Without “Roe,” Who Is Holding Prosecutors to Account?

Without “Roe,” Who Is Holding Prosecutors to Account?

After Roe, Who Is Holding Prosecutors to Account?

A conversation with Andrea James, the executive director of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and Sakira Cook, the co–interim vice president at Color of Change.

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Prosecutors are immensely powerful. They can’t be sued, and they pick which cases to bring, which charges to make, and what sentences to ask for. With the overturning of Roe, they will be deciding how, whether, or to what extent to prosecute people who have abortions, their doctors, and maybe even their friends under the mess of new laws that are now kicking in. Who is holding those prosecutors to account? I spoke with Andrea James, the executive director of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and Sakira Cook, the co–interim vice president at Color of Change, which has been pursuing prosecutorial reform as part of its larger campaign for criminal justice.

—Laura Flanders

Laura Flanders: At Color of Change, how high of a priority do you all put on prosecutorial misconduct as part of your slate of things to change?

Sakira Cook: For Color of Change, prosecutorial misconduct is a high priority for us in our movement to reimagine safety in America and redefine—or transform—the way that the criminal legal system operates in our country. Prosecutors wield enormous power. They have the power to make charging decisions. They have the power to decide who gets detained pretrial or who has to pay a money bail to be released. They have the power to determine plea-bargaining negotiations, and they can affect sentencing. There’s a great responsibility, from our perspective, for prosecutors to use that power in a positive way: to divert people away from the criminal legal system, reduce mass incarceration, and funnel people out who don’t belong there to begin with. We’ve been fighting for a long time to educate people about the role of prosecutors but also to push prosecutors to make policy changes that will support decarceration in the criminal legal system.

LF: Andrea, this was personal for you. No bail when you were standing accused. Talk about your own experience and what difference gender made.

Andrea James: We have women right now even in our federal system who are going on their 30th year of incarceration. Women like Michelle West, women like Danielle Metz—we were able to get her sentence commuted by President Obama, but at the age of 26. She was the wife of a drug dealer out of New Orleans sentenced under conspiracy to three life sentences plus 50 years. Now, that for us is prosecutorial misconduct. When prosecutors demand these types of draconian sentences, that creates egregious harm.

LF: We’ve just seen a whole new pregnancy-to-prison pipeline open up with the overturning of Roe at the Supreme Court. Sakira, what are you seeing at the level of prosecutorial action across the country given the discretion that you’ve just described?

SC: In the aftermath of the Dobbs ruling, prosecutors and district attorneys have an extremely important role for ensuring reproductive justice. It’s not just abortion and the right to exercise reproductive freedom. It’s also about the unfortunate circumstances that women face with respect to pregnancy outcomes. Women are often prosecuted for still births, for miscarriages, and it’s important for us to see the unintended consequences of the prosecution of women and girls with respect to their reproductive health on our community and our society. We are demanding, as part of our work around prosecutorial accountability and transparency, the use of prosecutorial discretion in a way that funnels people away from the criminal legal system, demanding those prosecutors dispel any notion that they should use their offices to prosecute women in this way. It is not right, and we can’t stand for that.

LF: Andrea, given the historic roots of our criminal justice system and the policing, especially, in regards to Black women’s bodies in slavery, do you think our system is actually fixable with things like commissions and so on?

AJ: Even though we have a criminal legal system in this country that churns up and chews up everybody that gets entangled in it who are poor and Black, or white and poor, or anybody else poor, commissions are absolutely necessary, because who else should get a say but the people who are most directly affected, the people like myself who have been to a prison, the people like Sakira who have family, who they have been caring for and loving who have been in prisons for decades. The over-policing of Black women and their bodies is not something that just started with the rollback of Roe v. Wade.

LF: Of course, one person who knows this story well is Chesa Boudin, who grew up with incarcerated parents and became an advocate for children in his situation. Chesa was elected as San Francisco district attorney in 2019 and went on to serve two and a half years in which he eliminated cash bail, and fired roughly half a dozen prosecutors from his office. But this summer saw Boudin recalled in a backlash campaign. Sakira, given all of that, how do you assess this national strategy that Color of Change has been part of, of prioritizing electing progressive DAs?

SC: All communities deserve to feel safe. But for too long, we’ve allowed politicians, law enforcement, and the media to define what safety is and to use safety to justify our overspending in policing, prosecution, and prisons. That hasn’t led to more safety, that’s actually led to less safety, which is why we’ve pushed for prosecutorial reform and why we’ve stressed prosecutorial transparency and accountability. Anytime we make vast changes and have winning strategies, we see a movement of retrenchment. We see powerful forces come back to try and steer us away from progress, and bring us back to the status quo. But we’re undeterred. This movement for prosecutorial reform across the country will continue.

LF: And you, Andrea, how do we do both at the same time? Both the reform kind of work and the transformation kind of work.

AJ: Many people still in our communities that are most directly affected don’t understand that we elect prosecutors, district attorneys. There are district attorney races. Color of Change has done a vast amount of work over the years to do just that, to raise awareness that district attorneys are elected positions. And so we do our job as boots-on-the-ground organizers. We really don’t believe that this system is going to dismantle itself.

LF: Lots of people work in our broad criminal justice system in different capacities with different perspectives, and a whole lot of them really want to do the right thing. What is your message to those people? Especially, perhaps, the prosecutors out there.

AJ: I did a whole segment with new lawyers at the Committee for Public Counsel Services here in Boston yesterday. And the last thing I left them with was, “It’s not enough for you to just be a public defender.” Public defenders are lawyers who came out of law school. I’m a former lawyer—I went to law school. It was a very elite experience. It was a very privileged experience. The majority of the people that got that training were not from Black and brown communities that are most directly affected by this issue, and so we challenge people who are currently working within the criminal legal system to expand their view. Get involved with Color of Change, get involved with the National Council and phenomenal organizations such as Free Hearts in Tennessee, Families for Justice as Healing in Roxbury, and countless others around the country. It’s what we do at the National Council. We’re that network facilitator for all of that work being done by formerly incarcerated women, and we can steer you in the right direction. You have to become politicized. It’s not enough for you to get a good job that gives you benefits and helps you pay your mortgage and puts your kids through college. You have to actually learn. Become politicized, read Michelle Alexander’s The New Jim Crow as an entry point into the history. It doesn’t matter what your role is. Even if you’re a judge, connect yourself to the people on the ground who are doing the work to create significant shift and change in the criminal legal system.

LF: Sakira, what’s your message?

SC: We can’t allow elected officials and politicians to determine what safety is. Communities have to own that for themselves, as Andrea has said, and we have to invest. Budgets are moral documents, and they reflect the values that we say we hold and the values that we say we want to infuse into our society. But too often, our budgets reflect a value system around prisons, prosecutions, and policing, especially in Black communities. And that has to change. Instead, our values need to reflect education, health, economic justice. All of the things that we know create safer, healthier thriving communities for everyone. As part of that transformation, we have to change law and policy. We have to hold prosecutors accountable, judges accountable, police accountable, everyone from the entry point all the way through the end accountable to a new approach and a new way of thinking about how we manifest safety in America. That’s what our work has been and what our work will continue to be.

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