John Donvan:

Hey, everybody, and welcome to Open to Debate. I’m John Donvan. And in this episode, we’re doing a debate about an experiment in justice. So around the US in some of the bigger cities, the decisions been made by a lot of head prosecutors that they are just not going to prosecute a whole range of crimes that fall into the category of minor, misdemeanors. Basically, those people who commit those crimes are going to get a pass on being pulled into the criminal justice system.

This idea has been put into practice in New York and Boston and Chicago and San Francisco and St. Louis and Milwaukee among other places, and as you guessed, it is very controversial when a former Boston District Attorney who supports this philosophy, a Democrat, who’s up for a federal appointment. Here’s what Republican Senator Ted Cruz said of her on the senate floor.

Ted Cruz:

Ms. Rollins is part of a web of left-wing District Attorneys across the country who see it as their job not to prosecute crime, rather to protect criminals.

John Donvan:

So what sort of offenses are we talking about that count as minor? It is different from city to city, but think trespassing, driving without a license, possession of drugs, jumping a subway turnstile, disorderly conduct, public urination, that sort of thing. So what is the thinking behind this philosophy? And what is the evidence of its impact and what other responses to minor crimes are under consideration?

That’s what we’re going to examine as we take on this question, should prosecutors pursue minor crimes? That is our debate. So let’s get into it and meet our debaters in arguing that the answer to that question is yes. I want to welcome former US Attorney for the Central District of Illinois John Milhiser. John, thanks so much for joining us on Open to Debate.

John Milhiser:

Yeah. It’s great to be here. Thank you.

John Donvan:

And arguing that the answer is no, a returning debater to Open to Debate, a former federal prosecutor at the US Department of Justice and a professor at Georgetown Law, Paul Butler. Paul, thanks so much for coming back to Open to Debate.

Paul Butler:

Hey, John. It’s great to be back.

John Donvan:

So before we start, I’d like to get a sense from each of you about why this argument matters to you, why, why you are here even making the argument, what motivates you and what you feel the stakes are. So John, I’ll go to you first. What matters for you about this argument? Why are you even here making it?

John Milhiser:

Right. Well, a couple things. One is what is the role of the modern day prosecutor? You know, how can prosecutors around the country best do their job, keep their communities safe, uh, and be effective? So we need to have that discussion. And number two, we need to restore faith in government and at the top of an essential function of government is keeping the community safe. And you have jurisdictions around the country when they have a prosecutor that is not doing their job, uh, they don’t feel safe. And indeed they are not safe and crime has increased.

John Donvan:

Thanks a lot for that John. Paul the same question to you and why did you want to take this on?

Paul Butler:

Because this is personal for me. I was a prosecutor at the Department of Justice working on one of the most high profile cases prosecuting a US senator for public corruption. While I was working on that case, I got prosecuted for a crime that I didn’t commit. It was a petty misdemeanor or a silly little Fred and Barney dispute about a parking space.

I tell that story in my first book Let’s Get Free. I want folks to get that book, but I’ll give you a hint about how things worked out. They worked out fine for me. They worked out fine for me because I had legal skills. They worked out fine for me because I hired the best lawyer in town. They worked out fine for me because we made sure the jury knew things like I went to Harvard Law School and Yale for college. Things that shouldn’t have mattered but typically do.

The other reason things worked out fine for me was because I was innocent, but when I thought back, I would rather have been guilty and had the great lawyer that I had than innocent and like most people who are charged with the misdemeanors that have to experience that awful power of the state to stigmatize and punish for the pettiest of offenses.

John Donvan:

Thank you very much for that, and to you, John, as well for sharing with us why this issue matters to you, but then we have an argument to have here. So let’s get on to our opening statements. We want each of you to take a few minutes to explain your position. And John, you are up first, in answer to the question should prosecutors pursue minor crimes? You answer yes. Tell us why.

John Milhiser:

I’ve spent the majority of my career as a state and federal prosecutor working on these very issues, and the main overriding issue of public safety and safe communities. I previously served as a United States Attorney for the Central District of Illinois, prior to that I served as the state’s attorney or local DA for Sangamon County, which is in Springfield the capital of Illinois. In both positions my goal was the same, to work each day to make my community safer. And that should be the goal of every prosecutor in this country.

At the outset, as a former US attorney I recognize that federal prosecutors and federal law enforcement play a very important part in the investigation and prosecution of crimes in this country, however, the bulk of the heavy lifting in prosecuting crime in the United States is performed by state and local prosecutors. These prosecutors have a tremendous amount of discretion and power, and unfortunately, as we have seen in some jurisdictions, when they come in and fail to do their job, crime increases, not prosecuting minor crimes leads to more crime and does not get these individuals who are committing these crimes the help they need, and it does not reduce recidivism.

And that should be a priority for every prosecutor in this country and that is putting those that are committing these crimes in the best position to not reoffend. This will help make communities safer. Earlier this year, I along with several other US attorneys from around the country started a bipartisan organization to assist in this effort, to achieve responsible prosecutors in every jurisdiction. And it’s called the American Center for Law and Public Safety. And we have five core principles that we believe are needed by responsible prosecutors to be effective.

Number one is prioritize public safety, number two, respect for the rule of law, next is collaboration with law enforcement. Law enforcement has been attacked around this country. Sure, there are issues and things that can be improved, but they are indeed important and have to be a part of the solution in safe communities. Support victims’ rights often lost, uh, in crime that is occurring when we talk about the defendants and which is important, but is the victims in these crimes and the increase when you see these jurisdictions where minor crimes are not prosecuted, the increase in the victims, and it’s affecting those same communities that these prosecutors say they’re trying to help.

And lastly, support post-sentence re-entry. That’s incredibly important, because these individuals that are getting locked up whether it be in jail or prison are going to get out, 99% are going to get out, and again we have to put them in the best position to not reoffend. We have to help them. Being a prosecutor is a difficult job, but an important one and we need good effective prosecutors in every jurisdiction. And I look forward to this discussion today.

John Donvan:

Thank you very much John Milhiser. And now Paul Butler, it is your turn. Your answer to the question should prosecutors pursue minor crimes is no, please tell us why.

Paul Butler:

Good day ladies and gentlemen of the jury, my name is Paul Butler and I represent the people. When I was a prosecutor that’s how I started my opening statement. I prosecuted misdemeanor crimes in the District of Columbia. During the time that I did that work, I learned that arresting people and punishing them through our probation system and our penal system is a recipe for disaster. If you go to Criminal Court in DC, you would think that white people don’t commit crime, but Black and Latinx people, those are some bad dudes. That’s the message that misdemeanor prosecution sends.

Literally millions of people commit those crimes every day, but millions of people don’t get locked up. Pretty much every study of how law enforcement exercises its mass discretion tells us that police and prosecutors focus on poor people and racial minorities in their enforcement of petty crimes. Uh, the woman on her porch in bed style Brooklyn drinking a Bud Light, she gets handcuffed, mugshot, DNA sampled, bail set, guilty plead criminal record, the woman with a bottle of Chardonnay having a picnic in Central Park, the cops leave her alone.

The Justice Department did a study in Ferguson Missouri, that’s emblematic. Ferguson is where an unarmed Black man named Michael Brown was killed by a police officer. Mr. Brown was originally stopped for a misdemeanor walking in the roadway, many of the high-profile tragedies of US citizens killed by police have stemmed directly from officers trying to enforce these petty offenses. Eric Garner died after NYPD officer placed him in a chokehold. Garner’s crime, allegedly selling a single tobacco cigarette in a public park. Tyre Nichols got tortured in Memphis and five officers are now charged with murder. They originally pulled him over for an alleged traffic infraction.

And then, Minneapolis Police Officer Derek Chauvin put his knee on George Floyd’s neck for more than eight minutes after Mr. Floyd allegedly tried to use a fake $20 bill. The Justice Department tells us a lot of this is about the system making money from the people who can least afford it. When somebody is convicted of a petty offense, often there’s a big fine and the person is required to pay court costs. The Justice Department report said that Ferguson relied on those costs to operate its city and the people who those laws were enforced against were the city’s Black residents, white folks got a pass. But here’s the thing, the injury is not only to equal justice under the law, it’s also to public safety.

When a crime goes down in the hood, a lot of people know who did it, but if your experienced with the cops is that they’re the ones who pulled you over for driving without a seat belt, you don’t want to cooperate with those guys. The Justice Department tells a story about a woman in Ferguson who called the police, because her boyfriend was beating her up. By the time the cops got there, he was gone. The cops look around the apartment, “Well, does he live here?” She said, “Yes.”

The officer said, “You’re under arrest.” His name isn’t on the lease. That’s an occupancy permit violation in Ferguson. You’ve had all these bad experiences with officers for petty stuff, you don’t want to cooperate with them. So two numbers to leave you with, 80%, 80% of criminal cases in this country are misdemeanors. 13 million. 13 million Americans get charged with misdemeanors every year.

To show you how arbitrary misdemeanor prosecutions are, be really careful in New York City on Wednesdays. That’s when more arrests are made than any other time during the week, but that’s not because that’s when the most serious crime goes down, Wednesdays are when the most police officers are on duty and that’s why we have the most arrest. Too many jurisdictions have quotas where cops have to make a certain number of arrests, again, almost all for misdemeanors. These people who get arrested, they’re more unlucky than they are hardened criminals.

John Donvan:

Thank you very much Paul Butler. And so, now we know where each of you stands on the question we’re debating. We’re going to take a break and when we come back, we will talk. I’m John Donvan. This is Open to Debate. We’ll be right back.

Welcome back to Open to Debate. We are debating this question should prosecutors pursue minor crimes? We have heard opening statements from John Milhiser and Paul Butler. And to get a sense of what we are talking about, we heard John, uh, John Milhiser make the argument that not prosecuting leads to more crime, in fact, and it does not help those who have committed the crimes get the help they need and it does not lead to a reduction in the number of repeat offenses that basically there needs to be a respect for the rule of law and that prosecutors deciding to rule out a class of crimes as prosecutable is not living up to the oath that they take.

We heard Paul Butler make a case that the pattern of punishment of people who are accused of and prosecuted for committing minor crimes lands disproportionately on racial minorities and on the poor. He says that this in itself is a problem of inequity that he thinks in itself makes the case that prosecutors should not be pursuing these crimes. So there’s not necessarily a lot of overlap between the two points that you are making so I would like to unpack some of it, uh, by starting to go back to you, Paul, as you make the case that prosecution of, uh, minor crimes is falling disproportionately on, uh, racial minorities and poor people, if that were not the case, if somehow more equity could be brought to the pattern, would you still be making the case that minor crimes should not be prosecuted? Is there something else about the very nature of the prosecution of minor crimes that you object to?

Paul Butler:

Well, I would rather have law enforcement concentrate on homicide and rape and carjacking. American communities and families will be far safer than, again, if 80% of criminal resources or criminal prosecutions are for misdemeanors. Uh, that’s not going after the people who are causing the real harm.

John Donvan:

Okay. Thank you. I wanna take that to you, John. And, and John, in your answer, I would like you to address the, the inequity factor that Paul is talking about. But also take on that it’s really the big crimes, it’s the, it’s the serious stuff that should be attracting the attention, the energy, and the resources of prosecutors. So if you can take on that sort of double-barreled question?

John Milhiser:

Uh, well, I think the little crimes, uh, lead to, you know, the non-enforcement of little crimes lead to, uh, bigger crimes. Um, and I’ll give you a quick example. So I taught for a year in an alternative high school, 2021, 2022 after I was done being US attorney. That was right after COVID, there was a teacher shortage so I taught at a high school. And what I found, which was corroborated by my other teacher friends was that these students coming back from COVID when they had no structure, they had no authority figure helping them, it was very difficult for them. They need rules and structure.

Um, and it’s much like society. And prosecutors provide that same structure, those same rules and these small infractions need to be prosecuted and there has to be accountability for actions, if not, then there is just a disregard of authority and that leads to larger crimes, not to mention what I touched on earlier when we’re talking about getting these individuals help, getting them into the system so they can be diverted, diversion programs for certain offenses, specialty courts to help individuals with mental, that have mental illness or drug problems and helping those individuals and really looking at the offender to put them in the best position to not reoffend.

John Donvan:

So I, I wanna come back to you on the equity part of the question, but you answered the, the other piece of it.

John Milhiser:

Okay.

John Donvan:

I wanna bring that to Paul. Paul, what I hear John’s case being is that, that in a sense the small crimes are kind of a gateway to bigger crimes. So the sort of the case that these, these small crimes if they’re not prosecuted it seems to send a message that, uh, that lawlessness is okay and that that’s inherently, inherently not going to lead to public safety. So what about that logic? If you can add- address the logic that he’s presenting there.

Paul Butler:

I didn’t hear any logic. I heard a couple of stories about him and another school teacher. The new movement for reform of the criminal legal system is called Smart on Crime. It uses evidence-based approaches as opposed to the stories. Well, what the evidence tells us is that first of all, what we’re doing now just doesn’t work. If you get incarcerated and you’re a young person, uh, within about a year and a half, statistically, you’re going to be right back in jail.

So whatever is happening, it’s not providing the kinds of services that communities need and individuals need, uh, to respect the law. The other issue based on evidence is if you compare somebody who gets arrested and prosecuted and punished for a minor crime, uh, with someone who commits that same offense, but there isn’t the punitive response. Well, the evidence shows is that that person who gets the break is less likely to re-offend.

You know, you asked, John, about race and I didn’t hear him say anything at all about race. What I heard him say is that small infractions needed to be prosecuted for the good of the community, but race is key because we already know that white folks largely don’t get prosecuted for those crimes. I think when it comes to arresting people, prosecuting people, punishing people, what is good enough for the white community is good enough for communities of color.

John Donvan:

Well, well, Paul, I wanna say in fairness to John that I, I told him that I was going to put a pin in the race question and come back to him on it, and that’s what I’m gonna do now. So John, can you respond to that part of Paul’s argument?

John Milhiser:

Well, I, I will and that’s, it’s not only Paul’s argument, it is others when you see these so-called progressive prosecutors in jurisdictions around the country. I’ll use Kim Foxx, state’s attorney in Chicago as an example. They come in and they want racial equality in the criminal justice system, but you see what happens in Chicago and it happens in cities all around the country when these prosecutors come in stop prosecuting offenses, crime goes up. Uh, and in fact, in Chicago in 2021, Chicago recorded over 800 murders. In 2022, nearly 700, and both of those were more than any other city in the United States. With African Americans comprising approximately 80% of those killed.

And what has lost, not lost on me or responsible prosecutors around the country is that the victims oftentimes in these cases are minorities, the same people that they want to help with this racial equality in the criminal justice system are, are ended up being, uh, more victimized because of their policies.

John Donvan:

But can we absolutely establish cause and effect between these policies and the statistics that you’re talking about given that there’s not a ton of actual, uh, analysis and study, uh, in the sense, in this sort of sociological sense?

John Milhiser:

Right.

John Donvan:

And there can be so many factors coming into play.

John Milhiser:

Yeah. Well, no. I, I completely agree. I mean, and Chicago is just one example. I think if you look in St. Louis where the Circuit Attorney Kim Gardner resigned, uh, that was another so-called progressive prosecutor who’s in there. Look at what’s happening in Portland or San Francisco or these cities where they have these prosecutors that come in with a political agenda.

And I need to say at the outset that the job of a prosecutor is apolitical. You know, this is not… I mentioned earlier, this is not a partisan issue, uh, in my mind, um-

Paul Butler:

Except that state prosecutors run for office. State prosecutors run for office.

John Milhiser:

Oh, they, they do run for office. I run-

Paul Butler:

So Democrats run against Republican.

John Milhiser:

I, they, they do have to run.

Paul Butler:

It’s inherently political. And if you wanna talk about progressive prosecutors, guess what? Kim Foxx got elected. Guess what else? She got re-elected. So her progressive policies are what democracy demands. Uh, they’re what the people of Chicago are calling for.

John Milhiser:

You know, Kim Foxx is not running again. Um, and when you look at Kim Gardner and other so-called progressive prosecutor in St. Louis, she resigned. So you see these policies. And, and again, it’s… I’ll, I’ll go back to my position that it is an apolitical position. Sure. I ran, um, and it, I had to run for election and get elected, but once there, it isn’t a political position. And you see prosecutors that come in and have a personal agenda when they get there, they are not effective. And they are dangerous.

There’s not a Republican or Democrat issue, it is a good prosecutor versus bad prosecutor issue. Uh, and, you know, when, when you look at what a prosecutor needs to do in prosecuting minor offenses, they need to have every tool available to them in the toolbox to do their job. It’s a difficult job. It’s, it’s more difficult now than it was 30 years ago, but we’ve made so much progress when I talk about sort of that progressive movement of diversion, getting folks the help they need so they don’t reoffend.

Paul Butler:

John keeps talking about how it’s so great for kids to get prosecuted, because then they get the help they need. Uh, why do you have to be arrested, have your rights read to you? Again, the mug shot, the fingerprint, the DNA sample, the record in order to get help. Wouldn’t it be great if people who are at risk or causing harm could get service, the intervention they need that will keep everybody safe without first having to be arrested and punished?

John Milhiser:

I, I agree. I, I agree 100% with Paul on that and when we, as soon as we can identify these individuals and get help for them, I agree. The earlier the better, 100%.

John Donvan:

All right. I wanna talk about something specific because, again, I wanna return to the logic of the idea. Paul, you said there was no logic to, uh, the argument that John was making. I to, I, I, I beg to differ just in the sense that he was making the case that small crimes could lead to larger crimes. That’s not an illogical argument, you may disagree with it. But let me get specific and just take an issue that’s very much in the public discussion and that is the crime of shoplifting.

Um, and it’s, it’s a sensitive crime, because there are out there, there are shoplifting rings, which cause great damage, but there are also people who shoplift diapers because they absolutely desperately need them for their kids and they don’t have money. Should shoplifting be a prosecutable crime? Just as that specific as an example.

Paul Butler:

We absolutely need an intervention, a response from the state when someone takes something that doesn’t belong to them. But in order to stop people from doing that, they are way more effective ways than trying to lock them up. And the first instance, only a small minority of shoplifters actually end up getting caught. So there’s no deterrent effect to trying to criminalize that conduct, because almost everybody gets away with it.

The clearance rate is the official term for when officers make arrests when our crime is reported to them. These offenses like shoplifting they have some of the lowest clearance rates. So again, the only folks who are getting the car are the guys who are either really dumb or who have bad luck, almost everybody else is getting away with that crime.

John Donvan:

All right. I wanna take back to you now, John. The logic that I’ve heard from the other side of the argument that if you bust somebody for stealing diapers or jumping a turn style and you, you know, you bring them into the system at any sort of level or any sort of depth, they get a criminal record, that stays with them when they try to get a job. If they spend a little bit of time in jail they’re away from their families, they might get fired for that time. That the prosecution of these smaller crimes among people who have kind of less power in society becomes a self-fulfilling increasing burden on them. That if they got a pass the first time around by, by having no prosecution whatsoever, they get more of a second chance in life rather than having the mark of Cain on their record.

John Milhiser:

Well, I agree for these non-violent offenses, shoplifting, other ones, for sure, people should have second chances, and one mistake should not ruin their life or make it so difficult for them to get housing or employment.

John Donvan:

If it gets on their record, it’s on their record.

John Milhiser:

Well, I understand. So but, but diversion programs, second chance probation, there are programs out there and I think responsible good prosecutors understand that. When I was state’s attorney, I started a diversion program for retail theft where charges would not be filed if you went through a program. And I, I think that’s important, and, and that can happen for other offenses too, and it does around the country. And I would train young prosecutors in this. Before you make somebody either a convicted misdemeanor or especially a convicted felon, all the ramifications that come from that, you need to think of it.

Our job is not just to convict people and lock them up, but to make the community safer. And again, I go back to putting these people in the best position to not reoffend and agreed, that makes sense. And I’ve never said that we should prosecute every single person and give them a criminal record. I’m just saying, “We can’t just have the police go do nothing and they just get right back out.” That will have the unfortunate consequence of increased crime, and it leads to a more violent crime, uh, and businesses leaving, whether it be in San Francisco or in Chicago, whole businesses leaving areas because of the retail theft that’s going on, which affects those individuals who don’t have the means, right? To leave that area where that store is closing down.

John Donvan:

Let’s, let Paul jump in there.

Paul Butler:

I’m still not understanding how if somebody jumps a subway turnstile or drinks a can of beer on their stoop that that’s going to make them a rapist or a murderer or a carjacker. I’m not understanding that, because there’s no evidence that supports that. And when John says that he understands there are all these wretched collateral consequences to getting arrested, including getting saddled with a criminal record that limits your employment and education prospects for years. When John says he gets that, but he still supports trying to arrest people for petty offenses. To me, that’s like the prosecutorial version of let them eat cake.

John Donvan:

Paul, I think what I, what I think I hear John saying is that if you just announce, “Hey, everybody, it’s, you’re not going to get touched for trespassing, you’re not going to get touched for shoplifting, you’re, you’re not going to get touched for maybe vandalism.” That’s a formula for, for disorder and lawlessness. (laughs) And, and I’m not-

Paul Butler:

That’s a great point. So-

John Donvan:

… I’m, I’m not hearing you respond to that particular scenario.

Paul Butler:

Okay. So what if rather than getting arrested, handcuffed, book for jumping a subway turnstile, you got a ticket. That’s what’s happening in New York right now, and the sky hasn’t fallen down. Kids don’t get saddled with these criminal records and police and prosecutors can focus on the violent crime and the subways that New Yorkers prefer they direct their energies to.

John Donvan:

What do you think about that John, that you, you make it like a traffic violation, these level of crimes turn them into sort of traffic violation type of issues where you, you know, you speed you don’t get a criminal record for it?

John Milhiser:

I, I think it’s a slippery slope. We need to figure out a way to get these individuals, uh, the help they need so they stop this behavior, whether you, you know, jump into turnstile or retail theft and kind of that hammer over their head of the court system can oftentimes help. But let me give you a quick example. So I was on a committee several years ago with a sheriff from a major county in California, and he was talking about, uh, the issues they have with the homeless and the giant population of mentally ill that are living under the bridges and these tent cities and they used to be able to go out there and kind of help them and take them to hospitals or other places, but because now they can arrest them, they cannot get them the help they need.

Now for sure the police don’t have all the answers, you need gover- other government agencies, not-for-profits, uh, the entire community, quite frankly, uh, to help out and help these individuals or reduce crime. And I think a good prosecutor knows that, uh, they work with partnerships and collaborate with other individuals in the community, uh, to keep the community safe, whether that be encouraging folks, uh, to get mental health treatment, substance use treatment, housing, employment, all those things that somebody needs, uh, to, to lead a productive life.

Paul Butler:

Really, John? You need to get arrested (laughs) in order to get housing and employment services. John said that-

John Milhiser:

Well, I, I never said that.

John Donvan:

No. He did not say that, Paul.

Paul Butler:

No. But you just… What he just said was that it was bad that homeless people can’t get arrested, because then they can’t get the services they need. I think that that’s a failure of imagination, that’s a failure of ambition, and that’s not really believing in the opportunity that every person deserves and they shouldn’t have to get arrested in order to have that opportunity.

John Milhiser:

I agree with you, but the problem is they don’t go. They refuse. I’ll use drug courts. So when I was state’s attorney, we started a drug court, a mental health court, a veterans’ court so we could help these individuals, because we kind of had that, um, the ability to if they violate sanctions, and, and other, if we didn’t, it was very difficult to get them into treatment.

I’m all ears if there’s ways to magically get these people to cooperate and go into treatment, um, but it’s very, very difficult. And so, that’s why when I talk about a prosecutor having all the tools in their tool belt to do their incredibly difficult job, they need that. And not to mention resources for law enforcement. So we send the police out there to arrest this individual, the police officer is like, “I don’t want to take them to jail. The emergency room says, ‘I’m not going to take them.'” And there is no place to put them. So they drop them off on the corner so they can go back to that tent under the bridge. We’ve got to be better than that.

John Donvan:

We’re going to continue our discussion, uh, on the question of whether prosecutors should be pursuing minor crimes and we’re also going to bring in some new voices to move the conversation along when we come back. I’m John Donvan. This is Open to Debate.

Welcome back to Open to Debate. I’m John Donvan. I am joined by John Milhiser and Paul Butler and we are debating this question, should prosecutors pursue minor crimes? In just a few minutes, we’re going to introduce some journalists who cover these issues and bring their questions into the conversation. But before we do, I just wanna take note of the fact as I said earlier in the program, we’re not actually hearing a whole lot of analytical study being dedicated to this issue, but there was a study that did come out last year, um, some researchers at NYU and Rutgers in Texas A&M, um, did, did some work that looked at first-time offenders and the impact on them of being prosecuted or being not prosecuted, what, what was the effect on their pattern of committing crime again?

And I want to quote from that study. It says, “That we find that for the marginal defendant non-prosecution of a non-violent misdemeanor offense leads to a 53% reduction in the likelihood of a new criminal complaint.” So John, I’ll go to you, to you first.

John Milhiser:

I would have to know more about the non-prosecution. When I was prosecutor, if I could divert it where charges weren’t filed and they went through a class, uh, whether it be, you know, a victim impact panel or went to counseling, if, if that is considered, uh, non-prosecuting, then, yes. Um, I, I think that can be incredibly beneficial. And, and it, it makes sense for those first-time offenders, uh, but if it’s just non-prosecuting by, um, not doing anything, uh, that doesn’t work, because I think those individuals then continue that behavior.

Paul Butler:

Except that’s not what the studies show. People who didn’t get prosecuted were less likely to reoffend than people who did get prosecuted.

John Milhiser:

I mean I’m not familiar with the study so it’s very difficult for me to, to discuss the specifics of it other than to say, um, these individuals, we need to put them in the best position to not reoffend, get them the help they need, and by having all the tools in the toolbox for a prosecutor, that makes the most sense.

Paul Butler:

Yeah. So I, I take that to mean that once we send John this study, and he’s persuaded, that I won this debate. He understands that if you lock up people for petty crimes, the evidence, the data suggests that’s chromogenic. It makes those folks more likely to commit crimes as opposed to the approach of not punishing everybody who makes a little mistake.

John Donvan:

I wanna bring in a journalists who have been listening to the debate and, uh, and know, and know this topic very, very well. And I wanna start with Deborah Becker, who is a senior correspondent and host at WBUR in Boston 90.9 FM. Uh, Deborah, thanks so much for listening in and for now contributing to the conversation. We would love to hear what question you would put to either or both of these debaters.

Deborah Becker:

Well, thanks very much for having me. What I’d like to sort of take it a little bit, uh, a step further and talk about mass incarceration, because the more charges on someone’s criminal record, the more likely they are to face a jail sentence, even if those are a series of minor charges because there are sentencing enhancements based on a number of times someone is involved in the criminal legal systems. And then, of course, there’s all the collateral consequences that come with incarceration and, and it does nothing to reduce mass incarceration. So what do you say about that?

John Donvan:

Thanks, Deborah.

John Milhiser:

Well, I would say if when you look at, um, reducing crime, protecting the public, locking somebody up, and using those enhancements, in certain cases they can make sense, uh, to protect the public. I think there is a deterrent effect, uh, when people on the street see somebody commit a crime and they get locked up. I, I would say this also, we have to reduce the population in the prisons, but I think step one of that is to reduce the criminal behavior.

John Donvan:

Paul, you also get a crack at this question.

Paul Butler:

John said that the number one responsibility of the prosecutor is to protect the public. The evidence tells us that the public is not protected when people get arrested for jaywalking. In terms of deterrents, what we know is that if it works, it’s more based on the certainty of punishment than the severity of punishment. In other words, deterrence happens if you think you’re likely to get caught. It really doesn’t matter how much your punish.

So again, if we really want to get serious about solving this quality of life kinds of issues, locking folks up isn’t doing it. If, if you don’t work on those root causes, if all you have is the handcuffs, then yeah. You’re gonna use the handcuffs.

John Donvan:

All right. Deborah, I wanna thank you for your question. I would now want to bring in from the Washington Post, Tom Jackman. Tom, thanks for joining us and we would love to hear your question.

Tom Jackman:

This is a question for, uh, Paul. Paul, uh, in 2018, a new prosecutor in Dallas County, a former state judge was elected and said, “We’re not gonna prosecute misdemeanor theft up to $750.” The crime did not necessarily go up or down, but when he was re-elected last year, he then announced, “I’m rescinding that policy. We are going to prosecute misdemeanor theft.” I think he had gotten terrific blowback from businesses, from citizens who saw a video of people doing shoplifting. So what do prosecutors do when they’re trying to implement a policy like this and they’re looking at severe pushback?

Paul Butler:

Uh, the Dallas prosecutor did get re-elected as you mentioned so it sounds like the citizens mainly support his policies. The policy didn’t seem to have an impact on the shoplifting rate one way or another. So if you have a choice between hurting people with punishment or not hurting them, and you know that hurting them with punishment doesn’t solve the problem you’re trying to solve, then why hurt them?

John Donvan:

All right. Thank you, Paul. And Tom Jackman, thank you for your question. I now wanna bring in Kyle Sammin, who is an editor at Broad and Liberty. Kyle, thank you for joining us. Please come on in with your question.

Kyle Sammin:

Thanks for having me on. Uh, my question’s for Professor Butler. And you, you talked about reducing some of these non-violent misdemeanors to just giving a ticket. How many tickets would one person have to get before it went back to being a real crime?

Paul Butler:

So again, if it’s a petty offense, the problem is the cost of prosecution. So yeah. These laws are passed by city council and I would like that they were respected, but if they’re not respected, I don’t see that the answer is to try to throw everybody in jail even when people have repeated offenses. If we think that they’re petty, then what petty means is that we can deal with these issues, there are other interventions. And again, I don’t think that that means that at some point they need to be locked up.

John Donvan:

Thanks very much, Kyle. And thank you, Paul, for that answer. We’re coming down to the end of our time, but I wanted to talk about the impact on the victims of a system in which the minor crimes are not prosecuted.

John Milhiser:

Yeah. Thanks, John. Um, you know, when we have this discussion, we talk about not prosecuting your minor offenses and, “Oh, it’s only shoplifting. It’s only this.” But then, you, if you look at the ramification to those neighborhoods, to the businesses, not only that does that affect those retail merchants but the individuals in those neighborhoods. Um, oftentimes the ones that don’t have the ability to go to the suburbs or other places, uh, to do their shopping.

So they’re the ones that are affected, uh, the victims are affected. Prosecutors don’t have the answer, but it’s also not the answer just not to do anything and just let these individuals go. We need to direct them to the help they need. We need resources for the police and resources for prosecutors.

John Donvan:

So you-

John Milhiser:

And, and by doing that, we, we’ll help the victims.

John Donvan:

That’s the part of the question I thought you were going to take on is if the victims of these crimes have a sense that nobody’s going to do anything about them, whether, you know, enough, we’re not talking about serious violent crimes, although simple assault is considered a misdemeanor in some places, to… If, if the victims of a, of a neighborhood where there are burglaries just feel there’s just no point in calling the cops, because they’re not going to do anything, that, is there, is there a moral hazard there? Is that what you’re arguing?

John Milhiser:

Uh, for sure, and there’s a quality of life issue. So as I said earlier when we talk about trust in government and one of the essential functions of government is to provide that safety, uh, provide that security, uh, we’re a society and a country of laws and, and they need to be followed, even those minor offenses need to be followed and we need to direct those individuals that are breaking the law, uh, into the resources and the help they need so they can live law-abiding lives. That’s what we want.

Paul Butler:

We’re not having a hypothetical conversation about what the world will look like if we didn’t lock up or prosecute people for minor crimes right now in most places in this country that’s what’s happening. And so, we know the results of that. John keeps coming up with this [inaudible

] man of the choices either to prosecute or to do nothing. That’s a false choice. We need to use our American ingenuity, our Black excellence to come up with ways to keep communities safe that don’t involve trying to put everybody under the jail.

And finally, John, when we talk about victims. I think a lot of times we imagine a white woman. Think instead of a victim as a young Black man, statistically, he’s the most likely person to be the victim of a crime in this country.

John Donvan:

John, do you want to respond to that?

John Milhiser:

Well, I would say it is, it is for sure not lost to me and I agree. I mean when I, I referenced a statistic from Chicago when you have over 800 murders and 80% of those killed are African American, and when you look at nationally, Blacks constitute 13.5% of the population, yet they’re more than 53% of the nation’s homicide victims. And that’s unacceptable.

So there’s a book called Don’t Shoot, which was by David Kennedy. And it said basically that in communities, it’s a small percentage of the population that is committing a majority of the crime, and we need to target that small percentage. But what it found was not only were they more likely, that small percentage to be the offenders in crimes, they were much more likely to be the victims in crimes. So it’s these same individuals that we’re talking about, we need to help them, because they’re not only going to be the offenders, but they’re more likely to be the victims of crime.

John Donvan:

John, Paul said in his opening statement and, and I’ve asked you about it a few times, but I, I’m not sure that you’ve directly addressed it, perhaps you have. That the system on its face is problematic, because the pursuit of small crimes where they are pursued is hitting disproportionately to the general population, minorities and poor people. Do you agree that that’s factually true? And secondly, do you agree that that’s problematic in itself?

John Milhiser:

I can talk about my experience as a state prosecutor. So when I, I would review a report and I’d look at it, um, you know, the charging decision, um, is not based on the race of the individual, except for hate crimes. It was the facts of the case and what the law is, uh, and looking at, uh, the entire case. Uh, so that’s where the majority of the crime is happening so that’s where the police are responding. The victims happen to be in those locations, happen to be minorities, as are the offenders. Is that a problem? Yes. Because it’s crime in those neighborhoods that we need to reduce.

So we need to look at what are the root causes of that crime? And a prosecutor can help in that regard working with other members in their community, um, to identify the issues and try to help out and try to use, as I’ve said before and I’ll say it again, all the tools in the toolbox as a prosecutor, a modern day prosecutor to do their job, diversion courts, getting people in mental health treatment, job training, all those things to, to divert these individuals before they commit violent crimes. If they commit small crimes, what can we do to stop that behavior, to put them on the path to being a productive member of society?

John Donvan:

And Paul, your response.

Paul Butler:

This is really scary. I don’t know if people saw minority report, but it sounds like John has some kind of concept of, of pre-crime or, or pre-violent crime where we got to get these guys before they do something really bad, so a- any excuse will do. You know-

John Milhiser:

That’s absolutely not what I said.

Paul Butler:

Uh, you keep talking about violent crime, although that’s not what the debate is about. You keep bringing it around to violent crime, because you have this idea that people who drink on their stoop are also going to be out wilding in the street. Again, that’s not what the data supports.

John Donvan:

Well, I, I wanna take one last question to you. He made the argument that these policies don’t support the police. That it’s not respecting the police and it puts the police in a bad position. As a prosecutor in DC, I know that you work closely with the police. So I’m curious for your take on, on where you think the police would be on this question.

Paul Butler:

Well, I’m actually going to agree with my friend John and something that he said earlier, which is that a lot of the calls that cops get, uh, they’re not equipped to deal with. About 90% of calls that go to 911 are about a crisis arising from homelessness or mental health or a beef between neighbors. And a lot of times having someone with a gun and the power to arrest makes things worse, not better.

Who did I learn this from? My friends who are police officers. So the 80% of criminal resources that go to misdemeanors might be more effectively spent on other solutions.

John Donvan:

All right. So we have come to the part of the program where we ask each of you to make a closing statement, closing remarks. Paul, since John went first for our opening statements, you have the floor now. One more time on the question should prosecutors pursue minor crimes? Your answer is no. Here’s your last chance to explain why.

Paul Butler:

So in my city of Washington DC, if I go to the National Institute of Health and ask, uh, how many people use drugs by race? I find that Black and brown people don’t use drugs more than anybody else, about 13% of drug users and sellers according to the National Institute of Health are Black. If I then jump on the Metro and go down to the Justice Department, Bureau of Justice Statistics and ask, “Who’s locked up for that crime?” 60% Black and Latinx. 60% of people who do the time, just about 40% of people who do the crime. That’s classic inequality, under the law it’s also classic inefficient government spending, which is why so many of our conservative friends are also on board with performing this present criminal legal system where so many people get locked up or punished for really minor conduct.

John Donvan:

Thank you, Paul. Now John, you get the final say here. Once again, your answer to the question, should prosecutors pursue minor crimes is yes.

John Milhiser:

It’s a basic civil right to live in a safe community and to achieve safe communities, we need responsible prosecutors. A prosecutor’s job is to pursue justice, which requires enforcing the laws in a fair and just manner. Good prosecutors understand that their responsibility is to follow the law, protect the rights of victims, respect the constitutional rights of all citizens and to engage with communities impacted by violence.

When you look at the so-called progressive prosecutors in Chicago or St Louis or Portland or a number of other cities in this country, they are not progressive in the traditional sense, uh, diversion courts, specialty courts, uh, therapy dog, which I brought in when I was state’s attorney, they’re not progressive in that sense, they’re politically driven extremists who come in with a political agenda and they’ve only served to degrade the quality of the criminal justice system in communities throughout the United States. Good prosecutors need to use all the tools in the toolbox and in that toolbox has to be the prosecution.

And when I say prosecution, that includes diversion and funneling to help these individuals of minor crimes. Being a modern day prosecutor is a difficult job, dealing with often limited resources, collaboration is needed and partnerships are vital to success. How do we measure success? Reduce crime, save communities, people trusting government, trusting the police, trusting prosecutors, and communities working together. The only way we can achieve the goal of safe communities is by working together. And then, we can allow businesses and people to prosper.

John Donvan:

Well, that concludes our debate. And to John and Paul for coming to the table on this, even though you disagree, uh, I, I wanna thank you for doing that, and I wanna thank you, in short, for being open to debate. To both of you, thank you so much for joining us.

John Milhiser:

Thank you very much.

Paul Butler:

John, thanks for being such a worthy partner.

John Donvan:

Thank you. And I want to thank our reporters also for their contributions, Deborah, Tom, and Kyle. And to all of you tuning in to this episode of Open to Debate, I wanna thank you as well, because you know as a non-profit, our work to combat extreme polarization through civil and respectful debate is generously funded by listeners like you, by the Rosecrance Foundation, and by supporters of Open to Debate.

Open to Debate is also made possible by a generous grant from the Laura and Gary Lauder Venture Philanthropy Fund. Robert Rosecrance is our chairman. Clea Conner is CEO. Lia Matthow is our chief content officer. Julia Melfi is our senior producer. Marlette Sandoval is our editorial producer. And Gabriella Mayer is our editorial and research manager. Gabrielle Iannucelli is our social media and digital platforms’ coordinator. Andrew Lipson is head of production. Max Fulton is our production coordinator. Damon Whittemore is our engineer. Raven Baker is events and operations manager. Rachel Kemp is our chief of staff. Our theme music is by Alex Clement. And I’m your host, John Donvan. We’ll see you next time.