The Lay of the Land

“A prosecutor can do anything he or she chooses to do… that is the really unfortunate element of it,” remarked Stop Solitary CT advocate Robert Gillis, succinctly capturing the power of a prosecutor. 

Many constituencies have caught onto the fact that one elected official has the potential to shape the criminal justice landscape in a district: the District Attorney. While Gillis is right to criticize unrestrained prosecutor power for its ability to reinforce unjust and unequal mass incarceration, prosecutorial authority also represents a promising tool for immediate change. A position that typically has upheld the punitive status quo, a District Attorney (D.A.) can immediately, effectively change defendants’ encounters with the criminal legal system. 

Across the country, progressive organizing is changing what it means to be a D.A. Yale Law School lecturer Emily Bazelon discusses this trend extensively in her 2019 book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. The D.A. is traditionally considered an antagonist for criminal justice advocates. However, Bazelon shows how committed organizing, coupled with liberal donor funding, has led to the introduction of a new paradigm. D.A.s who are committed to diversion and restorative justice have immediately changed prosecution in certain districts, such as San Francisco, Brooklyn, and Milwaukee. 

In most states, state prosecutors are directly elected by the voting population, but there are a few notable exceptions. Delaware and Rhode Island don’t have state prosecutor or D.A. roles. Instead, their democratically elected attorneys general serve as the top law enforcement officer for the states. In New Jersey, county prosecutors are appointed by the Governor and approved by the state senate. Alaska’s Attorney General, who is appointed by the Governor, appoints district attorneys for the state. Prosecution in the District of Columbia is handled by the U.S. Attorney’s Office. 

Connecticut is the only state in which a designated commission selects the state’s Chief Prosecutor, as well as each district prosecutor. A solid “blue” state, Connecticut has the highest incarceration rate in New England and the least democratic prosecution system in the country. Given this context, what should Connecticut criminal justice advocates think about Connecticut’s seemingly undemocratic system? How should we push forward in our battles to reduce incarceration and unequal punishment in our state?

The Criminal Justice Commission 

A 1984 referendum amended Connecticut’s state constitution to establish a Criminal Justice Commission, which would appoint state prosecutors across the state. The new article in the state constitution, Article XXIII, states that the Commission must comprise the state’s Chief State’s Attorney, as well as six additional members appointed by the Governor and approved by the General Assembly. Currently, two state judges, the Honorable Andrew J. McDonald and the Honorable Melanie L. Cradle, as well as four lawyers, Robert Berke, Reginald Dwayne Betts, Scott Murphy, and Moy N. Ogilvie join Chief State Attorney Richard J. Colangelo Jr. on the Criminal Justice Coalition. Of these seven members, four are white men, one has a public defense background, and one, Attorney Dwayne Betts, has experienced incarceration first-hand.

Attorney Robert Berke is a member of the Commission with experience in criminal and public defense. In an interview with The Politic, Berke explained that the Commission selects candidates for prosecutor roles from a shortlist chosen by the head State’s Attorney for the given district. The State’s Attorney’s office, rather than the Commission, interviews the initial candidates for each position. This insight paints the Commission-based system as even less democratic than it initially appears, since State’s Attorney’s have significant leverage in selecting their successors. When asked what he would change about the prosecutor appointment process, Berke said he would want “more input into the people that are the final candidates,” though he acknowledged that going through every application would be “incredibly time consuming.”

Asked about any internal disagreements he’s encountered within the Commission, Robert Berke first noted that their execution sessions are not open to the public.  He did, however, share the example of the public vote to create an inspector general role for the state. “The Commission was split three-three,” he said. Berke could not reveal much about other internal disagreements within the Commission, but mentioned that members have backgrounds that naturally impact their diverse outlooks: “Some of us are former prosecutors…some have only been prosecutors, I have only been a defense attorney, as well as Attorney Betts, and some of the members have never worked as either a defense lawyer or a prosecutor, so it’s an interesting combination, and I guess we all pull from our own experiences.”

The Ongoing Transparency Debate

ACLU CT suggests advocating for meaningful oversight of state’s attorneys as a crucial first step in reforming the state prosecution system. Several Connecticut General Assembly bills have demanded more transparency from the Department of Criminal Justice, namely the 2019 governor-introduced Act Increasing Fairness and Transparency in the Criminal Justice System, but there is still a ways to go before the public can properly evaluate the DCJ. The 2019 law requires the CT Office Office of Personnel Management to collect data from the DCJ and analyze it annually, but only the final analysis is available to the public. As seen in the analysis from the year 2020, the OPM is able to minimize racial disparities and other markers in order to paint its fellow intragovernmental department in a positive light. 

State prosecutors must report certain biennial data to the CT Office of Policy and Management, which produces reports to the Criminal Justice Commission. In the most recent report, the OPM observes Black and Hispanic defendants took up greater proportions of disposed cases compared to the proportions of Black and Hispanic CT residents. At first glance, this convenient data presentation seems to convey disproportionately higher prosecutorial leniency toward Black and Hispanic defendants. However, anyone familiar with the US justice system knows that Black and Hispanic individuals are arrested and charged at far higher rates than their white counterparts. If the OPM had compared ratios of disposed cases to the demographic ratios of cases that entered the court system, we would likely see a very different, more racist, and more accurate narrative. 2019 published arrest data does not record Hispanic ethnicity, but data show that about a third of all arrestees in CT in 2019 were Black, which makes the 28% case dismissal rate in 2020 less impressive.

Currently, the Criminal Justice Commission is responsible for most of this oversight; however, given that only one formerly incarcerated person sits on the Commission, advocates see this oversight as incomplete. 

This year, a bill that would have further expanded prosecutorial accountability, SB 1018 failed to pass through the state legislature due in part to opposition from law enforcement groups, state attorneys, and even some public defenders

While the Department of Criminal Justice did not respond to a request for comment, public record of State’s Attorneys’ stances on accountability is available through opinion pieces and external interviews. In 2021, the thirteen State’s Attorneys and the Chief State’s Attorney published an op-ed in the CTPost. They state firmly: “Political pressure should never sway a prosecutor’s decision-making.” They commend the state’s appointment process, as it allows prosecutors to make decisions using only “the evidence before them and the law.” 

The State’s Attorneys write that they are already “the most heavily regulated attorneys practicing in the state,” implying that they do not see the need for more oversight. The State’s Attorney’s also signed a letter specifically condemning the 2021 prosecutorial accountability law. In an interview with the Hartford Courant, Chief State’s Attorney Richard Colangelo explained “the fear is that they are going to legislate us out of our discretion.”

Despite opposition, advocates maintain that as supposed agents for public safety, state prosecutors should be accountable to the safety needs of the broader public. The Connecticut branch of the American Civil Liberties Union, Smart Justice division maintains that “prosecutors are among the most powerful but least accountable actors in the criminal legal system.” In an article on the 2021 reappointment hearings, the CT ACLU urged Chief State’s Attorney Richard Colangelo to “step into” his role in “seeking decarceration and the end of racism in the criminal legal system.” The ACLU noted several non-committal answers in Colangelo’s response to a survey on legal vision, and they reported that “the only survey questions that Colangelo clearly answered with a “yes” or “no” were “no’s” on prosecutorial accountability.”

Where We Go From Here 

Amending the Constitution to establish D.A. elections would be exceptionally difficult. First, the Connecticut General Assembly would need to approve a referendum question by a three fourths majority in each house. Then, voters would vote “yes” or “no” on the ballot. This is the method by which the original Criminal Justice Commission passed in 1984. Alternatively, the CGA could initiate a vote for a constitutional convention by two thirds majority in each house, if and only if at least ten years had passed since the last constitutional convention. Following CGA approval, voters would vote in a referendum on the question: “Shall there be a Constitutional Convention to amend or revise the Constitution of the State?” If the majority of voters voted “yes”, the CGA would then approve a list of delegates to the convention by a two thirds majority in each house. Political scientists suggest that the “no” side of a referendum typically has an advantage, placing reforms by referendum at a disadvantage. In CT, the last time a constitutional convention vote took place in the general electorate, the referendum failed by a margin of over 18 percent of the total vote

Further, although elections provide opportunity for organizing and activism, they also engender hyper-politicization and corruption. Elected D.A.s are subject to unbalanced scrutiny by the media and the public, which also has its benefits and detriments. Many progressive D.As can point to a handful of failed diversion cases that have seriously threatened their careers. Despite declining crime and incarceration rates, one high profile reoffense can turn constituencies against reform in an instant. San Francisco’s D.A. Chesa Boudin, for example, has come under fire for a small handful of cases in which a person with multiple past convictions reoffends after the courts diverted them from another prison sentence. Though diversion sentences can reduce over-incarceration in populations and improve outcomes for defendants and victims, failed diversion cases can incite genuine fear in a D.A.s constituency. Appointment-based prosecutor selection may help soften reactionary politics, as appointing bodies can review a district attorney’s full caseload history when deciding whether they deserve another term. 

Stop Solitary CT advocate Robert Gillis, a former corrections officer, suggested a focus on the Connecticut General Assembly as an avenue for meaningful criminal justice reform. Stop Solitary is an advocacy group committed to passing the PROTECT Act, a bill that would have strictly limited the use of solitary confinement in Connecticut. The bill passed through both houses of the state legislature, but the Governor ultimately vetoed it. Gillis supposed that the veto was “based on the fact that the commissioner complained that they needed more staff, but there was also an intimidation there, because I know various union members at one of the institutions staged a protest in the form of sick absences.”

He praised the appointment system in CT for reducing politicization of prosecutorial conduct. In other jurisdictions, he said, “Prosecutors run on positions of being ‘tough on crime’…’tough on drugs’ instead of working with the system to modulate what’s really important.” 

Gillis outlined the process by which advocates for prosecutorial reform can work within the system to create real change, “particularly with the Judiciary Committee” in the State Legislature. Connecticut advocates can still push for a reformed prosecution without direct electoral organizing. From Governor, to State Legislature, to Criminal Justice Commission, to State’s Attorney, we can interrupt the chain of command at many points. During the next gubernatorial primary, we can make criminal justice a sticking point by stressing the Governor’s power to shape the criminal justice landscape. When a seat on the Criminal Justice Commission becomes vacant, we can lobby the Governor to appoint a reform-minded attorney, a community member with direct past experience in criminal courts, or an experienced public defender to the Commission. When the Commission has to appoint a new State Attorney, constituents of that State Attorney’s judicial district can express their demands to the Commission. In general, advocates must bring attention to the state of prosecution in CT to encourage public oversight and pressure, which can open doors for democratic means of accountability and justice. 

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