White-Collar Crime

Liberal Prosecutors, Pious Shibboleths, And What Really Matters In Criminal Justice Reform

Democratic prosecutors don't necessarily practice what they preach.

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A fantastic recent New York Times op-ed provides valuable insight into the strange disconnect between how some prosecutors talk about criminal justice and the choices they make when given the power to shape it.

Josie Duffy Rice, who I had never heard of but expect is on the short list for a genius grant sometime in the next decade, pointed out a curious disconnect that I’m surprised I had never noticed before: sometimes, even the prosecutors who believe themselves to be the most progressive can, in fact, be just as merciless in their pursuit of aggressive prosecution as their more conservative counterparts.

The jumping-off point for the op-ed was the recently reported decision by Cyrus Vance Jr. not to move forward with charges against either Harvey Weinstein, who was caught on tape admitting to groping a woman, or Ivanka Trump and Don Jr., for decidedly more complicated fraud charges. Ms. Rice used these cases as an opportunity to note that while it’s easy to criticize Mr. Vance for not going after the powerful, it’s probably more important to the criminal justice system as a whole how he and other self-styled progressive prosecutors go after the little guy — even as they claim to be modern and enlightened.

For example, Ms. Rice points out that Mr. Vance, who has been given awards by Eric Holder and has given speeches about his supposedly more enlightened view of criminal justice, doesn’t usually practice what he preaches. For example:

Look at the data. Manhattan holds less than 20 percent of the city’s population, but on an average day, almost 40 percent of Rikers Island inmates are from the borough. This disparity has been attributed in part to his office’s zealous prosecution of misdemeanors. As of 2015, Mr. Vance was more likely to prosecute a misdemeanor charge than any other district attorney in New York City.

Smarter people than I am have written at great length about how even misdemeanor prosecutions can have profound effects on the lives of those who are put through them. And it’s probably safe to say that most people charged with misdemeanors don’t have fancy lawyers who can make the DA think twice about whether it’s appropriate to bring a charge.

The Weinstein case is a particularly interesting example of this. If you read the entire New York Times article, it does seem clear that the accuser had some credibility problems. Still, the police had him on tape admitting to groping her, and prosecutors go forward on much weaker cases all the time. What do you want to bet that Vance’s office would have dropped the case if the defendant had been poor and represented by an overworked public defender?

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Ms. Rice doesn’t stop at New York, however. She also looks at DAs in New Orleans, Los Angeles, and Philadelphia — all Democrats like Mr. Vance, and all prosecutors who have tried to portray themselves as not being like their troglodyte conservative counterparts.

Ms. Rice’s description of the Los Angeles District Attorney sticks out as particularly amusing, given the shibboleths that the DA uttered as evidence of her bona fides:

The Los Angeles district attorney, Jackie Lacey, is a Democrat who has benefited from the public’s perception that she is a reformer. This is something she has fed herself, bragging to a Los Angeles Sentinel reporter that she has read “The New Jim Crow” by Michelle Alexander and has seen Ava DuVernay’s documentary “13,” about the connection between slavery and mass incarceration. But Ms. Lacey’s values have consistently lagged behind those of her constituency.

I don’t think the New York Times would have ever allowed Ms. Rice to say it, but saying you’ve read The New Jim Crow and watched “13” is the prosecutorial equivalent of saying, “Some of my best friends are black!”

Indeed, Ms. Lacey opposed a ballot initiative that would have reduced sentences for nonviolent crimes, and remarkably, she actually continues to support the death penalty.

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Ms. Rice points out that instead of listening to prosecutors talk about their beautiful vision of criminal justice reform, or about the books they’ve read, or about the movies they’ve watched, what matters is actually what they do in practice. Among the questions that she says we should ask:

Are prosecutors opposing new mandatory minimum sentences during legislative debates? Have they declined to request cash bail in a vast majority of cases? Are they keeping children out of adult court and refusing to seek life-without-parole sentences for them?

Ms. Rice is exactly right that we should be asking these questions, and we should be doing it in all areas of criminal prosecution — state and federal, blue collar and white collar, juvenile and adult. In the white collar context, it is particularly tempting for self-styled progressive prosecutors to wage an Elizabeth Warren-inspired war against “fat cats” who do bad things. It’s all too easy to try to win political points by framing a prosecution as part of a larger political endeavor. But making prosecutorial decisions to win political points isn’t right when conservatives do it, and it isn’t right when liberals do it, either.

So I applaud Ms. Rice for speaking truth to a power that is, as her piece points out, too often smug and self-satisfied in its wielding — no matter how enlightened the wielders may think they are.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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