The Power of Prosecutors

The following transcript has been edited for clarity and brevity.

KAREN FRIEDMAN: Hi, I'm your host Karen Friedman. I'm the Director of Criminal Justice Innovation, Development and Engagement at OJP's Bureau of Justice Assistance, otherwise known as BJA. Welcome to today's episode of Justice Today.

Joe Platania, who serves as chief prosecutor in the college town of Charlottesville, Virginia, has some advice for people who go into his line of work: If you don't wake up every day terrified by the power that you possess as a prosecutor, you should do something else.

For the past 20 years—first as a staff lawyer, and since 2017 as Charlottesville's popularly elected Commonwealth's attorney—Platania has been dispensing justice in the hometown of the University of Virginia. And every day, Joe walks a tightrope.

First and foremost, Joe's job is to protect the public. He and his staff of five lawyers work to convict people who have committed crimes, and when the crimes are serious, put people in jail. Even in a liberal college town like Charlottesville, no elected prosecutor will last long if he's seen as being soft on crime.

But on the other hand, Platania must also decide when justice should be tempered with mercy. For example, what if someone commits a crime because they have a substance use or behavioral health problem? Is incarceration the right punishment? Why or why not? And how do you know?

These individual decisions, which Joe and his staff make routinely, are usually described with the dry phrase “prosecutorial discretion.” But every decision can profoundly change the course of a life, or many lives. And that power is what keeps Platania awake at night.

Joe is here today to discuss what prosecutorial discretion means when you're the prosecutor who exercises that discretion. He'll talk about the training and experience that guide his decision-making process, and how those judgment calls affect the community he serves. Joe, we are so glad you are with us today on Justice Today. How are you?

JOE PLATANIA: I'm great. It's good to be here. Thanks for having me.

KAREN FRIEDMAN: Joe, I'd like to start with something that might surprise people. Before you became a prosecutor, you were a public defender who handled death penalty cases. A lot of people probably think public defenders and prosecutors are complete polar opposites. What made you decide to switch roles?

JOE PLATANIA: Well, I loved my time as a public defender. I really enjoyed the work. I found it very meaningful, and really cared a great deal for my clients. Many of them were not bad people. They had made a bad decision. And I really enjoyed that work as a line public defender.

But after doing it for almost five years, I saw that within the system, the prosecutors really had all of the power. So, I went into prosecuting not to advocate for victims or to help keep the community safe. I went into it thinking, geez, I can help my clients a lot more as a prosecutor than I'm helping them as a public defender.

That's really what brought me into the work of being a prosecutor. Over time, I appreciated and learned the importance of advocating for victims and keeping the community safe. That's probably not a very traditional path to becoming a prosecutor. But that's mine.

KAREN FRIEDMAN: I know that even compared to judges and juries, like you said, you feel that prosecutors have enormous power. They really are the ones that shape the outcome of criminal cases. Can you explain that a little bit, how that works, and why you think that the prosecutors have so much power?

JOE PLATANIA: There is a tremendous amount of power vested in the prosecutor. And that comes from charging decisions and plea agreements—how cases are charged and resolved. As you alluded to in your opening remarks, it's just a tremendous amount of power to be vested in one, and only one, player in the system.

One of the things I try and talk about in our office is how you approach decisions. In our office, we try and approach each case as a problem to be solved. And here's what I mean by that. If you have a case where you're working with a woman who's the victim of intimate partner violence, or if you have a case where someone is charged with the distribution of narcotics in a neighborhood near a school where children live and play, those prosecutions look one way. Your goals might involve more of a focus on incarceration and punishment and removing someone from society.

But we also have a great number of cases that might involve someone that's shoplifting and stealing because they're homeless and are struggling with a substance use disorder and need food to eat. Or an assault on a police officer felony charge, and the reason for the assault was behavioral health issues. They were off their medications and were in a manic state and not acting rationally and lashed out and punched or pushed a police officer. So, those prosecutions look much different.

We're trying to figure out, how do we keep the community safe, but also treat this person fairly and get them the treatment and support systems that they need so that they're not going to continue to interact with the criminal justice system.

KAREN FRIEDMAN: I really appreciate that. In my years on the bench, that's how I tried to approach my cases. In each case, I thought about, “What are we trying to accomplish here? And how do we do that?”

If we're trying to protect the public from this person, then perhaps jail is the way to go. If we're trying to get this person help and make sure that they get either the substance use help or mental health help that they need so they don't commit another crime, then we go a different route.

Now, we're doing this podcast during Recovery Month. I'm curious to know how often your office deals with defendants who have substance use issues. How many of your criminal cases do you believe are directly related to substance use?

JOE PLATANIA: Well, I'd like to hear what your experience was on the bench. But anecdotally, I would say the majority. Maybe as many as three quarters of our cases involve some issues surrounding substance use disorder or behavioral health issues.

These again are mostly folks that are good people. They've just made some bad decisions and have life circumstances that have pulled them into the criminal justice system. So, I would say a great majority of the cases we deal with have as a component a substance use disorder, an addiction issue, or some sort of mental health issue.

I'm curious. What was your experience on the bench?

KAREN FRIEDMAN: I would say the majority of the people that I saw every day were dealing with either a substance use problem, or a mental health problem, or some combination, some co-occurring disorder. I think there is a very small population that is a public safety risk in general.

I would say at least 95 percent of the people who are sitting in some prison today at some point will be released back into the community. There's a very, very small percentage of people who are never coming back out.

So, we need to deal with those underlying issues that those people are dealing with. Because otherwise we're just letting those problems right back out into the community. Because otherwise the reentry process is not going to be a successful process.

JOE PLATANIA: Yeah, I'll throw an amen your way. The other thing that I think your listeners should appreciate—and I've learned this over time: It is not as if there's an intervention or an arrest or a charge or a prosecution, and people just absolutely with ease become sober and stop using.

It is a lifelong struggle for many of these folks. And what I have learned as a prosecutor is you have to keep extending your hand. You have to have a willingness to continue to offer chances. You have to continue to try and offer treatment and diversion, because you never know when someone is going to be ready.

Believe me, when someone's not ready, there's not anything that anyone can do to make them stop using. No prosecutor, no judge, no defense attorney, no clinician. It's not going to work. You have to understand going into the work involving substance use disorder that sometimes it takes a while. Years and decades, for some folks.

KAREN FRIEDMAN: You have to keep offering that grace, right? I was a drug treatment court judge. So, I learned all of what you're speaking about. And that really takes me to my next question, because as a prosecutor, you really have a lot of different options for dealing with people who are suffering from addiction. You can incarcerate them, or you can refer them to a treatment court that requires them to participate in a recovery program, like the type of court that I sat on. How do you make that call?

JOE PLATANIA: Well, the first thing we do when we're analyzing cases is, we ask: Is this individual, if they're released and put in a treatment court, going to pose any risk whatsoever to the community and their fellow citizens that are out there walking on the street? Because people have a well-deserved expectation to be kept safe by their prosecutor's office and their court system. So, the first hurdle that we have to get over before considering treatment court is: If they're out, are they going to pose a risk to the community, or anyone specifically?

Beyond that, another question that's a little more nuanced is: Are you introducing someone into a treatment court population where they may put other co-participants at risk? If you have someone that's selling to support a drug habit—which is routine, as you know, from your time as a judge in a drug court—and you introduce them into the population of other participants in the drug treatment court, that's a ready-made clientele for someone that sells drugs. So, you want to be really careful that you're not going to introduce someone into a program that's going to negatively impact other participants in that program.

Beyond those two concerns, I think everyone should be in treatment courts. I mean, if they're ready and willing to get the help, and they want to turn their life around, and want to make choices that don't involve us seeing them again, I say go for it.

We've got a therapeutic docket in Charlottesville for misdemeanors, which includes folks with mental health and behavioral health issues. We've got the second oldest drug treatment court in the Commonwealth of Virginia. It's been around for 25 years. And I think diversionary courts are really helpful and useful.

It's also very interesting the role the judge plays in those diversionary treatment courts. The judge has a very different relationship with the defendant. The evidence shows that the judge interacting and praising folks helps speed their recovery along more than fussing at them or yelling at them. I think the data says something like there should be three positives for every negative. So, I think these courts are great options for people that are ready.

KAREN FRIEDMAN: Yeah, 100 percent. It's that relationship between the judge and the participant that is really important. Actually, all the players on the team—the prosecutor, the defense attorneys, the case managers, the probation agents—they all play a key role in making treatment court work. I am a strong proponent of treatment courts as well as other types of diversionary programs.

But I know that not everybody's a believer, right? Prosecutors often have real political pressure to be tough, and to lock up criminals and throw away the key, as the old saying goes. But in practice, that's not the way it works. There are very few people that you actually throw the book at. So, how do you explain that decision-making process to the public?

JOE PLATANIA: One of the things I heard in your intro is a common perception—but I would characterize it as a bit of a misperception—about prosecutors: We really shouldn't be working to convict people. I think that statement was used in relation to protecting the public, which is a very valid and important goal. But it's really not the job of a prosecutor to convict people.

I read a business book once, and there was a quote in it that said, “Culture eats strategy for breakfast.” What that means to me is, we don't have big, long policy manuals that tell the lawyers here what to do. We try and create a culture. Our north star for that culture that I tell everyone until they're sick of hearing it, is: Our job is to balance community safety with the fair treatment of someone charged with a crime.

If that is the culture that you have—community safety balanced with the fair treatment of someone charged with a crime—as a prosecutor, you're going to get it right most of the time. The rules of professional conduct for lawyers in Virginia have a rule that deals specifically with the unique responsibilities of a prosecutor. It’s rule 3.8. And rule 3.8. includes a comment, which is: Prosecutors are charged with being ministers of justice, not advocates. I have not yet in my 25 years of practice been able to define what a minister of justice is.

It's tough for me to put that into words. It’s probably more aspirational than anything. It probably means that we prosecute real people, and they've got moms and dads and husbands and wives and kids and co-workers. We really can't lose sight of that as prosecutors. I think that's how we try and approach the process and try and explain it to the public.

KAREN FRIEDMAN: Love that. I know that you teach a class at University of Virginia law school for students who are interested in becoming prosecutors. Is there a textbook on how to apply prosecutorial discretion? What are you teaching them about making these decisions?

JOE PLATANIA: You alluded to it in your opening remarks. I try and tell them if you're not terrified by the power that you possess as a prosecutor, that should concern you. The students are all third-year law students, and they have practice certificates. So, they're actually in courtrooms throughout central Virginia, prosecuting cases under the supervision of an attorney.

If there is a book on prosecutorial discretion, no one's told me about it.

KAREN FRIEDMAN: You may need to write it, Joe.

JOE PLATANIA: Yeah, work in progress. But I think the best way to think about teaching it is: Approach it with humility. You never fully master prosecutorial discretion. I make several mistakes every single day. The way to think about it, it's more of an art than a science. You can’t run someone's charging history through some spreadsheet, and it spits out an answer.

Every decision in every case should be treated on an individual basis. You should have input from the harmed party or the victim about what they'd like to see happen. They should have agency and a voice. You should consider the person that's committed a crime, their life circumstances. What do they need? What can keep them from reoffending?

It's really a great experience to watch the students start in August and have no idea what they're doing, and then when we finish the year in May—we have them for a whole year—they end up saying, “We've never learned anything this impactful in our three years here.” That's a credit to the offices that they're placed in, and the supervising attorneys that work with them, and the officers that teach them, and the defense attorneys and the judges that take time to educate them.

It's an amazing life lesson when as a law student you have the ability to impact many peoples’ lives. We tell them to go in, and make mistakes, and do the best you can, and be humble, and listen to other people. They usually come out at the end of the year having learned quite a bit. It shapes their own worldview and their own opinion on what prosecutorial discretion does and should look like.

KAREN FRIEDMAN: In the past few years, you've prosecuted several cases that have gained national attention, including the killing of a 32-year-old woman by a neo-Nazi at a white supremacist rally. What have you learned about handling volatile, high-profile cases like that one?

JOE PLATANIA: Well, as many people recall, on August 12, 2017, there was a Unite the Right rally in Charlottesville, Virginia. And James Alex Fields Jr. drove his car into a crowd of people, injuring many and killing one, Heather Hyer. A great degree of national attention was placed on that day and those events.

I took office January 1, 2018. I had made it through a Democratic primary election in June, and then August 12th happened. I was unopposed in the general election in November because Charlottesville, Virginia is 85 to 90 percent Democratic. So, I walked into office having to handle a case where there was national media attention. And I had absolutely no idea what I was doing.

I knew enough to know that I didn't know anything, and I just started picking up the phone and calling colleagues from Virginia. I actually called prosecutors from around the country that had handled national cases with national attention. And folks couldn't have been more kind and gracious in giving me advice, and telling me what I needed to know.

So, it was pretty much on-the-job training and on-the-job learning. And, you know, many stumbles, many things I did incorrectly. But there was a great support system of folks that I called, fellow prosecutors that were amazingly helpful. There was a federal charge against Mr. Fields and some attorneys came down here for the trial from the Civil Rights Division of the U.S. Department of Justice, and they were also wonderful. I called one of them and debriefed every day after trial. He was another great advisor.

So, really, just surrounded myself with people that were a lot smarter and a lot more experienced than me, and they were gracious with their time and advice. I should add one other thing: I had an absolute rock star of a co-counsel. She was unbelievably amazing, and so that really helped. I had a great trial partner.

KAREN FRIEDMAN: I know that you've said in the past that as a young prosecutor, you tended to approach your job as a battle between the good guys and the bad guys. But now, older and wiser, you see more shades of gray. How did that change come about? And how has it affected the way that you do your job?

JOE PLATANIA: Well, I know this is a podcast and we're not on camera, but you can see my beard's got a lot of gray in it that didn’t used to be there.

KAREN FRIEDMAN: I was gonna say that, but I decided to spare you.

JOE PLATANIA: That’s quite all right. You know, I knew everything and was perfect at 18, and it's been downhill ever since. I think that I’ve had just a general maturation process of living more life and going through some experiences that humble you and help you see the shades of gray. Nothing is as absolute as it seemed to me when I was a young public defender or a young prosecutor. Just living some life, having some different experiences, getting exposed to some different things, really lends itself to being able to appreciate the complexities.

The people that we deal with in the criminal justice system, their lives have so much pain and tragedy and trauma. And then there's so much hope and joy and happiness. It's just this big mash of human emotions. And, boy, what a privilege to have a front row seat, to be working in this field. I just absolutely love it. It's a lot of fun. You get to do a lot of good. And I think that's something that you might not have as one of your personality traits when you're sort of a young litigator that wants to just go in and argue over every last thing.

KAREN FRIEDMAN: People always ask me, over the course of my career, what is the one takeaway that you’ve learned. And they expect me to come up with some new innovative, major idea. But it's very, very simple. It's, but for the grace of God go I.

JOE PLATANIA: There you go.

KAREN FRIEDMAN: Had I been born in a different zip code or a different state, maybe had a different shade of skin or different parents, my life would look so different. The people that I'd see before me in court every day had struggles and challenges that I'd never had to deal with or experience. And the whole thing is very humbling.

JOE PLATANIA: I wanted to go back for a minute to treatment courts. You talked about the treatment teams, where everyone is on a team. It's the judge and the prosecutor and the clinician and the defense attorney, all with one unified purpose, to support the participant in the treatment court. That's really unique.

And I love what you just said about, “There but for the grace of God there go I.” A lot of these folks have never in their life experienced a group of people rooting for them and caring for them. I know that this is gonna air during Recovery Month. That team approach, and really getting behind someone and rooting for them and wanting them to succeed, that's sometimes the first time they've ever experienced that. And it's really powerful to watch.

KAREN FRIEDMAN: I remember the first time I went into a jail for a recovery ceremony for a program that they had done. And they had the graduation, they'd given out certificates, and this woman was in tears. She was standing next to me, and she looked at me, and she said, “Judge, this is the first certificate of completion I've ever gotten in my life.”

She was probably in her mid- to upper-40’s. For most of us, how many certificates have we gotten from little league or ballet class? High school graduation or college graduation? And here she was completing a substance use program, in her 40’s, and this was the first certificate of completion she ever received in her life. It's amazing.

JOE PLATANIA: I bet if we called her right now, she'd say, “Yup, it's framed right here on my dresser.” I'm sure she still has it.

KAREN FRIEDMAN: I have no doubt. It's that significant. Joe, this has been a fascinating conversation. We appreciate you walking us through the real-world questions that prosecutors deal with every day.

Thank you for all your thoughtful answers. For thinking about these issues and trying to be creative and innovative and solving problems.

JOE PLATANIA: Thank you, Judge. I very much enjoyed the conversation.

KAREN FRIEDMAN: Thank you to all our listeners for being with us today on Justice Today.