Clever Earth | Tough-on-crime prosecution corrupts the justice system

Since Labor Day, Republicans have poured an estimated $50 million into advertisements that have attacked Democrats for being soft on crime – or that their progressive brand of justice is too lenient on criminals. Such an attack leads us to explore the alternative rhetoric of tough-on-crime that many older Philadelphians know all too well. 

While some see tough-on-crime as meaning entailing a punitive system overly focused on inflicting punishment, residents also tend to see the rhetoric as embodying the essence of justice: a strict law-and-order approach that makes it clear to criminals that their actions would not be tolerated. For its advocates, being tough on crime means taking a firm stance against immorality and enacting swift punishments in response to it. I argue, however, that a system that bases itself on the tough-on-crime rhetoric blurs the line between justice and cruelty.

“We need the old law and order that felons actually feared.” “Criminals are free to kill and steal without consequence.” “Soft prosecutors encourage repeat offenders by being too lenient on crimes.”

If you ask older Philadelphians about Philadelphia’s current criminal justice system, these are some of the tidbits you are likely to hear. When I told my friend’s grandfather that I was interning at the Philadelphia District Attorney's Office, I became the victim of a floodgate of unsolicited disapproval that I was interning for criminals. When I spoke with a man sitting at a nearby bench at Rittenhouse Square, he expressed wanting to leave the city because crime rates have become so rampant – which he accredited to senseless prosecutors who wanted to legalize marijuana but let criminals walk free. 

These perspectives reflect the goodwill of individuals who truly want a safer community, but they are severely misinformed of what that brand of justice entails for our community. Tough-on-crime prosecution has severely harmed the Philadelphia community and compromised the integrity of the justice system.

Following the election of Philadelphia District Attorney Larry Krasner in 2017, Philadelphia has experienced an intense divide between old and new schools of thought. Many residents express nostalgia for a criminal justice system defined by being “tough on crime” – a rhetoric closely associated with the Nixon and Reagan administrations. For lawmakers, being tough on crime means enacting minimum sentencing guidelines, stringent parole boards, and laws permitting police officers to conduct invasive searches. When framed this way, we may think of vast racial and socioeconomic disparities in prison populations – not just in Philadelphia but across the U.S. – as an issue of lawmaking. A closer exploration reveals that a prosecution culture defined by securing convictions over actual justice is responsible for the injustices so many individuals experience.

Why should we care about what prosecutors do? As Yale legal scholar and sociologist Dr. Issa Kohler-Hausmann has written, “We should care because laws do not apply themselves – as laws don’t apply themselves; someone somewhere must do things and make choices.” 

We should care because the question of whether an individual walks free or faces the life-altering consequences of incarceration falls ultimately in the hands of assistant district attorneys. If we have a prosecutor’s office defined by a culture of punitiveness – where success is conflated with winning cases at any cost – then we should be very afraid of our country’s justice system.

Take the case of former Shelby County district attorney Amy Weirich, whose lasting legacy in Tennessee includes the following: sending more kids to adult court than any other prosecutor in the state of Tennessee (94% of whom are Black), withholding potentially exculpatory evidence in Noura Jackson’s murder case, and instituting the Hammer Award for prosecutors securing the most severe convictions.

For an example closer to home, we can consider our former Philadelphia District Attorney Lynne Abraham – whom many refer to as the “Queen of Death.” Her firm conviction that the death penalty “is manifestly correct” led her to pursue 108 death sentences – a disproportionate number of which were against Black defendants. 

If we have a culture of justice defined by unfettered discretion and rates of successful convictions, then we are encouraging prosecutors to wield their power like a hammer – indiscriminately destroying the lives of both the innocent and guilty alike in the pursuit of securing convictions. The case of Weirich represents what tough-on-crime prosecution entails: a justice system focused on locking individuals up rather than preserving any notion of honesty and fairness. The case of Abraham shows how overzealousness to appear tough means inflicting the most severe penalty over a hundred times. 

While I have contextualized how both cases especially harm minority populations, tough-on-crime prosecution threatens everyone under its jurisdiction in its purest form – regardless of race or socioeconomic class. Prosecutors may feel that the only feasible way to earn career advancement and the respect of their colleagues is to adopt a mindset of winning at all costs. Under a tough-on-crime framework, whether a prosecutor was worth their grain of salt depended on how well they could secure convictions – and not whether they upheld the integrity of the justice system. It should be no surprise why many Philadelphians fear the resurgence of the traditional law-and-order that others feel intense nostalgia for.

When the scope of prosecution narrows its vision on securing convictions and treating those involved in the system with utmost punitiveness, everybody becomes a target.

As Penn students, we hold an especially important responsibility to shape the culture of justice in our city. While we all know Penn as an elite research institution recognized for its elite business and nursing programs, we must not forget that we are home to Carey Law School (considered the 7th best school to study criminal law) and world-leading criminal law scholars like Dr. Paul H. Robinson. The work that we students do here has the power to shape the criminal justice system that we want for ourselves and those closest to us. We have the power to shape the discourse on prosecution and foster a culture of justice centered on protecting the innocent rather than trying to appear tough on crime.

CLEVER EARTH is a College sophomore studying moral and political philosophy from Philadelphia. His email is cearth@sas.upenn.edu.