The announcement earlier this month of the death of Brooklyn District Attorney Kenneth Thompson from cancer came as a shock to many. He was just 50 years old and at the height of his career. He leaves behind a wife and young children. This is first and foremost a personal tragedy for Thompson’s family and friends.
Thompson’s death also cuts short a fascinating experiment in the possibilities and limitations of prosecutorial reform pushed from within. He was one of a handful of truly “progressive” prosecutors overseeing large urban districts. Although he only held the position of District Attorney for less than three years, he had shown true leadership in addressing wrongful convictions, and in easing the legal and financial burdens imposed on mostly black and brown low-income residents for minor, low-level offenses. During a period when many are committed to “reimagining” the role of the prosecutor within a “reformed 21st century criminal justice system,” Thompson’s contribution was vital, and his leadership will be missed.
Thompson, the first African American to hold the position of Brooklyn District Attorney, was elected in 2013 over Charles Hynes, who had served since 1989. Thompson immediately moved to create one of the most aggressive Conviction Review Units (CRU) in the country, broadening its mandate to ferret out not just wrongful convictions, but also those convictions that “lacked integrity.” Thompson was not kidding around when he announced that “wrongful convictions…undermine the integrity of our criminal justice system.” In less than three years, the unit exonerated 20 individuals, a fact which made him proud. One reporter noted that “Ken Thompson…is unusual among prosecutors in that he boasts not about the people he has put away but about those he has freed.” His example stands in stark contrast to other District Attorneys, most recently Seth Williams of Philadelphia, who have dug in their heels and persist in retrying extremely weak cases despite clear evidence of innocence.
Thompson also exerted real leadership when he announced, over the objections of the New York Police Department, that his office would stop prosecuting low-level marijuana cases. After his decision, Cyrus Vance, District Attorney of Manhattan, and Anita Alvarez of Cook County, followed his lead. He then put into place a program –Begin Again–aimed at forgiving outstanding warrants for minor offenses. Both of these decisions mostly benefited young black and brown individuals living in Brooklyn, and helped to improve relations between these communities and law enforcement.
But Thompson was bitterly criticized by many reform advocates when he recommended no jail time for Peter Kiang, the police officer convicted of manslaughter for fatally shooting an unarmed black man in the stairwell of a housing project. Some accused him of applying one standard for police officers, and another, far more harsh one, for community members.
Thompson’s response to their criticism was that “Protesters want revolution in the criminal justice system overnight. That won’t happen. The way we’ll bring permanent reforms is when people like me get off sidelines and decide to spend a life of public service.”
His statement, in effect, frames an important question for champions of prosecutorial reform. What are the limitations of a strategy aimed at replacing overzealous prosecutors with less zealous ones? Thompson was extraordinary in his genuine reform impulses and in his sincere efforts to reform the job from within.
But prosecutors still enjoy too much power, too much discretion, and too little accountability. The only way to curb those, according to some, is to fundamentally alter the incentives governing their behaviors and decisions. Last month, a new law was passed in California that did exactly that. Under this new law, a prosecutor who intentionally withholds evidence from defendants can be found guilty of a felony and receive up to three years in prison. While some questioned a solution that once again focuses on prison, others declared such a law as essential to curbing the power of prosecutors.
Clearly, the challenge of “reimagining” the role of the prosecutor is a steep one. It is likely to require a myriad of strategies, focused both on reform from within and from outside, on individuals and on systems. Kenneth Thompson, in a very short period of time, helped us to understand just how much could be accomplished by one individual, and how fragile those achievements can be when not reinforced by systems change. We will have to wait and see whether his reforms will be solidified or weakened by his successors. In the meantime, we are grateful for his courage in pressing for badly needed reforms, and for the very real relief he brought to so many in his community.