District attorneys wield enormous power over the criminal justice system, experts said during a virtual discussion Thursday evening, and their biases can worsen racial disparities in an already unfair system.
The event was organized by Memphis Interfaith Coalition for Action and Hope as part of their “Seeking Justice” series. It was moderated by Damon K. Griffin, a former assistant U.S. attorney for Tennessee’s Western District, and featured Angela J. Davis, a distinguished law professor at American University Washington College of Law, and Jamila Hodge, director of the Reshaping Prosecution Program at the Vera Institute of Justice.
Prosecutors influence the criminal justice system in two ways: Charging and pleas, Davis said. They decide initially whether to charge someone with a crime, and if the case becomes one of the vast majority in which the defendant pleads guilty, the prosecutor decides what charges can be pled down.
That can lead prosecutors to pile on charges that they might not be able to win in court, but that they can use as leverage in plea negotiations, Davis said.
“Cops can only bring people to the courthouse door. It is the prosecutor who decides whether that person will stay in the system, what they’ll be charged with, if anything, what those charges will be, what the plea bargains will be and so on,” Davis said.
“This is something that I noticed … when I was a public defender. I could not believe how much power and discretion prosecutors had.”
And that power and discretion can exacerbate racial disparities, she said, even if unintentionally.
The event comes as Shelby County District Attorney Amy Weirich, who is white, gears up to run for reelection in 2022. Weirich was the focus of a national story in 2017 about prosecutorial misconduct and was reprimanded that year for her actions during a 2009 high-profile murder trial.
Her only declared opponent is Linda Harris, who is Black. She is a private practice lawyer who formerly was a Memphis police officer and an assistant U.S. attorney for the Western District.
Shelby County is 54% Black but has never had a Black DA.
Prosecutorial discretion
Davis said Black and brown people are treated worse than their white counterparts through the entire criminal justice process, whether they’re the victim of a crime or charged with a crime.
According to the Sentencing Project, there are 3.7 times as many Black people behind bars in Tennessee as there are white people. Nearly 22% of Black Tennesseans are disenfranchised because of a felony conviction.
In Shelby County, one way prosecutorial power plays out is in the transfer of children to adult court.
Nearly half of the children transferred to adult court in Tennessee come from Shelby County, Hodge said, which she called “horrifying.” In Davidson County, four children were transferred to adult court in 2017. In Shelby County, there were 92, 80 of whom were Black, according to a story last year in the Memphis Flyer.
In 2019, The Reflective Democracy Campaign, a project by the Women Donors Network, released a report showing that 95% of elected prosecutors across the country are white – a number unchanged from a report they conducted four years earlier. There were nearly 50% more women of color prosecutors in 2019 than in 2015, but they still made up only 2% of all elected prosecutors.
They also found that when women and people of color run against white male prosecutors, they’re more likely to win: “In competitive 2018 elections, white men were 69% of candidates, but only 59% of winners. Women and people of color were 31% of candidates and 41% of winners,” the report says.
Change is possible, Hodge and Davis said, but it’s largely achievable by electing prosecutors who run on reform platforms and follow through. Davis cited Kim Foxx in Chicago’s Cook County, Kimberly Gardner in St. Louis and Philadelphia’s Larry Krasner as reform-minded prosecutors who were all re-elected, indicating people liked their policies.
People should demand meetings with and transparency from their prosecutors, Davis said.
“What are you doing about this problem of mass incarceration? Why are so many of our Black and brown kids being locked up? Why are you transferring cases to adult court? That’s why this town hall is so important,” she said.
Enacting reforms
Hodge added that the Reshaping Prosecution Program she directs aims to help prosecutors who want to enact these reforms.
“There are very few who took the job because they wanted to lock up as many Black and brown people as possible,” Hodge said. They’re public servants who want to help their communities, so her job is to remind them of that and show them ways in which their actions aren’t consistent with those goals, she said.
In 2011, Weirich, a Republican, was appointed to fill the DA role vacated by Bill Gibbons, now executive director of the Public Safety Institute at the University of Memphis and president of the private, nonprofit Memphis Shelby Crime Commission. She won election to serve the remainder of Gibbons’ term in 2012, and in 2014, she was re-elected to serve the full eight-year term.
In 2009, Weirich was the lead prosecutor in the trial of Noura Jackson, a teenager convicted of murdering her mother.
Eight years later, Weirich was privately reprimanded by the state’s Board of Professional Responsibility after it found that she improperly commented to the jury on Jackson’s right to remain silent. The Tennessee Supreme Court threw out Jackson’s conviction in 2014 and said she should be retried. Jackson pleaded guilty to manslaughter in 2015, but maintained her innocence. She was released from prison the following year.
Weirich attributed her comments to human error and accepted the reprimand.
The case was featured in a New York Times Magazine story by journalist Emily Bazelon in 2017. Bazelon also used Jackson’s case as one of two stories in her 2019 book, “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.”
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