Rethinking Justice: Inside America's Movement for Prosecution Reform

By Vincenzo Guido

In the criminal justice system, people are cast into polar positions on the good-bad axis: good guys and bad guys. Prosecutors, who wield considerable power and influence in the enforcement of our laws, are almost universally cast as good guys. Seldom is there accountability when they are, in fact, not always good.

• Language: English
• Publisher: New Degree Press
• Release date: Aug 25, 2021
• ISBN: 9781641378901

Book preview

Cover.jpgTitle

New Degree Press

Copyright © 2021 Vincenzo Guido

All rights reserved.

Rethinking Justice:

Inside America’s Movement for Prosecution Reform

ISBN

978-1-64137-991-5 Paperback

ISBN

978-1-64137-889-5 Kindle Ebook

ISBN

978-1-64137-890-1 Ebook

To Sarah, Mom, Dad, Francesca, Gianna, Biaggio, Carmela, John, Brianna, and Zack.

Contents

DISCLAIMER STATEMENT

Introduction

Chapter I: How We Got Here

Chapter II Is Reform Possible?

Chapter III: One Grain of Sand Versus the Whole Beach

Chapter IV: Starting at Home: Progressive Prosecution and Community Engagement

Chapter V: Petty Crime and Second Chances

Chapter VI: New Justice in the City of Brotherly Love

Chapter VII: Revisiting the Ghosts of the Past: Brooklyn and an Appeal to Mercy

Chapter VIII: Perhaps There Is Another Way? Prosecution and Diversion

Chapter IX: Does Any of This Actually Work?

Chapter X: Addressing the Elephant in the Room: What Do We Do with the Others?

Chapter XI: Looking Across the Atlantic

Chapter XII: The Long Road Ahead

Appendix

Acknowledgments

DISCLAIMER STATEMENT

The views and opinions expressed in this book are those of the author and do not necessarily reflect the official policy or position of any prosecutor’s office, company, or government agency. Any content provided by the author is of his opinion as a private citizen and emphatically not as an official representative of any group, office, agency, public servant, or company.

Nothing in the following pages should be construed to be any form of legal advice or counsel.

Introduction

I was the 2,451st exoneree. How the hell? That’s an epidemic. That’s a problem.

—Terrance Lewis, exonerated Philadelphia resident falsely convicted of murder.

On a dark night in 1996, fifty-seven-year-old Hulon Howard met his demise, succumbing to gunshot wounds in what appeared to be a robbery gone wrong.¹ Mr. Howard’s girlfriend, a bystander at the scene of the murder, gave her account of the gruesome affair that led prosecutors to three men, one of whom was seventeen-year-old Terrance Lewis. With her testimony, Philadelphia District Attorney Lynne Abraham, a notorious tough-on-crime prosecutor with a zero-tolerance attitude, sent detectives to bring in Mr. Lewis and two other compatriots. That was it; no weapons, no DNA, no photos, nothing. On the words of Mr. Howard’s girlfriend, the District Attorney leapt into action. There was one problem: Mr. Lewis wasn’t the murderer. But that did not seem to matter. After nearly two years of investigations, motions, and ultimately a criminal trial, the prosecution rested as the judge sent the jury to deliberate. Life in prison without the possibility of parole. On May 24, 1999, the gavel dropped and the now nineteen-year-old Mr. Lewis learned that he would die in prison.

In what would prove to be only the beginning of nearly a two-decade tragedy, Mr. Lewis spent the next twenty-one years behind bars for a crime he did not commit. As it turns out, the prosecutors who tried his case had seemed uninterested in the fact that their star witness (Mr. Howard’s girlfriend) changed her account of that evening’s events on several occasions and that she had smoked crack cocaine shortly before the incident. Mr. Lewis, in his appeals, objected to what appeared to be a gross mischaracterization of the actual facts. After serving nearly twelve years behind bars and filing dozens of motions, a federal judge agreed that the court believes that Petitioner is innocent... it is more likely than not that no reasonable juror would have convicted Petitioner.² But that was not the end, as the judge ruled against Mr. Lewis on procedural grounds that sent him back to prison.² However, the tune began to change for Mr. Lewis in 2018 with the election of long-time defense attorney, Larry Krasner, to Philly’s chief prosecutor office.

Mr. Krasner brought to his office a brand new, controversial vision of prosecution that challenged the traditional tough-on-crime model of criminal justice. Among these new initiatives was revitalizing a robust Conviction Integrity Unit (CIU)—an internal department dedicated solely to exonerating those falsely convicted of crimes. Indeed, many of these wrongful convictions involved egregious levels of police and prosecutorial misconduct.

Mr. Krasner’s bold new energy proved opportune to Mr. Lewis, who managed to get his case up for review by the District Attorney’s CIU under the leadership of Patricia Cummings.³ Ms. Cummings and her team’s investigation unearthed troves of new information that prosecutors at the time withheld from Mr. Lewis’s defense counsel—a flagrant miscarriage of justice that amounted to a denial of his due process rights. Among the information discovered were several detective notes that indicated inconsistencies in the key witness’s testimony that had allegedly pinned Lewis as one of the assailants.

Ms. Cummings found that actual records indicated that Mr. Lewis was not named as the alleged shooter and that at least two other witnesses could testify that he was not among the three men at the scene that tragic night.⁴ With that, the Philadelphia District Attorney’s Office, under new leadership, admitted that Mr. Lewis had received an unfair trial and was due reevaluation in federal court.⁵ Fortunately for Mr. Lewis, the Court of Common Pleas—a state level court in Pennsylvania—felt there was a quicker way. Later that day, Judge Barbara McDermott vacated his conviction and the District Attorney dropped all charges. Terrance Lewis, after nearly twenty-one years behind bars, was finally a free man.

While Mr. Lewis’s story has a happy ending, many others will never be so lucky. The very same District Attorney’s office that prosecuted Mr. Lewis has under Mr. Krasner’s new leadership exonerated over ten other men falsely convicted for crimes they did not commit.⁶ While this is surely a victory for justice, there is no telling how many more folks may be ailing behind bars for crimes they did not commit. Nearly all of the exonerations involved some degree of prosecutorial misconduct that included the withholding of exculpatory evidence. While some have eventually realized justice and exoneration, many others never will. Needless to say, Mr. Lewis’s story encapsulates a critical dimension of the prosecutor in America: power. At each stage, the prosecuting attorneys wielded the power to charge and pursue, even when they knew evidence convincingly pointed toward another suspect.

Mr. Lewis’s story and those like his make a convincing case for opposition to the very institution of American prosecution. This assertion, however, is terribly misleading and incomplete. Just as there are many bad prosecutors, such as those in the Terrance Lewis case, thousands of others wake up every morning with an earnest intention to protect their communities by enforcing the law. However, in doing so, even the earnest prosecutor has contributed to a ballooning system of mass incarceration that in many ways cuts against the very goal of any civil servant worth their salt. Our own popular culture routinely reinforces this notion by its celebration of the valorous prosecutor valiantly fighting the super predator felon who is aided by the sleazy, seedy archetype of the American criminal defense lawyer. This illustration, as we shall see, is a red herring that draws away attention from the real problems that prosecutors, defense lawyers, victims, and the accused face in the world of criminal justice.

How Did We Get Here?

No one story perfectly captures the full image of American prosecution and the role it has played in sustaining mass incarceration. At the time of this writing, the US leads the world in the number of people serving time behind bars, topping nearly two million people.⁷ While the US makes up approximately 5 percent of the world’s total population, it houses 25 percent of the world’s known inmates.⁸ The road to this point does not have one point of origin and, by extension, is not simply explained. Yet, it remains common knowledge that the criminal justice system is no place to wind up. Decrepit prison conditions, fixations on retributive justice, and the daunting realities of reentry into civil society upon release make an interaction with the criminal justice system all the more terrifying and tragic. As said, while there exists no one bogeyman in the story of American mass incarceration, prosecution has played an unambiguously important role that too often get overlooked. After all, while the police slap on the cuffs, the prosecutor decides whether or not those cuffs stay on.

However, American prosecution, unlike in decades past, is no longer monolithic in its seemingly impervious marriage to traditional tough-on-crime principles. As the movement for criminal justice reform continues to grow with renewed interest in correcting policies and practices that have failed for reasons we shall touch on later, so too has a newly minted generation of prosecutors. These folks seek to rebrand the function, image, and model of prosecution in an effort to effect justice across the board. Bearing different monikers given by different observers, citizens, and academics, this new coalition of reform-minded civil servants has become most recognizably associated with what we shall refer to as progressive prosecution—an imperfect, politically loaded catchall term that indicates an unconventional approach to criminal justice focused on restorative justice, rehabilitation, community trust, and reconciliation for injustices of the past.

So Why Now?

In short, there is no right time to explore this issue. However, unlike in generations past, momentum for reform has earned a greater significance in modern discourse which has attracted a wide array of unexpected allies. Indeed, criminal justice reform as a larger political and social movement attracts varying degrees of support from both ends of the political spectrum. No longer is rethinking our criminal justice system solely a left-wing issue. Now, even unlikely characters, such as Newt Gingrich and the Koch Brothers—major figures in American conservatism—have expressed the need to recalibrate processes of justice that have historically destroyed instead of restored.⁹ This energy in recent years has come to a critical climax with the passage of numerous sweeping reform bills, including the revolutionary FIRST STEP Act—an imperfect, clunky federal bill aimed at rethinking reentry, sentencing, and rehabilitative justice that is, as its name so aptly suggests, a significant, but not complete, first step. Needless to say, statutes like this will require a second, third, and probably fourth step.

As we shall see throughout, there are many bogeymen responsible for the deplorable state of our current criminal justice system. Among these folks is the often-overlooked prosecutor that affects the execution of justice before, during, and after the prosecution of the crime. While a significant portion of these folks undoubtedly serve a crucial role in upholding the law we now face a point of crisis. Leading the world in incarceration, our prosecutors play an unambiguously central role in quite literally deciding who will and won’t spend time behind bars. While many of these cases certainly merit action, our current model of justice vis-a-vis prosecution has proven helplessly broken and increasingly less and less connected to the actual maintenance of public safety.

My own arrival at many of the conclusions (and frankly, inconclusions) stems in large part from my role as a student and citizen observer. I have had the opportunity to explore much of this from the comfort of a classroom or through certain limited functions as a volunteer with various student groups interested in reconsidering the way we resolve the realities of crime in our communities. Full disclosure: I am not a lawyer, an academic, or a prosecutor. I likewise have never been incarcerated and for all intents and purposes have and continue to benefit from the immense privilege afforded to me as a white, straight, middle class male. While this in and of itself may appear disqualifying from the get go, there are many just like me who have a responsibility to meaningfully reflect upon and engage with the tragic realities that now epitomize our execution of justice in civil society. I, like those reading along, must (1) educate myself on the current state of our system, and (2) understand how numerous actors have attempted to effect (or obstruct) meaningful change.

In this book, we shall attempt to explore the emergence and early initiatives of these so-called progressive prosecutors and understand how their work, despite its unambiguous imperfection and occasional defects, relates to the critical steps supporting the labyrinth that is criminal justice reform in America. We will explore the unlikely triumph of a career grassroots civil rights and defense attorney in a crowded race for Philadelphia’s chief prosecutor office. We will consider how one of New York City’s largest boroughs has entered uncharted territory in broadening the scope of clemency for those unequivocally guilty of a crime (or crimes). Perhaps our most challenging feat, we shall grapple with the painfully complex, yet ostensibly simple question, of whether we can truly change prosecution in America. In attempting to evaluate these different areas, we may not find clear answers. As such, I admonish those reading along that this is not a treatise on criminal justice reform. You, like me, are presumably students and other folks interested in truly reflecting on the inadequacies of our current system of justice and share an interest in tenable solutions.

Importantly, I aim to focus, as best possible, on the stories, work, and challenges associated with this movement first and foremost as a student. I am not a prosecutor. I am not a lawyer. Nor am I a seasoned policy wonk or experienced grassroots activist. I am, however, as mentioned, a student and citizen living in a nation in desperate need of a renewed