Interview with former Prosecutor Foss: “The way we prosecute, incarcerate, label and shame has to go”

Adam J. Foss is the founder and executive director of Prosecutor Impact, a non-profit organization which seeks to improve the criminal justice system in the US. He is a former Assistant District Attorney in the Suffolk County District Attorney’s Office (SCDAO) in Boston, Massachusetts. He is a fierce advocate for criminal justice reform and the importance of the role of the prosecutor in ending mass incarceration. Mr. Foss believes that the profession of prosecution is ripe for reinvention requiring better incentives and more measurable metrics for success beyond, simply, “cases won.” Alessia Schiavon, analyst at the Global Committee for the Rule of Law “Marco Pannella”, interviewed him.

AS: In light of your first-hand experience of the justice system, what can you tell us about its current state? And, of course, about the role played by the criminal prosecutor that represents one of the most important actors in the justice system?

AJF: It is interesting how growing up in the US you think that everything here is the best, including our justice system. Even in law school, you are being told that our criminal justice system is the best because of all the protections that it has for people and all of the histories that have been built around it.

However, when you get into the criminal justice system, you see something that is very different. You see a system that is very functional for the people who are dressed up in suits going to this building to perform their tasks but it doesn’t work for the people who are coming there involuntarily either as victims or as people who committed a crime. And when those people enter into the system and when they are being processed through the system, the process is really inhumane, undignified, so slow and expensive.

Very few people who are victimized or harmed stick around, a lot of them leave the system before the end of their case. And for the people who have committed a crime, our options for them are very limited. We punish and shame them for a long time. In fact, we do not really have any creative ideas about how to treat people with dignity and humanity and it just gets really bad outcomes. Obviously, we have a lot of problems with policing in this country, but police play a very limited role in our justice system. Police bring people to the front door but once they are at the front door it is the prosecutor the one who takes them into the justice system.

In my mind, it makes the prosecutor the most important actor. Standing at the gate of the entire system, the prosecutor takes the ultimate decision whether or not a person gets pulled under the quicksand of the criminal justice system or whether or not he/she is allowed to stay out in his/her community and resolve the problems outside the system itself.

Despite that, it is also one of the actors that you do not see in the media. Most of the debate in the United States is around policing and the latest heinous events. However, these killings are only a catalyst. The reason is there is so much social pressure at the moment is actually the result of daily micro, but painful interactions between society and police.

However, prosecutors do not endure that. Police are easier to identify, to focus on because. We see them more often, they are in uniforms, they have their own vehicles, while prosecutors are living inside of courthouses and so you do not see them unless you are inside the courthouse. What is frustrating about prosecutors is that they know that there is a failure happening but that they do not have the awareness to say that they are part of the problem. They would say they are simply doing their job, prosecuting who the police bring to them. However, what prosecutors are doing is as violent or as harmful and, on the top of that, with a much longer-lasting impact on those trapped in the system.

George Floyd’s death has been a catalyst to address critical issues in policing but has also turned attention to deeper and systemic issues in US criminal justice which extend far beyond police brutality, highlighting a much-needed reassessment of the United States’ criminal justice system and how its sentencing structure and penal history has led to some of the highest crime and recidivism rates in the world. For years, Congress and numerous presidents failed to enact critical reforms. However, the actual moment seems to represent an opportunity for change. The reform should include many ambitious goals such as eliminate mandatory minimum sentences for nonviolent crimes, abolish private prisons, get rid of cash bail, and discourage the incarceration of minors. In your opinion, are the federal lawmakers truly ready for these ambitious proposals?

The demand for this to happen started way before George’s Floyd’s death, around 2010 when people really recognised that the problem was not just the police and started focusing on ending the war on drugs and the over-incarceration. In a certain way, from that moment on I think the system has been better, at least at questioning itself about the way to solve its inner problems.

However, what we have yet to wrap our hands around is how to deal with violence and the racial disparities that are evidently present in our system in which troubled kids, immigrants, LGBTQIA, black people as other ethnic minorities are over-represented. When you look at those facts and data and you recognize that middle-class white people rarely go to prison you start to see that the system isn’t just infected by poor metrics and poor ideas about how to resolve harm it is also just extremely racist.

So, dealing with both violence but also the systemic and institutional racism is something that we have really failed to address. And, I am not saying that we haven’t addressed it, but we cannot just think that if a set of prosecutors gets a 90-minute implicit bias training then everything is fixed. We have a long way to go because they system is very resistant to change and what lacks is a change in the culture of all the actors involved who at the moment do not have the humility to question their own actions.

As you can see what happens it is the other way around. Every time someone is shot by police, there is no assumption of responsibility, but only the self-victimising “we get killed too”. They blame everybody else for their problems and unfortunately, most of the people still celebrate them. It is shocking to think that if this were a private business and costumers were complaining and protesting about the services received in all probability that business would make very dramatic shifts towards improvement.

“Tough on crime” and “war on drugs” policies are deeply interrelated. Both express a punitive approach which over the years have disproportionately impacted people of colour, low-income communities, and minors. Although rehabilitative practices are being increasingly implemented, incarceration and other deterrence-based practices remain a large part of a drug offenders’ experience. This is because the topic of non-violent drug crimes requires to address a wide range of social justice issues such as racial profiling, inappropriate use of law enforcement resources, overcrowded prisons, and even education and employment options. However, the implementation of reform based on a more restorative approach will also require an ideological shift in the way Americans view the purpose of criminal justice. Is the time ripe to make this cultural step forward?

The way we prosecute, incarcerate, label and shame people for the rest of their lives needs to go away immediately. The tools that we have used to thwart violence in this country are so violent and ingrained in our culture. If you go into a prison, where we send most people who have committed violence, you can see that there they are immersed in even more violence than was in their lives before entering in the system. And I really don’t’ know how we can expect to make them afraid or make them understand that violence is no good while this punitive context is still in place.

I think if there was ever a point in our history where we could get consensus on doing something restorative this is not the time. This is actually a really bad time in which the current president keeps talking about law and order and very recently openly supported the 17 years old kid that shot two protesters. It is clearly evident that we still need to have people’s mindset shifted.

Recent studies show that austerity in social welfare and public health programs has led to police and prisons becoming catchall responses to social problems and, therefore, adequately funding community-based services would likely reduce the volume of people killed by police. Defunding police is one of the options on the table and also a demand of the Black Lives Matter movement. Is defunding -intended as reallocating some funds away from police departments to social service – a good option? Isn’t it a confusing message that could backfire, especially considering the lack of sufficient training and scarcity of resources in police departments?

What is shocking for me is that they have had these budgets for a long time, and they haven’t figure out how to exercise their job safely without causing harm to other people. On the contrary, police forces are still performing their tasks in a way that has led to a worldwide protest. And, perhaps, more importantly, those who are protesting are the one they have the most interactions with police departments.

Moreover, the simple fact that they get more money does nothing but degrades the trust in the system. There is no doubt that most of the time police deal with other issues that should be having to do, like homelessness, people gripped with addictions, violent mental illnesses, with their guns and zero training – and I say that with compassion and empathy.

But then I look, for example, at the police budget of Los Angeles which is around a half a billion dollars and I scratch my head asking myself the question if this is really what they need to protect and serve the city when only 2% of 911 calls are related with violent cases. Of course, I do not want to defund the police in a way that they are unsafe in exercising their duties, but I am in favour of reallocating some funds away from police departments. I believe that part of that money should be used to help other professionals to assist and support the police in their tasks.

There are about 18,000 law enforcement agencies in America and almost all police work is done at the local and state level. It means that criminal justice reform is going to fall almost entirely to cities, counties, and states administrations. Do you think that States addressing the reform with a variety of approaches may jeopardize the entire plan? And, if so, how do you think this risk should be counteracted?

I can say that being a local prosecutor, I felt much more accountable to my locality and I think that that is because of how big our country is. The dimension of the country comes also in the field of justice with a series of disparate ideas about the way to run things which lead to disparate outcomes that end up degrading the entire system. To alleviate some of that, I think the best strategy would be to reduce the decentralization of data and funding by centralizing and standardizing across the country with some real metrics, but again I see this very complicated. In the US, we also see ourselves independently as states and so making a justice system that is one size fits all would be really difficult.

It has been proposed to adopt best practices to protect civil rights and personal privacy in relation to the deployment of body cameras. However, civil rights and personal privacy must be protected also in relation to the police use of facial recognition technology as other invasive technologies which permit surveillance in public spaces and vastly expand the powers of law enforcement to secretly identify and trace citizens. It has been recently observed that the facial recognition systems have higher error rates that disproportionally affect people of colour, Asians, and other ethnic minorities, but also women. What is your position on the police use of facial recognition?

I am definitely not in favour of giving police more tools. Again, I think that the problem is the culture. Until we fix the culture, then any instrument is going to be used at the expense of those people who do not fit within the norm of dominance. I am vehemently against these types of tools which are created for the worst scenarios.

I was in Boston when the marathon bombing happened, and this was the first and only time in my entire life I felt comfortable with the police using technology but it not what I want for the daily policing routine. I think we can only prevent crime from happening in the first place if there is trust in the system designed to stop crime and we do so in a way that is comprehensive and deals with all of the different types of people and doesn’t require that we hurt them to change their behaviour.

In their efforts to increase efficiency and effectiveness law enforcement agencies across the world are now increasingly relying on AI applications to prevent threats, stage interventions, divert resources in a way that poses significant risks in a democratic society. The trend of using algorithms is also leading to the use of new tools also by justice authorities which are increasingly employing criminal risk assessment tools to inform bail hearings, sentencing, parole decisions, and post-release monitoring with a view to assessing the probabilities of reiteration of crime by the individual or determining imprisonment. This is particularly true in the case of predictive policing and the use of risk assessment tools, which may reinforce or amplify some bias and contribute to prejudicial decision-making and discriminatory outcomes. What is your position on the use of these AI risk assessment tools?

Risk assessment tools are very interesting because they were actually designed to reduce disparities and subjectivity, but they are again a cautionary tale about building strategies when you still haven’t fixed the culture. They are a fancy toll dropped into a really old and arcane system. In fact, those who are building the tools they are building them with their sort of like biases in mind and in this way actually we are producing the exact same things. And I also believe that making our decisions based on the risk of something bad happening is a failure: human begins are more complicated creatures.

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