Prosecutors and Voters Are Becoming Smart on Crime

• Author: Barbara Mcquade and Sally Q. Yates
• Position: Barbara McQuade is a professor at the University of Michigan Law School and a former U.S. attorney. Sally Q. Yates is a partner at King & Spalding LLP and a former U.S. deputy attorney general.
• Pages: 22-26

Published in Litigation, Volume 46, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Prosecutors and Voters Are Becoming

Smart on Crime

BARBARA MCQUADE AND SALLY Q. YATES

Barbara McQuade is a professor at the University of Michigan Law School and a former U.S. attorney.

Sally Q. Yates is a partner at King & Spalding LLP and a former U.S. deputy attorney general.

How to explain the recent trend of electing reform-minded local

prosecutors? It may be that voters are seeing through tough talk

to embrace smarter strategies to reduce crime.

In Florida, Illinois, Massachusetts, Missouri, New York, Ohio,

Pennsylvania, Texas, and Virginia, prosecutors have been elected

on issues such as reducing incarceration rates, treating drug ad-

diction as a public health issue, and eliminating cash bail.

These reform-minded attorneys include Democrats, like Eric

Gonzalez in Brooklyn, and Republicans, like Melissa Jackson in

Jacksonville. The mayors of 10 cities, from New York to Seattle,

have signed on to a smart-on-crime initiative to reform the crimi-

nal justice system. The U.S. Congress, in gridlock over most issues,

has even passed criminal justice reform legislation known as the

First Step Act, signed into law by President Donald Trump. This

marks a sea change from past campaigns, when prosecutors and

other elected officials wooed voters with their claims of being

“tough” on crime, and the worst insult a candidate could hurl

at a political opponent was that he or she was “soft” on crime.

As former federal prosecutors, we have dedicated our careers

to working shoulder to shoulder with law enforcement officers

to hold criminals accountable for their conduct, but we see the

tough-on-crime mantra as a cynical ploy that counts on voters

to be uninformed. While serious crimes should be punished to

protect public safety and deter others from engaging in similar

conduct, not all crimes are created equal. Voters have begun to

see through the tired trope that locking up all offenders for as

long as possible is in society’s best interest. Instead, voters are

learning the facts behind the rhetoric. Various criminal justice

reform efforts have advocates at institutions across the political

spectrum, from the American Civil Liberties Union to Bill and

Charles Koch. Criminal justice reform has appeal whether you

value equal justice under law, fiscal responsibility, or limited

government.

A number of reasons may explain the change in perspective on

how to address crime. First, funds that are used to send someone

to prison—about $30,000 a year per inmate—can be put to bet-

ter uses in some cases to make our communities safer. Second,

as voters are becoming more likely to know someone addicted

to opioids or other drugs, they are seeing addiction as a public

health issue instead of a criminal justice issue. And, perhaps most

importantly, voters are recognizing that over-criminalization and

over-incarceration run contrary to our nation’s founding prin-

ciple of liberty. Although criminals who commit serious crimes

must be imprisoned to protect society, not every offender requires

the heaviest hammer. So why are many voters moving toward

reform-minded prosecutors?

Cost

The first reason is cost. Voters understand that allocating re-

sources to incarceration means fewer funds are available for en-

forcement and prevention. When we worked at the Department