year.
And if this train continues,
perhaps the democratic process
can work to effect change.
If those of us who care about
fairness and racial justice
work to elect
progressive prosecutors
and hold them accountable,
with time and hard work,
we can fix this broken
criminal justice system.
Thank you.
[APPLAUSE]
JASON KREAG: Thank
you, Professor Davis.
We have until a quarter after,
so we have time for Q&A.
So I'll try to keep
a queue up here.
I'm just asking, just
announce your question
loud enough so those of us
on the other side of the room
can hear, and
Professor Davis will
try to repeat question
in the microphone
so we can hear as well.
So questions from the audience.
Yeah.
AUDIENCE: Do prosecutors
like Mr. Chisholm,
did he make what he was doing in
his community available, then,
through the prosecutors'
association?
I forget the name of it.
ANGELA DAVIS:
Excellent question.
So I think you all heard,
but the question was,
did he make what he did
available to other people?
And the answer to that is yes.
Actually, if you go
to the Vera Institute,
if you google Vera Institute
of Justice, their website,
and type in Prosecution
and Racial Justice Program,
even though it was a pilot
program and it's over.
They have, actually,
a handbook that they
created for prosecutors
who want to do this.
They also have the results.
They explain what happened in
John Chisholm's jurisdiction.
All that's available
on the website.
And I'm involved with
a number of projects
too working with John.
And I always encourage him, when
you go to the National District
Attorneys
Association's meetings,
you should be
preaching this gospel.
Because they don't want to
hear it from people like me,
but they certainly can hear
it from others, and so.
Yeah, excellent question.
AUDIENCE: Do you think judges
have a useful role here
to shed light-- for example--
during the plea colloquy,
asking questions about how
the plea was arrived at,
including the use of
deadlines, or things like that
within their discretion?
ANGELA DAVIS: Absolutely.
I think judges
should play a role.
Judges in most jurisdictions
can't get involved
in the plea bargaining process.
They can't make prosecutors
offer a deal, or not offer it.
But they can certainly
try to shame them,
and I've seen judges do that.
Why are you bringing this
garbage in front of me?
Go back and settle.
But they can't ultimately
force them to do it.
And some prosecutors feel
that pressure, some don't.
But I do think judges play a
role in holding prosecutors
accountable.
There are ways that
they can do it.
And it's not a topic
of this conversation,
but for example, there's
the Brady violations.
There's the Constitutional
requirement for prosecutors
to turn over exculpatory
evidence, and oftentimes,
they don't.
That's a huge problem.
And a lot of judges don't--
they have the power to hold
them accountable to that,
and they don't.
With plea bargaining and
charging, they have less power.
But they can speak out.
And I do think it can
make a difference.
JASON KREAG: In the front row.
AUDIENCE: In the 17
races that you mentioned,
how many of them were partisan?
And nationally, at all
the different levels
of the jurisdictions,
how many of those, just
vague percentages,
are partisan races?
ANGELA DAVIS: When
you say partisan,
you mean like the Democrat--
AUDIENCE: Mm-hmm.
ANGELA DAVIS: Most of them.
It's complicated, though,
because I've actually
been doing some work on this
with a group that's working
on this particular project.
And most of the
time, the Democrat
is the person who's the
progressive, but not always.
There's a prosecutor
in San Joaquin--
I think it's how it's called--
California named Tori Salazar.
I've been working with
her on the project,
and I think it is
implicit bias, once again.
I just assumed she
was a Democrat,
because she's so progressive and
she's doing such crazy things.
And I was meeting with her
last week-- and she's amazing.
And she's doing
all these projects.
She even apologized
to the whole community
for the racism of the
criminal justice system.
I don't think anyone's
ever done that.
And we're chatting.
She's like, you know
I'm Republican, right?
I was like, ooh!
[LAUGHTER]
OK, OK!
But oftentimes, it is.
There's primary--
it works different
in every jurisdiction.
Sometimes the
primary will end up
deciding the race because
it's a particular review
of the public [INAUDIBLE].
Sometimes there's
a primary, and then
it goes all the
way to the general,
so it varies from
decision to decision.
But I would say, again, most
of the time, it's the Democrat.
But there are
Republican-- and there's
some jurisdictions like
in Dallas, right now,
John Creuzot used to be a
judge and is now-- he just
ran for district attorney.
At one point, he was a
Democrat, and he switched over
to Republican, but he
switched back to Democrat.
And some of these
jurisdictions, they'll
just switch parties just because
they want to do good work,
and they know which
party's going to win.
It's crazy.
It's how politics
works sometimes.
AUDIENCE: I have a question
about police brutality
in the past several--
well, of course, years.
But it's more known nationally
because of Facebook and things
like that.
The police officers are
never held accountable.
What are your thoughts
on fixing that process?
ANGELA DAVIS: Wow.
I could've done this whole
lecture on that [INAUDIBLE]..
But I'll try to give
a two-minute answer.
A very, very good question.
So yes, the killings
of unarmed black men,
which is from the book, Policing
the Black Man, [INAUDIBLE]
is primarily about.
As you know-- and these
killings have been going
on since the time of slavery.
But really, quite frankly,
because of social media
and cellphone cameras,
they're coming to light now.
And many, many
tragic cases where
we're seeing with our own
eyes police officers killing
these men are
unjustified, but there
are a lot of reasons for
it, including the law
and a lot of other things.
But prosecutors play a role,
because as a I've mentioned
before, it's really easy for
prosecutors to bring charges.
He's dead and there's
probable cause.
They can easily-- they
charge people all the time.
It's so easy to get indicted.
They're saying that a grand
jury will indict a ham sandwich.
I don't know what that means.
But whatever it means,
what they're saying
is it's really easy to do.
If they want to
[INAUDIBLE],, they can.
In most of these cases, they
have not charged the police
officers at all.
And in the very few cases that
after, people have protested
what they charged,
the juries that
come back with not guilty or a
hung jury, even in cases with--
And so I think it's terrible,
because I think what's
going on here is that
you've got prosecutors--
there's a bias issue.
There's conflict of interest,
I think, inherently,
because prosecutors work
closely with police officers.
The police officers
are their witnesses.
And so there really should
be even a special prosecutor,
in my personal
opinion, who comes
in from another jurisdiction
who does not know that police
department to bring those
cases, because there's
a conflict going on there.
And there's been a call
for that in many instances.
So yeah, it's a huge
problem because there's
a double standard
there for sure.
People see that
[INAUDIBLE] unfair.
Really, if we want
people to obey the law,
we've got to make sure
it's applied fairly.
People become very jaded.
Because when they see
police officers getting away
with things like
that, and then you
wonder why people
don't obey the law.
They don't have any respect
for it, because they
feel like it's not [INAUDIBLE].
JASON KREAG: [INAUDIBLE]
AUDIENCE: Do prosecutors ever
get-- are they ever in trouble
for being too lenient?
Are there ramifications
for being--
ANGELA DAVIS: For
being too lenient?
AUDIENCE: For letting
people off too often, or--
ANGELA DAVIS: Yeah.
When you say, get in
trouble, prosecutors really
don't get in trouble for much.
And I'm not just
being facetious.
The way that they get
in trouble, I guess,
is either they
could be voted out,
or there are ethical rules.
There's something
called bar council.
But rarely, a prosecutor's
brought before a [INAUDIBLE]
bar council.
There's actually only
one rule, rule 3.8
of model rules of
professional responsibility
that applies to prosecutors,
and there rarely
are ethical charges
brought against prosecutors
from this conduct.
But for being lenient?
I guess one could say, if
you're in a jurisdiction that
thinks that the prosecutor's
being too lenient,
I guess the electorate
could vote them out
because they're thinking that
they're not being tough enough.
I suppose that could happen.
JASON KREAG: And front row.
AUDIENCE: Do you see a trend
in punishing or reprimanding
prosecutors for
[INAUDIBLE] conduct?
Because I just read
an article yesterday
in San Francisco where a law
student was charged formally
by the state bar of California.
I forget what he or she did,
but it involved a trial,
and someone was convicted
who should not have been.
ANGELA DAVIS: Right,
so the question
was whether prosecutors are
punished for misconduct.
Very rarely.
I've written about this in my
first book, Arbitrary Justice,
there's a whole chapter on it.
You can count on
one hand the number
of prosecutors that are
referred to by a council, even
when there's been a
finding in the court
of prosecutorial misconduct.
They are rarely
referred to bar council.
I have my own theories
about why that happens--
AUDIENCE: Then what are they?
ANGELA DAVIS: So [INAUDIBLE].
First of all, I think defense
attorneys are probably
in the best position to
know about the misconduct
when it happens, obviously,
because they're there.
But defense attorneys,
particularly
if you're a public defender,
you're in a difficult spot,
right?
Because you're going to refer
this prosecutor to bar council.
And then you've got to work
with that prosecutor's office,
and you got to get a fair
deal for your next client.
And so they're feeling a little
afraid to-- sort of like,
and I don't mean this
literally, they'll
say if you shoot at the king,
you got to better kill him.
I don't know.
Paraphrasing.
I'm not suggesting
prosecutors be shot.
[INAUDIBLE]
But the point is, if you go
after him, you better win.
Because then all
of a sudden, you're
not getting good plea deals.
[INAUDIBLE] not saying
it specifically,
so I think the defense attorneys
are in a difficult spot.
Judges are getting
no breaks too.
They have no excuses
for not referring--
if someone [INAUDIBLE]
prosecutor-- again,
I'm not talking about
a minor something.
But if this is serious
grade violation
or some other
misconduct, the judge
should refer the person because
they have nothing to lose.
But many of them don't.
Some of them--
I think the [INAUDIBLE]
prosecutors.
Some of them are
in courtrooms where
they work with the same
prosecutors every day,
and there's a buddy
relationship there.
And so they don't want to ruin
their careers while someone's
going to prison because of
what this prosecutor did,
but they're protecting
the prosecutor.
So I think there are a
lot of complicated reasons
why it doesn't happen.
But it does not
happen very often.
AUDIENCE: Your research
in Milwaukee, for example,
in that program, have you
seen some concrete tools that
were being used to
create the change?
I'm thinking of, instead of
single prosecutors making
charging decisions,
maybe charging teams.
These kind of tools that you
maybe witnessed being used?
ANGELA DAVIS: Well, I do know
what John Chisholm did there,
right?
And it was a complicated-- it
was based on the research that
was done by the Vera Institute
where once the finding was made
of the disparities,
then he came up with--
and working with others
in that community--
came up with this specific
type of intervention program
which he implemented
in his office.
And that's not the only
way it can be done,
but that's the one example I
know that seems to be working.
JASON KREAG: There
on the end, yeah.
AUDIENCE: Yeah, I think
you're being a little bit
unfair to the prosecutor.
ANGELA DAVIS: I've
been told that before.
[LAUGHTER]
AUDIENCE: Prosecutors, they
are creatures of their office.
And their office has guidelines.
And they don't have individual
discretion on what their office
guidelines do.
If they exercise
individual discretion,
they are [INAUDIBLE] in
the defense community
because they are no
longer prosecutors.
The changes have to
come from the top down.
ANGELA DAVIS: Yes.
AUDIENCE: They do
not come-- it's
impossible to come
from the bottom up.
ANGELA DAVIS: I
totally agree with you.
JASON KREAG: [INAUDIBLE].
ANGELA DAVIS: OK, so let me--
I'm going to try
to repeat what you
said, correct me if I'm wrong.
You said I'm being unfair to
prosecutors, that [INAUDIBLE]..
We just said that an individual
office is their guidelines,
and that they have to
follow these guidelines,
and that change
comes from the top,
and that individual
prosecutors, they
have to do what the
senior prosecutor says.
OK, I agree with most
of what you said.
I absolutely agree with you
that change from the top.
It's the chief prosecutor.
And that's my whole point.
It's the chief prosecutor
who sets the policies.
It's the chief prosecutor
who's the person who's
being elected, but not elected.
And that is the person
who sets the tone.
Different chief prosecutors
have different philosophies.
Some of them set a policy like
Larry Krasner in Philadelphia.
I urge you to google Larry
Krasner, K-R-A-S-N-E-R.
He's all over social media,
the stuff he's doing is
so revolutionary.
But his philosophy is
that he came and he said,
this is the policy.
He just sent a memo out.
This is how you're
going to charge.
This is what you're going to do.
You're not going to ask for
more than this amount of time.
But not all chief
prosecutors are like that.
Some of them say,
you know what, I'm
going to give my
line assistants more
discretion in individual
cases, and allow them
to do what they want to do.
So it depends on the office.
And when you say
guidelines, that's the part
I really disagree with you.
Most prosecution offices
don't have guidelines.
Certainly not written
guidelines that they're required
to consider and follow.
They don't have them
in their office.
That's why I called my first
book Arbitrary Justice,
because in most offices,
there are certainly not
strict guidelines.
Most of the time,
there's not loose ones.
They leave a lot of discretion
to the individual line
assistant.
And if they don't, the chief
prosecutor sets the tone.
And that's the
person I'm talking
about holding accountable,
is that chief prosecutor.
I do think chief prosecutors
should set policies,
and they should make sure
that their line assistants are
implementing those policies.
It does not work like
that in every office.
It depends on the office.
AUDIENCE: Jeff Sessions sent
out a different [INAUDIBLE]..
ANGELA DAVIS: Yes.
So Jeff Sessions is the attorney
general of the United States,
and I will just say,
I'm sorry about that.
[LAUGHTER]
[APPLAUSE]
[INAUDIBLE] I'm from Alabama,
so I take this very personally.
I know what that means.
But he's the attorney general
for the United States, right?
And so, again, the attorney
general for the United States
can send out to all the 94 US
attorneys in the 94 districts
and say, this is how
we're going to charge.
Eric Holder did that.
He sent out a memo
saying we're not
going to charge at
the highest level
anymore because I'm
trying to reduce
racial disparities [INAUDIBLE].
Jeff Sessions came in after--
and then Loretta Lynch
followed Eric Holder.
Jeff Sessions came in and
issued another memo saying,
take all that back.
Charge at the highest level.
Again, he has that top down.
And again, as far as the
state and local prosecutors,
the chief ones, it depends
on the office as to how
they implement policy.
It varies.
JASON KREAG: [INAUDIBLE]
AUDIENCE: Well,
actually, I was going
to ask about Jeff Sessions.
I'm wondering, until the
current administration,
I was under the impression
that there actually
was a growing awareness
of the problems,
and you've got
bipartisan efforts
to reduce incarceration,
and the recognition
of racial disparities.
But then we get who
we have right now.
And do you see this
as just a fluke
that we're going to get past?
Or--
ANGELA DAVIS: I can
only hope it is.
[LAUGHTER]
So yeah.
It's politics, right?
You had two attorneys
general in a row.
Eric Holder, then Loretta Lynch.
When Eric Holder-- again,
I know Eric Holder,
because Eric Holder was the
US attorney for the District
of Columbia when I was the
director of the Public Defender
Service in DC, so I
was his counterpart.
And we had our issues.
But once he became-- he
was assistant attorney
general with Janet Reno, and
then became attorney general.
And when he came in, he
said, it's a new day.
I remember it was the very
first speech that he gave.
Had all these defenders
in the audience,
and he came and he
said, it's a new day,
things are going to change.
Did this big speech
about racial disparities.
And he did make changes.
He did.
And that's being undone now.
And hopefully, it will
go back if there's
another and different
attorney general.
But as I said before, only 10%--
I don't want to say only,
because I don't want
to minimize the harm that
Jeff Sessions is causing,
because there's a lot of harm.
But of course, the
attorney general
doesn't just deal
with criminal cases.
They deal with a lot of cases.
[INAUDIBLE] a lot
of different ways,
and the Department
of Justice just
doesn't handle criminal cases.
But in criminal cases, only
10% of all criminal cases
are on the federal level.
90% on state and local level.
AUDIENCE: Why is it that so
many of these prosecutors races
are going uncontested?
ANGELA DAVIS: I think they've
gone uncontested in the past--
thank you for that question--
a number of reasons.
In the past-- and
still now, although I
think it's changing--
people just simply
don't pay attention
to those races.
But I think, even when
they do, it's politics.
Running for office,
unfortunately,
in the United States of
America, we have to have money.
You have to have money
to run for office,
and that's a whole
other lecture.
And it's sad that our democracy
so much depends on that.
Money is in our politics.
And if you don't have the
money to run for office,
it makes all the
difference in the world.
I have seen cases where--
for example, Bob McCulloch
was the prosecutor in Ferguson,
in St. Louis County where
Michael Brown was killed.
One of the cases that got the
most attention some years ago.
And he actually had challenger.
And she worked hard,
but she failed.
She didn't have the
name recognition.
She didn't have the money.
And she lost.
It's really hard to win
those races without money.
And that's terrible,
but it's just a fact.
JASON KREAG: In the
second row there.
AUDIENCE: That kind of segues
nicely for my question,
which is, I think I hear
in your hypotheticals
a financial undertone to that.
And I don't know what kind of,
I guess you could consider it
race-blind, or race-neutral
or something studies, is--
could you just talk to the
poverty versus racial--
ANGELA DAVIS: Great question.
Because it's class and race.
It's not just race.
There are many poor whites
who are treated poorly
in our criminal justice
system, without a doubt.
But race always seems
to trump class somehow.
I could give you
some examples of how
race doesn't [INAUDIBLE].
Skip Gates, who is a professor
at Harvard Law School years
ago, you might remember the
Beer Summit with Barack Obama,
when this prestigious
professor at Harvard
was trying to get into his
house, couldn't find his keys,
and the cops came and arrested
him on his front porch.
Skip Gates actually has a
show on television where
he traces people's ancestry.
I can't think of the
name of the show.
I know some of you
may have seen it.
But he got arrested on his own
porch because he's a black man
and decided--
I could give you
example after example.
So I feel like--
but it's both race and
class is the point.
And they intersect.
The poor are disproportionately
people of color,
and people of color are
disproportionately poor.
So I think it's hard
to separate the two.
But you're right.
Oftentimes it's class.
And again, poor whites, whether
they're victims of crime
or suspects, also are
not treated as well
in the criminal justice system.
Thank you for making that point.
AUDIENCE: This question follows
from the last two, I think.
It's great to hear stories
of the good prosecutors.
But I wonder what you think
of the argument in the book
The Rich Get Richer and
the Poor Get Prison.
That this system
indeed is not broken.
That it is in fact functioning
exactly as it is intended to.
[INAUDIBLE] how to
respond to that.
ANGELA DAVIS: I think
that's probably right.
And so if that's what
you mean by broken--
so I guess I'm using the word
broken in a different way.
You know?
I don't know how many of
you have seen the film
13th by Ava DuVernay.
If you have not, you should.
It's a frightening film.
It shows how intentional,
actually, some of this stuff
is.
How it's sort of designed.
Recordings from back in the
administration-- the officials
back in the Nixon
administration, [INAUDIBLE]
intentionally
implemented policies
that were designed to
lock up African Americans
and other people of color.
And that certainly has happened.
When I did my examples,
though, I come from a space of,
I think that most people who
decided to become prosecutors
do it for reasons of good will.
I don't think most people
go and become prosecutors
because they want to
lock up black people.
I don't think
prosecutor says, oh--
and my hypotheticals
are very artificial.
I don't think people say, oh,
there's my black defendant,
here's my white defendant.
I'm going to get this black one.
It doesn't work like that.
And I don't think people
have that in their minds.
I think it's
unconscious sometimes.
So I use those examples
because I think that's mostly
what's going on here.
Although I think you're right.
Oftentimes it is a lot more
egregious and intentional.
But I don't think that's
what's going on mostly.
I think it's more
complicated than that.
Which makes it harder to fix.
If [INAUDIBLE] intention
to discriminate,
we have people saying,
I'm charging you
because you're black, OK,
we can get that person
through litigation, actually.
But you almost need that,
because the case law is so
tilted that way.
JASON KREAG: Please join me
in thanking Professor Davis.
[APPLAUSE]
