Until recently, conventional wisdom among prosecutors dictated that long prison terms were vital to public safety.  They took seriously the direction “to charge and pursue the most serious, readily provable offenses,” and measured success in terms of trial wins and convictions.  Conventional wisdom, however, is changing from this purely punitive model as prosecutors are now beginning to recognize the great price we pay — both the dollar and human cost — for mass incarceration in America.

At a panel discussion earlier this week, “Prosecutors and the Criminal Justice Reform Movement,” Lucy Lang, Executive Director of the Institute for Innovation in Prosecution (“IIP”) at John Jay College, and Sam Rivera, Associate Vice President of Housing at The Fortune Society, discussed the role of the prosecutor in bringing about systemic change.

Lang, a former Assistant District Attorney in Manhattan, emphasized the need for prosecutors to recognize the long history of racial inequality in our justice system, and to play a leadership role in overcoming it.  Following the end of the Civil War, for example, the prison population swelled as freed slaves were prosecuted under vagrancy laws for, in effect, being poor and unemployed.  The use of prison labor (a practice that continues today) thus created a new form of slavery and perpetuated racial injustice, as did Jim Crow laws, which enforced racial segregation.  In short, understanding the past informs the challenges we face today: African Americans are incarcerated at more than five times the rate of whites.

A guiding principle for Lang is the American Bar Association standard that “[t]he primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.”  Thus, she advocated for a public health model of prosecution, focusing on the underlying causes of crime, as opposed solely on punishment. An example of such a model can be found in Seattle, which placed juvenile justice under the purview of the public health department.  As Mayor Tim Burgess noted in announcing the policy: “It is misguided and counterproductive to respond to juvenile crimes solely with punitive incarceration.”

Lang suggested a number of specific actions that reform-minded prosecutors can take:

  • Developing community outreach programs and strategies;
  • Studying internal disparities in: case acceptance, dismissals, pretrial detention, plea bargaining, sentencing recommendations, and creating tailored policy interventions;
  • Opting not to prosecute whole categories of conduct;
  • Diverting low level, non-violent cases out of the system;
  • Looking to public health models to create new responses to drug crimes;
  • Developing protocols for evidence-based alternatives to incarceration;
  • Exploring opportunities for restorative justice;
  • Employing procedurally just and trauma-informed best practices in communicating with victims, witnesses, and people charged;
  • Implementing interventions to guard against implicit bias.

Lang also discussed important statutory reform recently enacted in New York State such as bail reform, favorable changes to criminal discovery and speedy trial rules, and increased use of desk appearance tickets (as opposed to arrest).  These and other measures not only will improve the system but will also help restore the public’s faith in the criminal justice system which is critically important.

Rivera discussed the challenges he faced when released from prison, and the essential role that the Fortune Society played in his successful transition, including his subsequent employment by the organization where he now holds a leadership position.  There is currently a great need among recently incarcerated individuals for education, employment and housing opportunities, as well as mental health services and help overcoming addiction.  With respect to prosecutors, the panelists had specific recommendations for appropriate action post-conviction:

  • Considering successful re-entry from prison as a priority;
  • Developing Conviction Review Units;
  • Developing Conviction Integrity Units;
  • Sealing or expunging old cases;
  • Advocating for clemency or sentence reductions;
  • Undertaking sentinel event reviews to improve the criminal justice system.

Individuals attempting to reenter society following prison often face legal challenges separate from their criminal cases that create additional barriers to their successful rehabilitation. As part of Proskauer’s pro bono program, we are seeking to address these hurdles by providing representation on a wide range of civil collateral issues, including housing, public assistance benefits, immigration, professional licensing, and family law.

Sam Rivera, Bill Silverman and Lucy Lang at the “Prosecutors and the Criminal Justice Reform Movement” panel discussion.
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Photo of William C. Silverman William C. Silverman

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer…

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer lawyers and ensuring widespread participation in these projects.

Bill has robust private and public sector experience and a strong criminal and civil background. He has worked extensively on government investigations and white collar criminal matters, as well as complex civil litigation in federal and state courts. He also served as an assistant U.S. attorney in the Southern District of New York, where he led criminal investigations, conducted trials and handled Second Circuit appeals.

Throughout his career, Bill has dedicated himself to the promotion of equal access to justice through pro bono service, particularly in the area of family court, anti-trafficking, and immigration.

Bill spearheaded a partnership among several law firms, corporations and the New York City Family Court to provide free legal advice to pro se litigants. The New York City Family Court Volunteer Attorney Program now has more than 400 volunteer attorneys from 40 major firms and corporations. Bill also helped build a coalition of organizations in a successful effort to secure additional Family Court judges in New York. He is now part of an effort spearheaded by Chief Judge Janet DiFiore to simplify the New York Court System from 11 trial courts to three.

Bill serves as counsel to the New York State Anti-Trafficking Coalition. In that capacity he has been a strong advocate for changes in the law and public policy to protect victims of human trafficking and bring perpetrators to justice. He also represents individual clients in this area, including a successful federal lawsuit brought on behalf of a trafficking victim against her traffickers. For his work, he was named by domestic violence nonprofit Sanctuary For Families as one of “New York’s New Abolitionists.”

Bill has spoken at numerous conferences and events, including New York Chief Judge Jonathan Lippman’s Hearings on Civil Legal Services and the American Bar Association’s Equal Justice Conference. In 2014, he attended a meeting at the White House with Vice President Joe Biden and other policymakers on the need for access to legal services in immigration proceedings.

Bill has been recognized for his public service with the Abely Pro Bono Leadership Award from Sanctuary For Families and Columbia Law School (2019); the Special Leadership Award for All-Around Excellence in Corporate Social Responsibility & the Law from City & State Reports (2015); the Commitment to Justice Award for Outstanding Partner from inMotion (2008); and the Matthew G. Leonard Award for Outstanding Pro Bono Achievement from MFY Legal Services (2007).

Outside of his work at the firm, Bill serves on various committees and non-profit boards. Bill is currently chairman of the Fund for Modern Courts, a non-partisan citizen organization devoted to improving New York State courts, and is formerly chairman of Legal Information For Families Today (LIFT), an organization devoted to unrepresented litigants in Family Court.