What does it mean to be the district attorney?

What does it mean to be the district attorney? Having a duty to prosecute? To enforce laws? But prosecute who? What laws to enforce? No prosecutor's office has the resources to prosecute every person who violates any law or to enforce every law on the books. It's all about priorities. Some priorities are relatively clear, such as the need to prosecute individuals where the evidence demonstrates that they have committed violent crimes. But what else should be emphasized? After all, district attorneys do so much more than prosecute crimes of violence.

Should district attorneys use their resources to send sex workers and people who use drugs to jail? To serve lengthy jail or prison sentences? Should they continue to seek the death penalty against people convicted of murder despite the reality that nobody who has ever been sentenced to life imprisonment without the possibility of parole in California has ever been released except upon the recognition that they were wrongfully convicted? Despite the incontrovertible facts that seeking the death penalty adds enormous costs to any murder case and only prolongs the litigation for at least an extra 10-20 years?

Should district attorneys implement priorities that respond to the realities that existing policies have led to mass incarceration of people of color? Should they aggressively enforce civil and constitutional rights by identifying and prosecuting law enforcement officers who have violated the rights of others?

Should California follow the model of Philadelphia, where voters overwhelmingly elected a career civil rights lawyer, Larry Krasner, as their district attorney?

Krasner had years of experience fighting police abuse and other civil rights violations, but no experience as a prosecutor. He ran on a platform that included ending the death penalty, working to eliminate cash bail, and opposing mass incarceration through fair rather than maximum sentences. Since his election six months ago, he has implemented policies to achieve these goals. And no, the sky hasn't fallen in Philly.

California is not Philadelphia. But the problems that existed in Philly exist here, too. Our Chief Justice has recognized the tremendous unfairness of our cash-bail system, which incarcerates thousands of people who have been arrested for nonviolent crimes when their wealthy counterparts would be free. Not only does our cash-bail system force these indigent individuals to serve lengthy periods in jail despite the presumption of their innocence, but it also leads to thousands of guilty pleas simply to get out of jail now instead of having to languish in jail another 30-90 days just to get to trial. A poor person hanging on to a job they desperately need to support their family and avoid becoming homeless can't afford to pay the ante of staying in jail just to get to trial. And those guilty or no contest pleas to get out of jail now have lasting consequences that exacerbate the reality of mass incarceration; they not only make it extremely difficult to obtain quality jobs in the future, but carry probation terms of up to five years.

Indeed, the standard operating procedure for low-level drug felonies in Alameda County for decades was to require unaffordable cash bail for young black males arrested for street trafficking in small amounts of drugs, leading them to plead no contest so they could get out within two weeks instead of staying in jail for over three months before they could even take a chance at trial, and requiring them to be on felony probation for five years in exchange for their "freedom," setting up the common sequel of automatically being sent to prison for at least three years upon merely being seen in the same areas by the same officers anytime during those five years. It's no wonder that one-in-three African-American men in their 20s were incarcerated, on parole, or on probation at any given time. And for what? For being poor and living in neighborhoods where drugs were used and exchanged on the street instead of behind closed doors in more affluent neighborhoods.

Thankfully, our governor, Legislature and recent initiatives have recognized the excesses of mass incarceration, from disproportionate prison sentences on poor people and people of color for nonviolent offenses, to overcrowded prisons created by excessive sentencing laws, to sending juveniles and adolescents to adult prisons instead of helping them grow into law-abiding and peaceful adults. But as Larry Krasner and the citizens of Philadelphia have shown us, a district attorney can do even more to rectify these wrongs. For example, when Philadelphia prosecutors recommend a particular term of incarceration, they must describe their reasons for that sentence, including "the unique benefits and costs of that sentence," by identifying "the safety benefits, impact on victims," actual financial costs of that sentence, and collateral consequences on the defendant's life. This policy helps insure that each case and individual defendant receives careful consideration, and helps reduce excessive sentences that often result from rote sentencing practices.

San Francisco may be the most liberal county in California, but the elected district attorney has refused to accept the Court of Appeal's decision in Humphrey, which attempted to address the inequities of a cash-bail system that refused to permit a 63-year-old defendant to be housed in a treatment program while awaiting trial. Yes, he was accused of robbery. But there was no evidence that his release would result in great bodily harm. Yes, the district attorney has the right to seek review of Humphrey. But should he? Is that what a majority of the citizens in San Francisco want him to do?

A large majority of voters in many California counties oppose the death penalty, recognizing the dangers of wrongful convictions, the arbitrariness of the death penalty, its failure to protect anyone, and the gross fiscal irresponsibility of spending literally billions of tax dollars to carry out thirteen executions in forty years. Their opposition to the death penalty may disqualify them from serving on a jury in a capital case, but it doesn't stop them from voting a district attorney into office who will not seek the death penalty.

And voters may choose to respond to abuses committed by police officers, including the homicides of unarmed men and children of color, by electing district attorneys who enforce civil and constitutional rights by prosecuting the unlawful acts of police officers instead of exclusively prosecuting arrests made by them.

Our nation's highest court recognized long ago that a prosecutor "is the representative ... of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all." Berger v. U.S., 295 U.S. 78, 88 (1935). Californians have the right and opportunity to hold district attorneys to this obligation. The question is whether they will follow the lead of Philadelphians and go to the polls to do just that.