“Numbingly normal.” It’s how Emily Bazelon describes the outcome in Connick v. Thompson, a 2011 Supreme Court case that shielded prosecutors’ offices from liability for Brady violations resulting from the offices’ failure to train their attorneys. This immunity from liability applies even when that failure results in wrongful convictions — even when, as in John Thompson’s case, a person is nearly executed for a crime that the prosecutor’s office had evidence that he didn’t commit. John Thompson spent fourteen years on death row for a crime that he did not commit, while the prosecutors sat on information capable of exonerating him. Our system is such that this sequence of events can accurately be described as numbingly normal. It is a system that has been built deliberately, in large part by two forces: the United States Supreme Court, often through divided decisions like Thompson; and prosecutors.
It is the latter force that is the focus of Bazelon’s latest book, “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.” Throughout it, she lays out a state of affairs that has become numbingly normal to far too many of the players driving the system, and for those harmed by it.
For those whose day-to-day lives are not directly affected by the criminal legal system, there is nothing in this book that should seem normal, and there is an obligation on us all to avoid becoming numb. Bazelon’s call to action is not subtle. Its urgency grips the author and jumps off the page, from the opening reflection that “in time, the country’s embrace of mass incarceration . . . will come to seem as shameful as slavery does now,” to the closing thoughts: “Somewhere along the way, the balance of power between the prosecution, the defense, and the judiciary shifted. We have to readjust it. The stakes are so high—the well-being of so many communities and the trajectory of so many lives.” It is a book written to destroy your complacency, and it succeeds.
Ask nearly any prosecutor what they do for a living, and, in my experience, the answer that you’ll get is some version of the following: “I do justice.” It sounds good. It has, when combined with the power that comes with the position and the springboard it’s seen as providing to higher office, seduced many a young law student into thinking that their career satisfaction lies in being a prosecutor. But as Bazelon brings out through a book that expertly weaves together narrative with historical, legal, and sociological analysis, it’s an intentionally vague statement that raises more questions than answers. Justice for whom? The victims of crime? The individuals who are suspected of committing those crimes? The communities in which the alleged crimes took place? At best, it is a response that is incomplete. At worst, it is a lie.
I’m left thinking about what justice might mean in the cases of the two individuals whose stories provide the structure for “Charged.” One, Noura Jackson, was convicted of murdering her mother in a trial that seemed to throw the Constitution out the window. The Tennessee Supreme Court ultimately vacated her conviction due to these constitutional violations, nine years after she first entered prison. The state ultimately decided not to re-try the case; Jackson signed an Alford plea (under which the individual maintains their innocence while acknowledging that the state likely had enough evidence to convict them), and was able to walk out of prison on time served. The Innocence Project has since taken up her case.
The other is Kevin, a young man in Brooklyn charged for picking up a friend’s weapon when the police entered the apartment. It was never alleged that Kevin intended to use the gun; his efforts to hide it were merely an attempt to protect his friends, who he knew faced more serious consequences if they were to be charged with illegal gun possession. Unlike Noura, Kevin did not end up being sentenced to prison. Instead, he entered into a youth diversion program that required regular court appearances, social work visits, and intensive state monitoring for the duration of his participation. Upon successful completion of the program, the felony charges against him were dismissed. But the police surveillance did not end. At the close of the book, we find Kevin contemplating leaving New York, simply to get away from it all. He remains, after all he’s been through, a Black man in America. He might not be behind bars, but it is hard to see him as truly free.
What does justice look like for Noura? It is not the District Attorney with seemingly no sense of ethics retaining her position of power. What does justice look like for Noura’s late mother? It is not locking up her child while allowing her murderer to go unfound.
What does justice look like for Kevin? It is not watching police officers tear apart his apartment after he completed the diversion program because they allegedly received a tip that there was a gun inside (a tip that, if it existed at all, was proven to be false). What does justice look like for communities that are disproportionately affected by gun violence? It is not a state of constant surveillance, nor is it placing the futures of young men charged with victimless crimes in the hands of prosecutors whose power is virtually unchecked, and who face no consequences for abusing that power.
Bazelon, in conjunction with Miriam Krinsky, L. B. Eisen, and Jake Sussman, has created a guiding document for those who want to change the system: “Twenty-One Principles for Twenty-First-Century Prosecutors.” It is what hope looks like — concrete action items that, given the wave of progressive prosecutors being elected, might actually be implemented in cities around the country.
But I admit that, while the reform-minded prosecutors highlighted in the book give me some modicum of optimism, I continue to be afraid that we are not learning the true lessons of our mass incarceration crisis. We need to talk about criminal legal reform, and we need to elect people who will give their all to righting decades of wrongs. But once we’re talking about the criminal system — once we’re talking about prosecutors — our country has already failed. We might lock up fewer people, we might attempt to reintegrate them more fully upon their release, but we will still be operating in a system in which certain individuals are seen as belonging in cages. As “Charged” makes so perfectly clear, in a system that is so deeply rooted in injustice, we have a very long way to go until prosecutors can truly claim to belong to a profession where they do justice.