Don’t believe what anybody tells you about “progressive prosecutors.” It’s not the new wave. It should be. Hell, it can be, but it isn’t yet. Of the more than 2,400 elected prosecutors across the country, we’d be lucky to identify a few dozen true reformers out of the whole lot. That tribe is so exceptionally small that I can pretty much name them all without a Google search.
Democrat and Republican alike, America’s prosecutors are still overwhelmingly conservative. North to South, from coast to coast, they all tend to buy into the same old law-and-order malarkey. So, when the chief law enforcement officer for an entire state starts to color outside the lines — shaking the trees and announcing bold reforms — best believe it stands out.
That’s what’s happening in Delaware.
Last fall, the people of Delaware elected Kathleen Jennings to be attorney general. The Democratic primary was a four-way race between reform candidates, and some contenders doubted whether Jennings, a career prosecutor, was likely to follow through on her promises. But on February 15, just over six weeks after assuming office, Jennings sent out one of the most revolutionary internal memos on criminal justice reform ever issued by a state attorney general in modern American history. As an advocate for reform myself, reading something like this is so out of the ordinary that when I first got it, I wondered if it was even real.
I need you to read and share this memo. It’s six pages of brilliance. Now listen, if me and the homies were in charge and wrote this memo, of course it would look and sound a lot more like it came from the Black Panther Party. But don’t be mistaken, this memo is 2,000 words of badassery.
Jennings sought the input of an experienced team that recommended 37 sweeping reforms in eight primary areas of oversight, including charges, bail, pleas, sentencing, probation, and treatment of minors, as well as expungements, pardons, and commutations.
Let me break down some of the highlights.
Right away, in the very first sentence, Jennings makes it abundantly clear that her ability to articulate what’s wrong, why it’s wrong, and how to fix it, rises above cliches and buzzwords. She announces that her office is “committed to making the criminal justice system fair, equal, and accessible to every person regardless of race, income or ZIP code.” You can pretty much determine, using those three pieces of information, whether or not a person is going to get anything that even remotely resembles “fairness and equality.” For a prosecutor’s office to acknowledge the biases that, for decades, have been accepted as the status quo represents a striking shift.
Before Jennings begins detailing the policies she’s going to change, she smartly frames the work of her office in an essential way for her staff. “We cannot control what other agencies or stakeholders do,” she writes, “but we can change our practices and policies to reverse this trend [of inequality and recidivism] and increase fairness and proportionality in the system.”
Jennings makes it clear that these aren’t simply aspirations or ideas. She doesn’t simply want to have another empty dialogue. “Effective immediately,” she wrote, “the Department of Justice and its Deputies and staff will observe the following presumptive guidelines in criminal cases.”
In other words, this is now how it is in Delaware.
I’d like you to read all 37 of her reforms. If they were to become law nationwide, they would radically reduce the number of people caught up in the system. The memo is not perfect, by any means. I wish it made the case for abolishing cash bail. I wish it fully decriminalized marijuana. I wish it fully decriminalized sex work. I wish it did more to address restorative justice. But it’s a great start.
Let me just detail five of the best reforms.
- “We will adopt an office-wide presumption not to charge multiple minimum mandatory crimes when one crime accounts for the facts and circumstances of an event. Deputies will focus on limiting the number of charges in an indictment to those that most accurately reflect the misconduct and are most provable.”
This one is huge. Right now, when prosecutors file charges, it’s commonplace for them to file as many as a dozen different charges for the same crime — ultimately putting the defendant in a position where they are willing to take a plea deal to avoid facing the total sentence from multiple charges. Deciding to simply charge a defendant with the minimum number of criminal counts instead of intimidating them into a plea gets us closer to a system of fair justice.
- “We will encourage alternatives to prosecution for Prostitution. We will be cognizant of the potential for accused sex workers to be victims of sex trafficking and always make an appropriate law enforcement referral when we suspect a defendant is a victim of human trafficking. We will also refer people charged with Prostitution to specialized treatment courts designed to assist them.”
The prosecution of sex work, particularly of sex workers, often puts victims of both trafficking and poverty in the position of being penalized. Alternatives to jail time help them to avoid the stigma of a criminal record, and it puts sex workers on a path to restorative justice instead of a punitive one.
- “For Guideline sentences of 0 to 12 months, Deputies should ask for probation or home confinement, when appropriate.”
This is so simple, but the impact will be profound. Instead of jailing people for petty crimes, give them citations or other alternatives to incarceration. This shift will free up the entire justice system — from jails, to police officers, to prosecutors — to focus on much more serious, systemic issues.
- “Studies show that most probation violations occur within the first year, and additional years are unnecessary with lower level offenses. Deputies will keep probation recommendations to a one-year maximum unless the conviction is for a violent felony or top-tier drug crimes.”
Another smart but simple reform. By extending probation for years and years on end, prosecutors and judges all but ensure that people will ultimately return to jail for minor violations. If someone has served their time, and they are able to honor the terms of their probation for a year, that should be the end of their sentence. Otherwise, people end up trapped in a never-ending cycle of expensive supervision.
- “Deputies will work with Delaware Probation and Parole to avoid recommending prison sentences for technical violations, such as missed curfews, etc.”
Again, a simple but powerful reform. Nobody should be sent back to prison for a technical violation of probation. By simply removing this obstacle, it allows probation officers to focus more on rehabilitation and re-entry into society than on being taskmasters about petty requirements that could mean the difference between freedom and incarceration for far too many people.
Jennings sent the memo out to all of the deputy attorneys general and staff of her entire state office. Delaware is one of a handful of states where county prosecutors are appointed by the state attorney general, rather than being elected. That system has its own pros and cons, but in this case, it meant that Jennings’s progressive mandate has a further-than-typical reach.
In the first paragraph, Jennings acknowledges that “prosecutors have the power to charge or not to charge; to choose which charges to bring; to offer a plea or not, and to recommend a sentence. These decisions substantially impact people’s’ lives, their sense of justice, their liberty, their livelihood, and their families, in addition to the community’s fundamental faith in the system.”
This document was not written by activists and abolitionists, but from a career prosecutor. That, in and of itself, is remarkable.
As more Americans recognize the primary role prosecutors, more so than cops, play in the inequities of the criminal justice system, we’re likely to see more prosecutors yield to the political pressure to be better. America’s justice system is not broken. It’s functioning exactly the way those who designed and built it intended it to function. It’s not a well-built system with a few flaws, but a rotten system with inequality baked into its very fiber. Consequently, I want the whole damn system to be torn down.
With all that said, this is one of the best documents ever issued as state guidelines for justice reform.
The machine of mass incarceration in the United States is about as well-oiled as any industry in the so-called land of the free. It’s deeply resistant to change, and those who profit from it are constantly seeking out new ways to grow its power as it mows down immigrants, the poor, and communities of color. But it genuinely appears that a reasonable, compassionate reformer is the new “head reformer in charge” of Delaware. Kudos, Kathleen Jennings.