As protests against police brutality and systemic racism filled streets across the country this summer, a group of Black prosecutors in the nation’s capital began thinking about how they, too, could take a stand.
What began with a few emotional phone calls and emails quickly became a more organized effort of heart-wrenching, reflective Web meetings and detailed policy discussions.
In the end, 32 Black federal prosecutors in Washington signed a 10-page memo to acting U.S. attorney Michael Sherwin outlining changes they say will help ensure that prosecutors make the fairest decisions, void of nonlegal influences and biases.
They called for implicit bias training for prosecutors and the end of a strategy for gun-crime prosecutions they said disproportionately targets Black communities. They also called for a new focus on alternatives to incarceration.
They said the job of a prosecutor should not be confined to an office or courtroom. Prosecutors, they said, should develop relationships in the communities they serve, attending meetings and events. And prosecutors should be required to visit the city’s jail to better understand the impact on those who are locked up.
The memo offers an unprecedented glimpse into the growing angst among prosecutors within the nation’s largest U.S. attorney’s office, the only such office that handles both local crimes — including homicides, drug cases and sexual assaults — and federal crimes including national security and public corruption cases.
The proposals, the prosecutors wrote, would lead to better decisions in prosecuting cases and help secure trust and bring more just outcomes in a city where they said the majority of victims, suspects and witnesses are Black.
“If we purport to be an institution that regards these stakeholders as people, rather than merely numbers or statistics, our response to the instant crisis matters,” the prosecutors wrote in the June 16 memo obtained by The Washington Post. “And make no mistake about it, unequal treatment under the law is a national crisis.”
The fate of some of the proposals, however, became uncertain this week after the White House moved to cancel training sessions related to race for federal agencies, calling it “un-American propaganda.”
In a brief interview Thursday, Sherwin said his office had reviewed the memo and formed several internal committees to explore the requests. But on Saturday, a day after the White House directive, Sherwin — who had earlier repeatedly agreed to speak about the proposals from the Black prosecutors — declined to comment.
'We all have inherent biases'
As they watched video of a Minneapolis police officer kneel on Floyd’s neck and the demonstrations that followed, some of the Black prosecutors said they became increasingly frustrated that their office was not addressing the racial turmoil that gripped the nation.
Working from home because of the pandemic, they sought to keep their cases moving despite court slowdowns prompted by the novel coronavirus. At the same time, they fielded private questions from family and friends about charging decisions when police use deadly force.
They said it made them think anew about the intersection between their lives as Black individuals and their careers as prosecutors charged with upholding the very legal system that so many have decried as unjust toward Black people. They talked about how prosecutors weigh the use of force by police, but their discussion also included a broader look at how prosecutors make decisions in all the cases that come before them.
“We all have inherent bias. All of us. And those biases can affect the charges that we file against a defendant, whether we seek to have that defendant held or released and whether we seek an alternative to jail if there is one,” one of the Black prosecutors said, noting that he was including colleagues of every race. “We are just saying now is the time to examine those biases, admit they exist and work to ensure those biases are not impeding our efforts of securing justice not just for the victim and the community, but even in some cases, for the defendant as well.”
That prosecutor, as well as two other Black prosecutors who signed the memo, discussed their own views as well as the group’s efforts with The Post. They spoke on the condition of anonymity because they were not authorized to speak publicly.
Channing D. Phillips, a former U.S. attorney for D.C. who now volunteers with the criminal justice reform group Fair and Just Prosecution, said such bias can show up in so many decisions prosecutors make daily.
Phillips put forward an example: A prosecutor may argue that a defendant without a job is at greater risk of reoffending than someone who is employed, and ask a judge to impose stringent conditions of release. But is a prosecutor more likely to make that argument for a Black defendant than a White defendant?
“Having a job or not having a job is a valid factor to consider. But having a job or not having a job breaks down along racial lines too,” Phillips said.
Regular implicit bias training, like that called for by the prosecutors, would help people approach those decisions with greater awareness, he said.
The prosecutors’ list also calls for a focus on hiring, retention and promotion of Black prosecutors in the office and recommends working with legal associations for people of color.
Of the 300 or so prosecutors in the office, less than 10 percent are Black in a city that is just under 50 percent Black. The five divisions — criminal, superior, appellate, special proceedings and civil — are headed by White senior prosecutors.
Diversifying the office, one Black prosecutor said, not only boosts morale internally but also sends a more inclusive message to the public. That is especially important to jurors who may be less trusting of the criminal justice system and may become even more so if they see a team of only White prosecutors working feverishly to convict a Black defendant.
After the memo went to Sherwin and his management team, word spread in the office and several non-Black prosecutors expressed support.
“It’s unfortunate that it takes a tragedy like George Floyd to get the country’s attention. But there could be some positives that come out of this. And we are trying to take advantage of this opportunity to search our souls and look in the mirror,” John Crabb, a White prosecutor who heads the criminal division, said Thursday. “We can and should do things better. Think about things we haven’t thought about before. Not for nefarious reasons, but sometimes we all have our own blinders.”
With the national focus on racial reckoning, combined with the push from inside the office, some changes are already happening. Crabb said the office has expanded its civil rights and excessive force unit, which investigates police use-of-force cases in the city. Instead of two prosecutors, it will now have between eight and 10, he said.
Late last month, Sherwin addressed the group’s call to end or drastically change a 2019 anti-crime initiative in D.C. The initiative allowed prosecutors to charge felons caught illegally possessing guns under harsher federal statues. But the program had only targeted Black portions of the city, instead of citywide as announced. Sherwin changed the initiative to remove the geographic focus, a decision he said he had considered before the Black prosecutors submitted their proposals.
Crabb, one of Sherwin’s top supervisors, said the office has formed several working committees made up of a diverse group of prosecutors and staffers to address the memo’s concerns.
Some of the ideas echo those pushed by a new wave of liberal state prosecutors seeking to overhaul the criminal justice system by taking such steps as declining to prosecute marijuana cases, seeking to jail fewer people awaiting trial and calling for teams to visit jails and prisons to better understand the facilities they petition judges to remand defendants.
Black prosecutors in the group said they don’t see themselves in the same camp, but agree there is a need for change and introspection.
Not a 'Black or White thing'
Some of their proposals hark back to initiatives put in place when Eric H. Holder Jr., who went on to become the nation’s first African American attorney general, served as the District’s U.S. attorney in the mid-1990s, some prosecutors familiar with that time said. Holder required his prosecutors to regularly attend neighborhood meetings throughout the city so they could develop better relationships with residents, neighborhood leaders and even detectives.
“It wasn’t a Black or White thing. It was a get-to-know-our-prosecutor thing to have better trust within the community,” said Phillips, who worked in the office during that period. “It was how you developed your cases. It was how you developed trust with community members. If you know who is who, you get to know who the bad guys are. Witnesses get to know you and trust you. Even the defendants themselves. It’s a smarter way to prosecute.”
Prosecutors say that years earlier, they were encouraged to regularly attend community events. But they said those kinds of interactions have become less of a priority. Part of the challenge, they admit, is growing caseloads that demand attention.
Meanwhile, both Black and White prosecutors remain “cautiously optimistic” that Sherwin and his team will move forward with some of the recommendations, another Black prosecutor said.
One of the White prosecutors who received and forwarded the memo to other colleagues in the office agreed with the proposal.
“These ideas go to the very heart of what we as prosecutors are trying to do and that is pursuing justice. And these tools, these recommendations, will only make our office stronger,” the White prosecutor said.
The Black prosecutors said their joint effort and the outward support from colleagues and senior managers was a welcoming step.
“The entire office is an ally,” another Black prosecutor said. “Black prosecutors especially don’t want to be seen as the enemy. We want to do the right thing. But so do our colleagues.”
Still, President Trump’s decision Friday to cease all racial sensitivity training for federal agencies at the same time the nation is examining race relations worries at least one Black prosecutor who drafted the proposals for change.
“What does this mean for all the Black people who work for him, not just in our office, but throughout the federal government?” the prosecutor said of Trump’s order. “At a time when we all were looking to make such positive changes to better ensure justice was fair and equitable. So much progress and optimism, now replaced with even more concern.”
Spencer S. Hsu contributed to this report.
