Dear PERF members, 

Earlier this week, George Gascón was sworn in as district attorney of Los Angeles County. He now leads the largest prosecutor’s office in the country.

The platform he ran on would have been unimaginable 40 years ago when Gascón began his career as a Los Angeles police officer. The LA District Attorney’s office has already announced it is declining to prosecute many low-level offenses, such as drug possession and criminal trespassing. They’re eliminating the use of cash bail in almost all cases other than violent felonies, not trying any juveniles in adult court, and not seeking charging or sentencing enhancements in most cases. The office will also be reviewing thousands of sentences previously handed down to see if they were appropriate.

And District Attorney Gascón is not an outlier. Across the country – in Travis County, TX (Austin), Oakland County, MI (Pontiac), the 9th Judicial District of Florida (Orlando), and other areas – voters this November elected reformers to be their local prosecutors.  They join a growing list of reform-minded prosecutors recently elected in Chicago, Philadelphia, Baltimore, Boston, San Francisco, Dallas, and other major cities.

The prosecutorial landscape has shifted dramatically in the last few years.  And this shift has left some police chiefs and sheriffs wondering what happened to the traditional role of the prosecutor – to represent the interests of the state and, importantly, the interests of crime victims too. 

Most police leaders recognize many of the historical wrongs that the justice system in our country has produced, especially among communities of color. That’s why they support efforts to uncover and overturn wrongful convictions and to find alternatives to arrest and prosecution for suspects accused of low-level crimes who would be better served by community-based services.

But police executives also worry that, in prosecutors’ zeal to address past injustices, the pendulum may have swung too far – and both public safety and the interests of victims could suffer as a result. 

This discussion is coming at a particularly fraught time. The coronavirus pandemic has shut down court systems across the country, and jails are releasing large numbers of individuals back to the community to slow the spread of the virus among jail staff and inmates.

At the same time, homicides and aggravated assaults are spiking across the country. Data recently compiled by PERF and the Major Cities Chiefs Association found that homicides are up 28% this year in 223 cities. 84% of major cities are experiencing an increase in homicides this year.

When I ask chiefs and sheriffs why violent crime is increasing at such an alarming rate, they cite a number of reasons. One factor mentioned by almost everyone is that people who might otherwise be held in jail or prison are now being released back to the community, either because of COVID-19 or relaxed policies on pretrial release. And some are committing new crimes. Sometimes, the consequences are deadly.

Last month, Houston Police Sergeant Sean Rios was shot and killed by a 24-year-old suspect who had been arrested earlier in the year for unlawfully carrying a weapon in a motor vehicle. The bail amount in that case: $100.

Yonkers, NY Police Commissioner John Mueller described what his department is facing with juveniles and firearms. “We’re seeing a lot of guys under the age of 18 who we’re arresting two or three times carrying loaded guns, and they’re going to family court and are released right away. How many times are we going to arrest a kid with a loaded gun before there’s a tragedy? That’s a big concern for us.”

The police leaders I speak with are not calling for a return to the “lock-them-up-and-throw-away-the-key” approach that prompted many of the reforms now being implemented. They understand the need for common-sense changes. But their agencies are dealing with levels of violence not seen in decades, and chiefs are looking to prosecutors to help them address the carnage.

It’s a challenging environment, but not a hopeless one.

PERF began looking at the relationship between police executives and reform-minded prosecutors back in 2019. At the recommendation of Manhattan District Attorney Cyrus Vance, we organized a meeting of the chiefs and top prosecutors from 10 major jurisdictions. We purposefully kept it small and low-key, so that both the prosecutors and the chiefs could speak openly and honestly.

The key takeaway from the meeting was that while police chiefs and prosecutors may not agree on everything, there is plenty of room for common ground if chiefs and prosecutors work to find it.

The report PERF published identified 12 key principles for how chiefs and prosecutors can work together. Many of these principles have particular relevance to the challenges we face today.

Focus on violent crime. Police and prosecutors agree that because their agencies have limited resources, the top priority should be investigating and prosecuting serious, violent crime. Several of the prosecutors said part of the reason they are scaling back on the prosecution of misdemeanor offenses is so they can devote more resources to going after violent criminals.

Police departments like the NYPD are increasingly using data-driven approaches to identify the most violent offenders in the community. But when the police arrest those suspects, prosecutors need to help hold them accountable, for example by seeking pretrial detention for repeat, violent offenders or recommending enhanced charges for those who repeatedly terrorize communities.

Work together to build the strongest possible cases. In Cook County, IL, conviction rates for gun crimes were abysmally low, often because detectives were not building cases that would win at trial. So State’s Attorney Kim Foxx assigned prosecutors to the Chicago police districts with the most gun crime. The assistant state’s attorneys helped to train officers and detectives on how to build cases, and the prosecutors got involved in investigations from beginning to end. Through this collaboration, the conviction rate on gun cases shot up to 80%.

Pay attention to the offender, not just the offense. Police chiefs understand that for many people accused of low-level crimes, especially first-time offenders, the criminal justice system is not the most appropriate or effective response. However, some people arrested for nonviolent misdemeanors may be serious criminals who deserve a closer look from prosecutors.

Baltimore Police Commissioner Mike Harrison emphasized this point at our meeting. “Simple possession of marijuana may very well be a nonviolent offense, but that does not mean the person is necessarily a nonviolent offender. When a person with a history of violent crimes commits a nonviolent offense, we shouldn’t be lenient the way we would for a first-time low-level offender.” Prosecutors need to look at individual cases, and not rely on blanket policies that apply to everyone.

Not all drug offenses are victimless crimes. Prosecutors are increasingly seeking alternatives for people caught with small amounts of drugs, an approach supported by many police chiefs. But chiefs don’t want prosecutors to forget there is still a lot of violence associated with the sale of illegal drugs. Chiefs at our meeting reported that, even in cities where recreational use of marijuana has been legalized, violence connected to the illegal sale of marijuana has surged. Chiefs want to work with prosecutors on strategies to address drug-related violence.

Never forget the victims. This is one area where there is broad agreement between police chiefs and prosecutors. Victims of violent crime need attention and respect, as well as access to information and services, throughout the criminal justice process.

But chiefs emphasized that prosecutors can’t forget about the full range of crime victims out there – the owner of the small business whose store is repeatedly shoplifted from, the minimum-wage worker who can’t get to a job because their car was stolen, and the senior citizen who doesn’t feel safe walking to the corner store because of the drug activity along the way. In these types of crimes, police and prosecutors need to find creative ways to hold offenders accountable (without necessarily resorting to incarceration), while also making the victims whole.

The reality is that police chiefs and prosecutors will never see eye-to-eye on everything. And some of the policies being championed by prosecutors are undoubtedly making that relationship more contentious.

Earlier this week I spoke with Los Angeles Police Chief Michel Moore about what his department is doing in response to new policy directives from District Attorney Gascón.

He said the LAPD is continuing to use its discretion and enforce the law equally and fairly. His department is already using pre-arrest diversion for many juveniles involved in nonviolent offenses, and it relies on its own city attorney for prosecuting certain misdemeanor cases that the county DA’s office might not take.  

In addition, Chief Moore said the LAPD is not changing its policies and procedures during the booking and filing process. At booking, they are still using the bail schedule set by the Superior Court, and detectives are still seeking charging enhancements, when appropriate.

And the courts are agreeing with them in some instances. During a preliminary hearing this week, Chief Moore said the DA’s office sought to drop a hate crime enhancement that had been sought by detectives. But the judge disagreed and allowed the enhancement to stand.

I think Chief Moore is taking the right approach. Police chiefs need to continue to do what they think is best – for their departments, their communities, and the victims of crime. Even if the DA is not going to prosecute crimes such as people smoking marijuana on the corner, police still need to take some action. That sends a signal to the community that you understand their concerns and are committed to addressing them. The alternative – to hold back and do nothing – is to guarantee further erosion in the public’s confidence in the police.

Chief Moore also said he is working hard to figure out ways the LAPD can operate more closely and productively with the DA’s office, especially on issues of violent crime, crime prevention, and services for victims. He recognizes that it is especially important to find consensus and cooperation now, as we struggle with the dual challenges of a global pandemic and a spike in violent crime.

At our meeting last year, Harris County, TX District Attorney Kim Ogg summed up why it is so important for police and prosecutors to find common ground.

“There are many, many people trying to divide us. To them, there’s no better entertainment than to have cops and prosecutors shooting at each other. So I think it would give the public hope to know that we are engaged in conversations at the highest level about our profession and about the people we serve. And that we think it’s better for Americans if we are working together.”

I encourage all police executives and prosecutors to heed her advice.

I hope you have a great weekend.