ROUGHLY 40 MILLION Americans have a misdemeanor conviction. That represents about 14% of the American population. Misdemeanors represent about 80% of the criminal case docket in the United States, so most cases in our criminal legal system are offenses on the relatively low end of the criminal case spectrum. One of the major drivers of racial disparities in the criminal legal system is the extent to which we arrest, prosecute, and convict people on low-level nonviolent offenses. To tackle both mass incarceration and racial disparities, a focus on mass misdemeanor prosecution is essential even if not sufficient.
About 10 years ago we saw the rise of what we often call progressive prosecutors, who campaigned on the promise that they would fundamentally reform the criminal legal system to end mass incarceration and reduce racial disparities. They would do so in good part by focusing much more of their offices’ resources on prosecuting serious offenses while reducing the attention paid to low-level, nonviolent offenses.
Across the country, a small number of prosecutors had taken this approach, including Rachael Rollins, the former district attorney in Massachusetts’ Suffolk County. A small group of economists has studied what her office has done, and they have found that by declining to prosecute defendants accused of low-level misdemeanor offenses, the Suffolk DA’s office reduced the likelihood that these people would come back into the system. In fact, not prosecuting these low-level misdemeanor cases seems to have improved public safety in the short term at least.
Since racial disparities most often remain unchanged or grow larger after the implementation of such policies, even those deemed successful, the question that I asked after reading this report was whether the benefits of non-prosecution accrued to Black and Brown people as much as they do white people. I decided to compare two counties where similar policies were being deployed. In addition to Massachusetts’ Suffolk County, I also considered Durham County, North Carolina, where a district attorney, Satana Deberry, had also recently been elected after campaigning on implementing progressive policies, including a policy to not prosecute a number of low-level misdemeanors.
“If we hope to make a real and sustained difference, how we implement policy matters, especially where questions of race are concerned.”
To determine what impact these policies had on racial disparities in both contexts, my team sought data from Massachusetts and North Carolina. These data included information about the defendants, about the offenses for which they had been arrested and charged, whether they had been prosecuted, as well as a number of other factors that give you a sense of the trajectory of the case. Data analysis revealed that while the shift towards non-prosecution policies exacerbated racial disparities in Durham County, in Suffolk County, the shift towards non-prosecution contributed to statistically significant reductions in racial disparities. Black people benefited significantly and disproportionately from the non-prosecution policies that were put into place. The question is why?
In Suffolk County, once the DA had announced that she would not prosecute low-level, nonviolent misdemeanor offenses, volunteers from CourtWatch Massachusetts organized to hold her accountable from her first day in office. They sat in courtrooms observing the decisions that assistant district attorneys (ADAs) made, drafted weekly summaries of the patterns that emerged, and then shared their findings with leadership in the DA’s office and with the media. They found that ADAs were making decisions that deviated significantly from the policy and in ways that were racially disparate; Black people were by far more likely to be prosecuted for offenses that were on the decline-to-prosecute list. This suggested noncompliance with the policy, especially where policy-eligible Black defendants were concerned. In effect, CourtWatch MA created a system of transparency that forced Rollins’ office to account. In the first three months of Rollins’ tenure, CourtWatch’s efforts had impact, forcing alignment between the policy and ADAs’ patterns of behavior.
No such pressure existed in Durham County. There were no efforts to put in place transparency mechanisms or to hold the DA’s office accountable. The external pressures from outside organizations, combined with high levels of commitment to the implementation of equity-centered activities by a DA who was clearly interested in and prioritizing transparency and accountability, made a huge difference on the ground in Suffolk County, while it was business as usual in the Durham County context.
The takeaway for me is that policy doesn’t end with design. If we hope to make a real and sustained difference, how we implement policy matters, especially where questions of race are concerned. Race and racism are so deeply embedded in so many aspects of our society that even when we are designing policies that we hope will make a difference, we must include transparency and accountability measures so that we can track what is happening and adjust accordingly over time.
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Sandra Susan Smith is the Daniel and Florence Guggenheim Professor of Criminal Justice, the director of the Malcolm Wiener Center for Social Policy, and the director of the Program in Criminal Justice Policy and Management.
Photograph by Seth Wenig/Ap Photo; Portrait by Martha Stewart; Photo illustration by Andrei Cojocaru