Two National Prosecutor Groups Urge Opposite Pandemic Responses

One national prosecutors’ organization has thrown its support behind the criminal justice reform movement’s demands for decarceration, arrest reductions and public health responses to the pandemic. This places it in direct opposition to the United States’ legacy prosecutor association, which is hunkering down against progressive policies under the guise of a “victim-centered” public safety approach.

On May 27, the decade-old Association for Prosecuting Attorneys (APA) published a set of principles that provide guidance for criminal legal professionals to center public health in their work during the COVID-19 pandemic.

“Adopting a public health framework to inform public safety decisions is a critical intervention that has by necessity been successfully used by many public safety agencies in response to COVID-19 and should endure beyond this current crisis,” said APA President David LaBahn in a press release. APA’s spokesperson did not respond to Filter‘s request for comment by publication time.

The APA and the Center for HIV Law and Policy led a convening of research and advocacy groups—including Community Oriented Correctional Health Services, the National Association of Criminal Defense Lawyers, and two University of California research organizations—to develop the principles.

But the National District Attorneys Association (NDAA), a bigger and more established body, is resisting such moves. For them, it’s a matter of “balancing” so-called public safety with “compassion,” reads one April 6 title for an NDAA blog post, listed as a resource for prosecutors’ COVID-19 response.

“Now is not the time,” wrote NDAA Executive Directive Nelson O. Bunn, Jr. in the post, “to exploit this crisis by circumventing meaningful deliberation” regarding decarceration and other criminal legal reforms “all in the name of the real goal of inmate well-being.” He believes that “The rush to make decisions or change policies could unintentionally place our communities at greater risk of harm, particularly as the war against the pandemic continues.”

Bunn did not respond to Filter‘s request for comment by publication time.

While the APA collaborates with organizations that bring experience from the movement for HIV decriminalization, the NDAA is working with a national defense consultancy to advise on its own resources for prosecutors confronting the crisis. According to the NDAA website, it is partnering with CNA—a research group with a long history of aiding US foreign policies from the Cold War to Vietnam to today’s feuds with Russia and China. To be blunt, it is far from a public health organization.

The polarized ideologies of APA’s and NDAA’s collaborators manifest in divergences around practical policies that can mean a fighting chance or (what may feel like) a death sentence to impacted people.

The APA’s principles recommend “significant reductions in the numbers of people incarcerated, both pre- and post-conviction” and issuing citations instead of arresting and jailing certain defendants. The APA endorsed Human Rights Watch’s proposal to end arrests—particularly “custodial arrests for misdemeanor and low-level felony offenses that do not involve the infliction or threat of infliction of serious bodily injury, sexual assault or a known likelihood of physical harm” and for technical probation or parole violations. Anticipating conservative fear-mongering, the APA recommended evaluating the release programs “in the aggregate, rather than based on anxieties over a potential bad outcome in an individual case.”

In contrast, the NDAA seems to support keeping people behind bars, regardless of whether they’ve had a trial, and making public health decisions based off of individual opinions. The organization’s attitude applies both “pre-trial or post-sentencing,” according to Bunn’s post. He prescribed that “[p]rosecutors must and always will consider and evaluate both public safety and the input of crime victims in making any decision regarding someone potentially being released from custody.”

The NDAA has expressed appreciation for conservative efforts to block incarcerated people from being released from federal prisons. The organization publicly declared itself “thankful” to a slate of Republican leaders who expressed “serious concerns” over fewer arrests and increased decarceration in a letter to Attorney General William Barr. This is despite skyrocketing rates of COVID-19 infection  and unsafe conditions on the inside—as Filter has reported, for example, of a North Carolina federal prison and local facilities in Maryland.

The Republican lawmakers, who included Senators Mitch McConnell, Ted Cruz and Lindsey Graham, urged Barr to allow cops to focus on COVID-19’s effect on families, and not “increased burdens imposed by large-scale early releases of violent criminals.” The NDAA tweeted that it’s doing its part, too: “We are continuing to work with Congress and the Department of Justice to prioritize the safety of our communities.”

The APA has also made its position on addressing social distancing clear. “Public health department mechanisms” should be enforcing the measures—not law enforcement—APA stated in its principles. The NDAA has yet to publicly state its position on social distancing; its spokesperson did not respond to Filter‘s request for comment.

The stakes of social distancing enforcement are high. Racist arrests are ramping up, and can result in police violence—as recently exemplified in a viral video of a New York cop attacking a witness of an arrest related to social distancing.


Photograph of a statue outside a courthouse by Tim Evanson via Wikimedia Commons/Creative Commons

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