The recent attacks by U.S. Attorney William McSwain on District Attorney Larry Krasner for his progressive criminal justice policies, including the remarkable claim that the DA, who helped secure the surrender of the shooter in North Philadelphia, was somehow responsible for his actions, show the continuing deep political divide on criminal justice policies.
For many years, the prevailing “wisdom” on criminal justice policy in Philadelphia was that public safety required the most unforgiving punishment. The City preemptively stopped and frisked hundreds of thousands of persons every year, the great majority of whom were innocent; many of those accused of crime were locked up pending trial for the crime of being too poor to afford bail; and many of those convicted of crimes were given harsh sentences. Constitutional limits on police powers designed to ensure fair process, equal treatment, and protection of the innocent, were too often ignored.
These practices led to the current crisis of mass incarceration. The United States, with 4% of the world’s population, has 22% of world’s prison population, and Philadelphia has been a “leader” in this enterprise. However, as the devastating impact of these policies on families and communities became more pronounced, community groups in Philadelphia made criminal justice change a priority and helped to elect Mayor Kenney and District Attorney Krasner.
Philadelphia has become a national model for the reduction of high levels of incarceration and for criminal justice reform. And, what was once a speculative and theoretical debate on the relationship between punitive policies and public safety can now be informed by reliable data. Consider the following:
1. Stop and Frisk. In 2009, Philadelphia’s stop-and-frisk program swept up 260,000 pedestrians. Yet, over 90% of those stopped were entirely innocent and of those frisked, fewer than 1% had a weapon. In 2018, as a result of litigation and new practices and policies initiated by Mayor Kenney and Police Commissioner Ross, 75,000 persons were stopped. That number is still too high, there are too many stops and frisks that lack legal justification, and frisks continue to yield vanishingly small numbers of weapons. Importantly, however, the substantial reduction in stops has had no adverse impact on the rate of violent crime, which has dropped by over 10% since 2012.
2. Bail and Pre-Trial Detention. In 2009, the Philadelphia Prison System held almost 10,000 persons, the great majority of whom were simply too poor to post bail for their release. Prosecutors, judges and politicians argued that release on bail was too risky and would lead to higher crime rates and failure to appear at trial. Yet, in the past several years, new bail policies sponsored by District Attorney Larry Krasner, the Defender Association of Philadelphia, and the judiciary, in conjunction with grants from the MacArthur Foundation have reduced the jail population by more than 50%, to 4800.
And while we continue to detain too many persons who are too poor to post bail, these reforms have provided financial savings and ameliorated the severe personal harms of pre-trial detention. Rigorous empirical studies of these programs by researchers at the University of Pennsylvania’s Quattrone Center demonstrate that reforms do not increase violent crime and have no negative impact on the appearance rate at trial.
3. Sentencing Practices. For years, Philadelphia courts imprisoned thousands of persons to exceptionally long mandatory prison sentences and life imprisonment without parole. State-wide, the prison population increased from 7,000 in the late 1970’s to over 50,000 just a few years ago, according to the Pennsylvania Department of Corrections.
Did public safety require this exponential growth? Not likely, based on data on over 200 juveniles who had been sentenced to life imprisonment without parole, but who have been released from custody following a Supreme Court ruling prohibiting mandatory life imprisonment for juveniles. Of those released, the recidivism rate for new offenses is close to zero, says the Pennsylvania Board of Probation and Parole, and many have become productive members of our community. Federal prisoners granted early release from long drug sentences by President Obama have also done very well.
As for the death penalty, the data show that it has no impact on violent crime. From 1996-2012 there were 42 death sentences in Philadelphia, but from 2013-2019, there were only 2, a 90% reduction. Indeed, more death row prisoners in Pennsylvania have been exonerated than executed in the past 30 years.
The implementation of progressive criminal justice policies in Philadelphia has provided a natural experiment for assessing whether public safety can be protected without mass incarceration and with respect for constitutional principles of due process and equality.
To be sure, violent crime is still a matter of significant concern, but reliance on purely punitive criminal justice measures is hardly the answer. In the end, there is no reason why we cannot have fairness, equal treatment, and public safety.
David Rudovsky, one of the nation’s leading civil rights and criminal defense attorneys, practices public interest law with the firm Kairys, Rudovsky, Messing, Feinberg, & Lin. He became a Senior Fellow at Penn Law in 1988.