Philadelphia District Attorney Advances Criminal Justice ReformsMarch 19, 2018

Philadelphia District Attorney Larry Krasner issued a memo to prosecutors last week formalizing new policies designed "to end mass incarceration and bring balance back to sentencing."

As a candidate, Mr. Krasner rejected the death penalty, stop-and-frisk, cash bail, and asset forfeiture, which disproportionately affect black and poor people, and pledged to reform charging and sentencing practices that criminalize poverty and addiction.

To make good on those promises, Mr. Krasner has directed his 300 assistant district attorneys not to charge possession of marijuana, regardless of weight; not to charge sex workers with two or fewer arrests with prostitution, and to divert those with more than two priors to a specialized court; and to charge retail theft under $500 as a summary offense rather than a misdemeanor. Slate reports that Mr. Krasner has dropped 51 marijuana charges since January; joined the mayor in advocating for Philadelphia to open a safe injection site; and is suing pharmaceutical companies for fueling the opioid epidemic.

Philadelphia prosecutors have been directed not to seek cash bail for 25 offenses. Researchers have found that cash bail systems cause significant racial disparities in pretrial detention and in who is sentenced to prison in the United States.

Assistant district attorneys also have been instructed to avoid convictions by diverting more cases to non-incarceration alternatives, like probation. And because studies show that most probation violations occur within the first 12 months, and probation officers are overwhelmed with too many supervisees, Mr. Krasner's policy memo reduces probationary periods, prohibits re-incarceration for minor technical violations of probation, and limits additional incarceration for serious probation violations to no more than two years. Mr. Krasner has also directed staff to find ways to increase participation in re-entry programs.

Perhaps one of the most important reforms Mr. Krasner has adopted is to require his prosecutors to make plea offers below the bottom end of the state sentencing guidelines for most crimes, and to offer non-incarceration alternatives for offenses where the sentencing guidelines range is between 0 and 24 months. Like the rest of the country, the vast majority of criminal cases in Philadelphia are resolved by plea agreements. Prosecutors have virtually limitless discretion in plea negotiations, and a recent study found significant racial disparities in plea deals that suggest that prosecutors may be using race as a proxy for criminality. 

Philadelphia has the highest incarceration rate in the Northeast and an arrest rate double that of other big cities. The memo observes that Philadelphia is not safer as a result of over-incarceration, "due to wasting resources in corrections rather than investing in other measures that reduce crime," such as policing, public education, medical treatment of addiction, job training, and economic development. Noting that incarcerating one person for a year costs between $42,000 and 60,000 -- roughly equivalent to one year's salary for a beginning teacher, police officer, fire fighter, social worker, assistant district attorney, or addiction counselor -- the memo directs prosecutors to state on the record their reasons for requesting a particular sentence, and to identify the unique benefits and costs of that sentence, including safety benefits, the impact on victims, interruption of defendants' connections to family, employment, needed public benefits, and the actual financial cost of incarceration.

Mr. Krasner has also revived the office's Conviction Review Unit, which was created in 2014 but had only one part-time staffer. Mr. Krasner hired Patricia Cummings, the nationally acclaimed director of Dallas's conviction integrity unit, to head the Philadelphia unit. Her team is now re-investigating about 120 cases and plans to expand its scope to include over-sentencing cases.