Philadelphia DA Criminal Justice Revolution

Civil rights attorney Larry Krasner was elected in a landslide last year and became the new district attorney of Philadelphia. Across the country, promises of reforming the criminal justice system had gotten many people elected as DA. However, when they do become elected, their reforms are slow and disappointing. Krasner ran his campaign on a platform of radical overhaul.

In the three months, he has kept to his word. During his first week, he fired 31 prosecutors from the DA's office because they weren't committed to his changes. His next change was obeying a court order to release a list of 29 officers from the Philadelphia Police Department that were on a "do not call list", which means that they were tainted to the extent that they would be considered unreliable witnesses. The police officers on the list had either been charged with crimes or found responsible for misconduct including lying to their fellow investigators, filing false reports, using excessive force, and driving drunk.

 The biggest document he released is an internal five-page memo full of new policies Krasner sent his staff. The document appears to have been sent to his staff in February, but it only became public a couple of weeks ago.

The focus of the document is summarized in the first line: "These policies are an effort to end mass incarcerations and bring balance back to sentencing." He has one section that is titled, "Decline Certain Charges," where he instructs prosecutors to stop prosecuting marijuana possession regardless of weight and to stop charging those with marijuana with any paraphernalia crimes. Then Krasner instructs his prosecutors to stop charging sex workers that have fewer than three convictions with any crime and to drop all current cases that fit that description.

Next Krasner instructs prosecutors to stop the practice of beginning plea deals with the highest possible sentencing, and instead start those plea deals at the bottom end of the available range time that can be served. If the sentence is less than 24 months, house arrest or diversion programs should be used instead of incarceration.

On the third page of the memo, Krasner goes into new guidelines on Sentencing. He instructs his prosecutors to add up and justify the costs of every single person sentenced to a crime in Philadelphia. The city currently spends $360 million per year to jail around 6,000 people, which averages to about $42,000-$60,000 per year to incarcerate a person. Then Krasner reminds prosecutors that the average total family income in the city is only $41,000. The annual cost of incarceration is more per year than the beginning salary of teachers, police officers, firefighters, social workers, addiction counselors, and even prosecutors in his office.

Krasner closed his memo with five new policies to change the harsh probation rules in Philadelphia. First, he requests that people either be given no probation after incarceration or no more than a 12-month probationary period. Other policies are aimed to reduce the length of probation focused on the fact that Philadelphia currently has over 44,000 people on probation.

Comments from Allen:  At some point, particularly in urban areas with high crime rates, prosecutors must engage in a cost-benefit analysis.  In other words, is it worth going to war over every charged crime, or should the state pick and choose which crimes deserve the most attention?

As a defense attorney, I know that situation works to the advantage of defendants.  Objectively, I might have some problems with the specifics of Krasner's decisions on when to charge people with crimes, but I have to admit that any city that spends $360 million per year to keep people in jail has not only a high-crime problem, but a massive budget problem.  That said, Philadelphia should be making quick deals for its misdemeanor cases and should be concentrating on its felony cases.

Criminal defendants in other counties will not be so lucky.

In Idaho, sometimes the contrary problem arises.  In some low-crime areas, defendants can be over-prosecuted. I have one county in mind, which will go unnamed here, where prosecutors do not engage in plea negotiations at all; they just hand you a take-it-or-leave-it deal for the defendant, and those deals are often worse than the defendant would get with his attorney entering a "guilty" plea without any deal at all.  Apparently, those prosecutors have a lot of time on their hands.

I have worked in an office where the head defense attorney, faced with prosecutors who won't make deals, instructed his associates to "take every case to trial, and make them pay for their refusal to act reasonably."  That lawyer recognized that even in a smaller town, the prosecutors cannot afford to try every criminal case, and will eventually be forced to cut deals just so they can get their work done.

In our system of justice, compromises have to be made.  Right now, the biggest question throughout the United States is, what to do with people who possess marijuana?  Possession and selling is a federal crime.  However, many states refuse to arrest people who buy, sell or possess marijuana, no matter what quantity.  I recently had a client who was arrested with so much marijuana in his car, that Idaho law stated he serve a mandatory 5 years in prison.  However, he had a clean record, and was just passing through Idaho, traveling from one state which had de-criminalized marijuana to another state which had done the same.  Had we tried the case, the judge would have had no choice but to send the man to prison for 5 years fixed.  Fortunately, when the prosecutor and I reviewed the circumstances of this man's record and actions, we agreed to reduce the charge so that did not happen.  We discussed the reasons for the reduction, and the judge agreed our solution was just.

Fortunately, in most counties and cities throughout Idaho, prosecutors and defense attorneys have a working relationship with each other that enables the parties to sit down and reason with each other and treat defendants as human beings, and try to arrive at a just solution for each case.

Sources for more information:

https://www.documentcloud.org/documents/4415817-Philadelphia-DA-Larry-Krasner-s-Revolutionary-Memo.html#document/p1

https://theintercept.com/2018/03/20/larry-krasner-philadelphia-da/