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Adam Foss: Can Prosecutors Stem The Tide Of Mass Incarceration?

Mar 16, 2018
Originally published on March 16, 2018 6:50 am

Part 4 of the TED Radio Hour episode The Consequences of Racism.

About Adam Foss's TED Talk

Former prosecutor Adam Foss lays out the damaging effects an arrest, a criminal record, and a prison sentence can have on marginalized individuals. He argues prosecutors can be at the helm of reform.

About Adam Foss

A fierce advocate for criminal justice reform, Adam Foss is the executive director and founder of Prosecutor Impact. Through his organization, he is working to train a new generation of prosecutors who are redefining their role in the criminal justice system, using tools at their disposal to stem mass incarceration.

Formerly, Foss was an Assistant District Attorney in the Juvenile Division of the Suffolk County District Attorney's Office in Boston, MA. Throughout his time as a prosecutor, he chose alternatives to incarceration that yielded better outcomes for public safety, equity and fairness.

For more information on criminal justice reform, see The Real Justice PAC, Free America, Color of Change, and Common Justice.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

GUY RAZ, HOST:

So Adam, what's the U.S. prison population today?

ADAM FOSS: Since the early 1970s, we've seen this dramatic spike in incarceration where we went from a pretty static population of around 350,000 people where we're now up around 2.2 million people.

RAZ: That's almost 1 percent of the American population.

FOSS: It is almost 1 percent of the American population - predominantly people of low socioeconomic backgrounds.

(SOUNDBITE OF MUSIC)

RAZ: This is former Boston prosecutor Adam Foss.

FOSS: One in 3 black men born today will spend some time in jail or prison. One in 3 black women today has a relative in jail or prison. And despite the fact that we only have 5 percent of the world's population, we have 25 percent of its incarcerated population.

RAZ: What do you think happened? What accounts for that spike?

FOSS: There was a spike in violent crimes.

(SOUNDBITE OF ARCHIVED RECORDING)

RICHARD NIXON: The wave of crime is not going to be the wave of the future in the United States of America.

FOSS: And as a result, people pointed the finger at people from poor communities and particularly people of color.

(SOUNDBITE OF ARCHIVED RECORDING)

WILLIAM BRATTON: We will fight for every street. We will fight for every block.

FOSS: And so the response, a lot of academics and scholars believe, was actually the government responding in a different way to the new rights that black and brown people have. And you've seen it sort of throughout history whenever there's a gain whether it's the Emancipation Proclamation or Reconstruction or the civil rights movement...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PROTESTERS: (Chanting).

UNIDENTIFIED MAN: And the police, they have to contain us to brutalize us and murder us.

FOSS: You've seen something replacing the ability to oppress and keep down people of color.

(SOUNDBITE OF MONTAGE)

RONALD REAGAN: A major initiative that I believe can mark a turning point in the battle against crime.

BILL CLINTON: Those who commit crimes should be punished.

REAGAN: Millions of dollars will be allocated for prison and jail facilities.

CLINTON: When you commit a third violent crime, you will be put away and put away for good. Three strikes and you are out.

(SOUNDBITE OF MUSIC)

RAZ: Adam says this history has created the criminal justice system we now have today, and his first experience with that system came in 2006 as a first-year law student on the day he walked into a Boston courthouse. Adam picks up the story from the TED stage.

(SOUNDBITE OF TED TALK)

FOSS: I walked into a courtroom, and I saw an auditorium of people who one by one would approach the front of that courtroom to say two words and two words only - not guilty. They were predominantly black and brown. And then a judge, a defense attorney and a prosecutor would make life-altering decisions about that person without their input. They were predominantly white. Over the course of the internship, I began to recognize people in the auditorium, not because they were criminal masterminds but because they were coming to us for help and we were sending them out without any - prosecuted, adjudged and defended by people who knew nothing about them. The staggering efficiency is what drove me to criminal justice work. The unfairness of it all made me want to be a defender. The power dynamic that I came to understand made me become a prosecutor.

(SOUNDBITE OF MUSIC)

RAZ: I think a lot of us, like, think prosecutor, the person who puts people behind bars. Like, why did you decide to become a prosecutor?

FOSS: One, because I read the definition of the job of the prosecutor differently. When you ask people, well, whoever said that that was our job, people can't answer the question. And it's because we literally haven't thought about it since its inception hundreds of years ago. And when you think about because of what we know about mass incarceration, because we represent the people, the state, then we have an obligation to figure out what to do other than incarcerate people to protect public safety.

(SOUNDBITE OF TED TALK)

FOSS: In the fall of 2009, a young man was arrested by the Boston Police Department. He was 18 years old. He was African-American, and he was a senior at a local public school. He had his sights set on college, but his part-time, minimum wage job wasn't providing the financial opportunity he needed to enroll in school. In a series of bad decisions, he stole 30 laptops from a store and sold them on the Internet. This led to his arrest and a criminal complaint of 30 felony charges. I was standing in arraignments that day when Christopher's case came across my desk. And at the risk of sounding dramatic, in that moment, I had Christopher's life in my hands. I was 29 years old, a brand-new prosecutor, and I had little appreciation for the decisions that I would make would impact Christopher's life. Christopher's case was a serious one, and it needed to be dealt with as such, but I didn't think that branding him a felon for the rest of his life was the right answer.

For the most part, prosecutors step onto the job with little appreciation of the impact of our decisions regardless of our intent. History has conditioned us to believe that somehow the criminal justice system brings about accountability and improves public safety despite evidence to the contrary. We're judged internally and externally by our convictions and our trial wins, so prosecutors aren't really incentivized to be creative. We stick to an outdated method counterproductive to achieving the very goal that we all want, and that's safer communities.

Most prosecutors standing in my space would have arraigned Christopher. Arraigning Christopher would give him a criminal record, making it harder for him to get a job. With a criminal record and without a job, Christopher would be unable to find employment, education or stable housing. Without those protective factors in his life, Christopher would be more likely to commit further, more serious crime. The more contact Christopher had with the criminal justice system, the more likely it would be that he would return again and again and again - all at tremendous social cost to his children, to his family and to his peers. And ladies and gentlemen, it is a terrible public safety outcome for the rest of us.

(SOUNDBITE OF MUSIC)

RAZ: You know, Adam, I wonder - I mean, how do you explain to people who would say to you, hey, you know, this guy did a crime and why should he get, you know, like, a second chance?

FOSS: I hear a lot of debate about choice and accountability and responsibility and if you don't want to do the time, then don't do the crime, or I made it, look at me, not really recognizing, you know, when they say we should be giving someone a second chance that they got, like, 85 chances. And it provides this really bad feedback loop again for that young person seeing all of these other people get through life with all of these chances but they get a second chance, not really realizing that they never had a first chance. And that because they never had a first one, we owe them the runway to screw up many, many times because the behavior they're manifesting is in large part due to a community that they had no part in building.

(SOUNDBITE OF TED TALK)

FOSS: Prosecutors are the most powerful actors in the criminal justice system. Our power is virtually boundless. In most cases, not the judge, not the police, not the legislature, not the mayor, not the governor and not the president can tell us how to prosecute our cases. The decision to arraign Christopher and give him a criminal record was exclusively mine. I would choose whether to prosecute him for 30 felonies, for one felony, for a misdemeanor or at all. I would choose whether to leverage Christopher into a plea deal or take the case to trial, and ultimately, I'd be in a position to ask for Christopher to go to jail. These are decisions that prosecutors make every day unfettered, and we are unaware and untrained of the grave consequences of those decisions.

One night this past summer, I was at a small gathering of professional men of color from around the city. And as I stood there stuffing free finger sandwiches into my mouth as you do as a public servant, I noticed across the room a young man waving and smiling at me and approaching me. And before I knew it, this young man was hugging me and thanking me. You cared about me, and you changed my life. It was Christopher. See, I never arraigned Christopher. He never faced a judge or a jail. He never had a criminal record. Instead, I worked with Christopher. We recovered 75 percent of the computers that he sold and gave them back to Best Buy and came up with a financial plan to repay for the computers we couldn't recover. Christopher did community service. He wrote an essay reflecting on how this case could impact his future and that of the community. He applied to college. He obtained financial aid, and he went on to graduate from a four-year school.

After we finished hugging, I looked at his name tag to learn that Christopher was a manager of a large bank in Boston. Christopher had accomplished all of this in the six years since I had first seen him in Roxbury court. I can't take credit for Christopher's journey to success, but I certainly did my part to keep him on the path.

RAZ: Wow. I mean, you were this brand-new prosecutor, and you took a really big risk.

FOSS: I had the benefit of having an amazing supervisor at the DA's office who was also a black man who gave us the discretion to do what we felt was right with our cases. And he would have protected us if things had gone wrong. And one lesson that I took away is things often don't go wrong. People respect the opportunity to atone and to be responsible for their crimes if the reaction to the crime is not judgment and punishment. And so sitting here today after, you know, nine years in the DA's office, I kept thousands of people out of jail and prison.

RAZ: Wow.

FOSS: And not only did I keep them out, I didn't have to play tricks with the law or defend people that I knew were guilty. It wasn't about that. It was about improving public safety by using the other tools around me.

RAZ: I mean, part of the - part of what makes our country so complicated is when it comes to incarceration, it's a business, right. Like, people make money off of it, and it seems like that's really hard to untangle from the number of people incarcerated.

FOSS: It is, and it's not. Just from an economics 101 standpoint, private prisons can't do the thing that is essential to their survival, and that's put people in them. I have to disabuse people of all these ideas about, well, it's the law and it's the private prisons and it's the bail bonds industry and it's the thin blue line, all of these things. It's like, yeah, but all that begins and ends with the decision of a prosecutor.

RAZ: Yeah because, I mean, you could change the laws, and it'll take some time. And essentially, it sounds like what you're arguing is that right now, if more committed, idealistic, young people get into public prosecution, they can actually make a real-world impact immediately.

FOSS: Tomorrow.

RAZ: Tomorrow.

FOSS: Tomorrow. When you think about the fact that there are 31,000 prosecutors, that 11 million people went through our jails last year, that 650,000 people come out of jail and prison every year, the impact that better decision-making in the front end could have could save us billions of dollars, could make us much safer, can start pulling people out of poverty and re-engender trust in the system that is, quote, unquote, "for the people."

RAZ: So if we are where we are - right? - with the situation in the United States where the deck is stacked against you if you are a young brown or black man - like, before you walk through the door, you are judged...

FOSS: Yeah.

RAZ: ...Is it going to change? I mean, do you think it can change?

FOSS: Absolutely. Even the people of most privilege who are going to the nicest high schools are recognizing and talking about things like privilege. They're talking about things like mass incarceration in school. They're talking about the history of this country in a way that should be taught. And by a confluence of all of those things, their social responsibility is different than their parents or even people in my generation. And so what I say to the sort of hard-line people that are sitting in these offices, crossing their arms and saying this isn't right, is your time is running out. And there are way smarter, more motivated, more fair kids who are ready to take these jobs that want to see a better justice system. And it's just the reality of what I see out in this world. People are not going to take for granted that tough on crime is the solution.

(SOUNDBITE OF MUSIC)

RAZ: Adam Foss - he now heads the organization Prosecutor Impact where he's training hundreds of young prosecutors to change what it means to be a criminal prosecutor. You can find his full talk at ted.com.

(SOUNDBITE OF SONG, "I WISH I KNEW HOW IT WOULD FEEL TO BE FREE ")

NINA SIMONE: (Singing) I wish I knew how it would feel to be free. I wish I could break all the chains holding me. I wish I could say all the things that I should say, say them loud, say them clear, for the whole round world to hear.

RAZ: Hey, thanks so much for listening to our show this week on The Consequences of Racism. If you want to find out more about who was on it, you can go to ted.npr.org. You can also find hundreds more TED talks at ted.com or on the TED app. Our production staff here at NPR includes Jeff Rogers, Sanaz Meshkinpour, Janae West, Neva Grant, Rund Abdelfatah, Casey Herman and Rachel Faulkner, with help from Daniel Shukin. Our intern is Diba Mohtasham. Our partners at TED are Chris Anderson, Colin Helms, Anna Phelan and Janet Lee. I'm Guy Raz, and you've been listening to ideas worth spreading right here on the TED Radio Hour from NPR. Transcript provided by NPR, Copyright NPR.