Our Turn: Calls for racial justice must apply to county attorneys

Published: 8/26/2020 6:00:15 AM

County attorneys are the most powerful people in the criminal legal system. They are the gatekeepers, deciding who is charged, with what, and what sentence to seek. These decisions directly impact the racial disparities that we see throughout the criminal legal system, including in New Hampshire’s incarceration rates.

As our state grapples with systemic racism and makes a concerted effort to advance racial justice, this work must include scrutiny of our prosecutors, in addition to law enforcement.

While police have the sole power to decide whom to arrest, it is prosecutors who have the most power over the legal fate of those arrested. According to a 2018 report from the National Association of Criminal Defense Lawyers, 97% of criminal cases end in plea bargains, where prosecutors have tremendous power over the final disposition of the case.

Prosecutors have the power to flood jails and prisons, but they also have the discretion to do the opposite: They have the power to champion and enact criminal justice reform. They can choose not to prioritize certain offenses, like those associated with homelessness or low-level drug offenses. They can acknowledge that incarceration does not solve homelessness, drug use, or mental health – and stop perpetuating the myth that it does.

We need to redefine justice, because the blunt definition that justice means conviction and incarceration has not solved a single social problem. Instead, that antiquated notion of justice has filled our jails and prisons, shackled people to criminal records that carry decades of collateral consequences, and squeezed taxpayers to pay for all of it.

The job of county attorneys should not be to rack up convictions without consideration for what those convictions are for and whether those convictions are actually benefiting our communities. As a comment to the American Bar Association on the model rules of professional conduct makes clear: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

County attorney candidates should be able to articulate their vision for justice and how they are pursuing it. Serving our communities has to be about more than the number of cases pursued or convictions achieved.

As a starting point, it is imperative that county attorneys acknowledge the existence of systemic racism in New Hampshire’s criminal legal system. It is not enough to say that incidents of racism occur in our state. It is not enough to acknowledge what data proves – that people of color are disproportionately incarcerated in New Hampshire – but then refuse to acknowledge that racism directly contributes to that disparity.

Just as importantly, prosecutors also have a role to play in holding law enforcement accountable and addressing racism in policing. County attorneys have the power to insist that people be treated fairly in everything from charging, to trial, to sentencing – regardless of race, disability, gender identity, sexual orientation, or other factors. They can choose not to prosecute someone who was racially profiled. They can choose not to prosecute someone if they determine that police lied on a police report.

If our county attorneys are not doing this, it is our responsibility to hold them accountable. County attorneys are elected officials and are just as accountable to voters as state legislators and the governor. They have an obligation to increase transparency by meeting with community members and publicly sharing information about how their office operates, about their values, and about what policies they would promote as county attorney.

We should demand that county attorney offices release demographic data on those charged and convicted by each respective county attorney’s office. As voters, as community members, as Granite Staters, we should have ready access to demographic data on the people arrested, charged, convicted, and sentenced in our state. Mass incarceration affects everyone, however, people of color are disproportionately incarcerated in this state, and such data collection – and its publication – could help reveal whether those discrepancies are coming at least in part from prosecutorial bias. When prosecutors choose to pursue resolutions on cases and recommended incarceration as the solution, “on a case-by-case basis,” an individual’s race should never be a determining factor.

The ACLU of New Hampshire encourages Granite Staters to engage their candidate or candidates for county attorney on racial justice and criminal justice reform issues. As a starting point, the ACLU-NH recently sent out a questionnaire to all county attorney candidates in the state, asking them about racism, the impact of incarceration, and whether they would deprioritize certain offenses if elected. We are grateful to those candidates who responded, enabling voters to get to know them better. Granite Staters can read all responses to the questionnaire on the ACLU-NH website.

(Joseph Lascaze is a smart justice organizer and Jordan Thompson is a racial justice organizer for the ACLU of New Hampshire.)


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