How DAs Impact Communities
Differences exist within prosecutors’ offices on how they approach the intersection of immigrant rights and the justice system, how they handle youth arrests, how responsive they are to protecting LGBTQ communities and people of color, how they approach staff accountability and training, and many other areas. Deep and long-lasting reductions to Tennessee’s jail and prison populations cannot be achieved without major transformations to the practices of our elected district attorneys.
District attorneys make decisions that influence whether people are held in jail because they cannot afford bail or they cannot pay their fines and fees. The result is a two-tiered system of justice that separates the people who can afford to buy their freedom and those who cannot.
A person’s economic status should not determine their fate in the criminal legal system. Yet many people remain incarcerated before trial simply because they cannot afford to post bond. Pretrial detention increases the likelihood of conviction, the likelihood of a jail sentence, and the length of the sentence imposed. Lives can unravel when arrestees lose jobs, child custody, housing and transportation due to even a few days in jail.
In addition to the inability to post bond, across the country people with limited incomes can also be prosecuted for failure to pay legal debts they can never hope to afford. Though the United States formally abolished the incarceration of people who failed to pay off debts nearly two centuries ago, and the Supreme Court ruled more than 30 years ago that people should not be incarcerated solely because they are unable to pay court fines and fees, the practice has persisted — in part due to choices made by local prosecutors. State and local courts have increasingly attempted to supplement their funding by charging fees to people convicted of crimes, using aggressive tactics to collect these unpaid fines and fees, including for traffic offenses and other low-level offenses – essentially creating modern-day debtors’ prisons. [i]
The steep price of incarceration causes too many people and their families to suffer, their jobs to disappear, and their chances of escaping poverty to become even more remote.
Prosecutors should not recommend incarcerating people for failure to pay fines and fees, and they should support pretrial release of defendants unless detention is necessary for community safety or to ensure the return of the defendant for future proceedings. [ii] Steps like these help move us toward a justice system that is fair and provides equal treatment to all people, regardless of income.
As the gatekeepers of the criminal legal system, district attorneys’ decisions contribute to significant racial disparities in our carceral system.
Tennessee’s state prison and jail populations are disproportionately Black. In 2015, Black people made up 18% of Tennessee’s population, but 36% of the people in local jails. [iii] In 2018, Black people made up about 17% of Tennessee’s overall population, but 40% of the state’s prison population. [iv]
This is attributable in part to over policing in communities of color, but also in part to decisions made by district attorneys. For example, in 2018, Black people in Tennessee were 3.2 times more likely than white people to be arrested for marijuana possession, despite using marijuana at similar rates. [v] While district attorneys do not make arrests, they do have the power to decide whether to prosecute marijuana cases or dismiss them entirely.
By overcharging and seeking harsher bail amounts and sentences for certain groups – often Black and Latinx people – district attorneys can contribute to racial disparities and the continued mass incarceration crisis in Tennessee.
Better collection and reporting of demographic data related to cases can help prosecutors’ offices and the public combat racial bias in the criminal legal system.
DAs have the power to choose whether their offices will recognize and effectively respond to the needs of women – whether they are attorneys, staff, victims, survivors, witnesses or defendants.
For example, district attorneys can choose whether to train their staff on issues of consent and sexual assault, or whether to pursue sexual assault or domestic violence cases in a manner responsive to the needs and experiences of survivors. Your DA also has the ultimate authority over which cases they choose to take on and which cases they choose to turn away, the charges they will file, and which survivors and victims get access to justice and which do not.
This unchecked power has led to DAs like General Craig Northcott of the 14th Judicial District, who openly admitted that he does not prosecute domestic abuse between same-sex couples due to his religious beliefs. On at least two occasions DA Northcott made statements that call into question whether the guarantees of the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses would be fairly applied to victims and defendants in the LGBTQ and Muslim communities in his district.
District attorneys also choose whether to take a history of domestic violence into account before deciding whether to prosecute, and to decide whether individuals who commit offenses while victims of human trafficking, like Cyntoia Brown , or domestic or sexual abuse, like Mindy Dodd, should be charged.
Nationally, women are the fastest growing segment of the incarcerated population, and the vast majority of their charges are for non-violent offenses. [vi], [vii] In Tennessee, between 1980 and 2015, the number of women in jail increased 1,431%, and between 1980 and 2017, the number of women in Tennessee prisons increased 796%. [viii] As of June 2021, nearly 58% of the women in Tennessee jails were there pre-trial. [ix] Incarcerated women may have a more difficult time than men affording money bail because their income is typically lower than their male counterparts – for many women, the typical bail amount may be equal to or more than their full year’s income. [x] To truly understand the growth in the incarceration of women in Tennessee, however, more data is needed. Tennessee’s DAs could help facilitate this by collecting and sharing more data with the public about their policies and practices.
DAs should also take steps to ensure that their offices effectively respond to the needs of women. Prosecution policies need to be evaluated carefully to discover whether they help prevent violence and to ensure that they do not result in greater harm than alternatives would. Better data collection and reporting can help ensure that gender-bias is not occurring and that best practices in response to people of all genders are taking place.
Your district attorney can choose to keep packing our prisons and jails with people with mental illness and substance use disorders — which is guaranteed to exacerbate the symptoms — or support provision of more effective local services like rehabilitation and community mental health, as well as diversion of people into these programs.
A 2019 study found that Tennessee was among states with a higher prevalence of mental illness and a lower rate of access to care. Over 19 percent of Tennesseans – some 977,000 youth and adults – have a diagnosable mental illness. Yet the state ranked 42 out of 51 states and the District of Columbia for access to mental health care services. [xi], [xii]
When the police arrest someone, the prosecutor’s office has the power to recommend diversion of the accused to a mental health court or program.
District attorneys can speak out to help ensure that immigration enforcement does not undermine community trust, public safety, or the fair administration of justice.
Programs such as 287(g) that often lead to the deportation of immigrants for misdemeanors, as well as the potential for racial profiling engendered by such programs, lead to immigrants living in fear and distrust of law enforcement. Introducing the threat of immigration enforcement into community policing deters immigrants from reporting crimes they have experienced or witnessed, ultimately undermining public safety as a whole. [xiii]
Immigration enforcement at courthouses can stop immigrants from coming to court or even calling police in the first place. The impact of immigration enforcement at courthouses greatly undermines the security of vulnerable communities and the fundamental right to equal protection under the law, shared by all people regardless of immigration status. [xiv]
Additionally, because federal immigration law can impose additional penalties when a person who is undocumented receives a criminal conviction, district attorneys need to understand the potential collateral consequences of their decisions, such as the risk of deportation. [xv]
Elected district attorneys are an integral part of allaying immigrant concerns, strengthening community trust, and ensuring that all members of the community feel protected and respected.
District attorneys have the power to determine whether a young person is kept in the juvenile legal system or prosecuted in the adult system, where they are much more likely to be harmed and to reoffend once released.
Tennessee does not impose a minimum age for prosecuting minors as adults for certain offenses, leaving youth vulnerable to extreme punishment. Nationally, children as young as eight have been prosecuted as adults. The absence of a minimum age also exposes Tennessee youth to being held in a county jail, segregated from the adults, where they are at increased risk of sexual, physical, and psychological abuse.
District attorneys can also choose whether to prosecute school discipline-related offenses or status offenses such as truancy, or to advocate for community resources to go to restorative and transformative practices tailored to the needs of youth, such as education and after-school programming.
All young people make mistakes. Your DA can push young people into the criminal legal system or give them a second chance to learn from their mistakes.
Tennessee is home to a diverse LGBTQ community of 223,000 people ages 13 and older. [xvi]
District attorneys have the power to choose whether their offices will recognize and effectively respond to the needs of lesbian, gay, bisexual, transgender and queer people – whether they are attorneys, staff, victims, survivors, witnesses or defendants. They should commit to training their staff on how to humanely, respectfully and fairly manage cases involving LGBTQ hate crimes, sexual assaults, domestic violence incidents, and more. [xvii]
However, currently the criminal legal system does not treat lesbian, gay and bisexual people equally. A study found that for every 100,000 lesbian, gay and bisexual people in the country, 1,882 are incarcerated — an incarceration rate more than 3 times that of the US adult population as a whole. [xviii] The same study found that lesbian and bisexual women face longer sentences in both jails and prisons than straight women. Additionally, men who are gay or bisexual are more likely to have sentences over 10 years than straight men. Unfortunately, little data is available on transgender people and incarceration. [xix]
While more research is needed on what leads LGBTQ people to incarceration, the study authors speculate that discrimination by law enforcement, family rejection, drug use and community marginalization may increase the risk of incarceration. Importantly, the lead author also suggested that we need a better understanding of “whether there are biases ingrained in our court system that lead to sexual minorities being handled in a different way.” [xx]
Nationally, LGBT people are also 4 times more likely to be victims of violent crime than non-LGBT people. [xxi] Between 2015 and 2020, 140 transgender women were killed nationwide. More than 75 percent of those killed were Black transgender women. [xxii] However, prosecutors pursued only three of these murders as hate crimes, in part due to a lack of hate crime laws that specify gender identity. [xxiii] In Tennessee, an analysis of 2019 hate crime data revealed that 12.2% of all hate crimes in the state that year were motivated by anti-LGBT bias. [xxiv] Of all the hate crimes in the state that year, 31% were cleared either because the victim refused to cooperate or the district attorney declined to take the case. Additional information on the rationale behind each clearance was not included in the report.
While there may be a range of reasons a district attorney declines to file charges, it is their job and duty to treat all cases equally and free from personal biases. Yet footage from a 2018 conference shows District Attorney Craig Northcott admitting that he does not prosecute domestic abuse between same-sex couples due to his religious beliefs. While this incident sparked outrage among the public and some fellow prosecutors, there is no way to hold a district attorney legally accountable for refusing to file certain cases. [xxv]
Ultimately, DAs have the power to decide if charges get filed, against whom, and how severe those charges are. They make the final call on which cases to take on and which cases to leave behind, which survivors are taken seriously, and who gets access to justice. That’s why it’s important for local communities to have access to information about their DAs’ policies and practices, so that they can hold their DAs accountable at the ballot box. [xxvi]
While rural communities are often assumed to be white and conservative, in reality they can also be exceptionally diverse in character, culture, and social fabric.
They do, however, typically face similar socioeconomic barriers such as higher rates of unemployment or underemployment; lower median household incomes; less access to mental health treatment; higher rates of poverty; higher rates of disabilities; and lower rates of high school graduation. Rural counties are also among the hardest hit by the opioid epidemic. Prescription opioid dependence, crimes and seizures are greatest in Tennessee’s rural areas and small towns, particularly in East Tennessee counties in Appalachia. [xxvii]
District attorneys in rural communities have a choice to make. They can continue to prosecute those who are struggling against many socioeconomic obstacles, including addiction, or they can support creation and use of diversion programs such as drug courts and other evidence-based methods of treatment, in rural Tennessee. [xxviii]
During the past decade, while urban incarceration rates have been declining, jail populations in rural counties have drastically increased. [xxix] What’s more, Black and Brown people are consistently overrepresented in rural jails across Tennessee. [xxx]
District attorneys play a significant role in defining the size of local jail populations, determining who gets access to fair treatment and which populations are ignored, as well as deciding which individuals get access to vital services for addiction and mental health instead of incarceration, and who does not. They are critical to ensuring that rural Tennesseans have access to justice, and that incarceration is not the primary response to the needs of our rural communities. [xxxi]