Part I
This Independence Day felt different. The National Guard continues to occupy the nation’s capital, communities continue to beg for sensible gun safety regulations after needless deaths, and just days after the country celebrated its semiquincentennial, ICE murdered a man in the streets in Houston, Texas.
Following the July 4th holiday, we took some time to reflect on where we’ve been and where we are. We think it’s important not just to look back at the ideals that founded this nation, but also to look ahead and ask what kind of democracy we hope to build in the centuries to come.
In this issue, and in part two that will follow, we ask a few questions that we think should guide our thinking about the future of our justice system. We highlight the current state of the issues that will most impact its future and what investments we need to make now to ensure that the next 250 years are not a return to regressive, failed tactics of the past.
Our country is at a crossroads, and we have the power to decide whether we will lean into or move away from mass incarceration. Those outcomes will be shaped by the choices we make today about safety, justice, and who gets to exercise power in our communities.
How will technology shape justice?
Artificial Intelligence is no longer a futuristic concept–it’s already reshaping the criminal legal system. Police departments are using AI to draft reports, analyze evidence, identify suspects, and predict where crimes may occur, while some jurisdictions are experimenting with AI in pretrial decision-making and other stages of the criminal legal process.
These tools may improve efficiency, but their rapid adoption has also raised serious concerns about transparency, bias, and due process. The question isn’t whether technology belongs in our justice system. As we’ve previously noted, it’s about whether our legal system can ensure that constitutional rights keep pace with technological innovation.
Without meaningful safeguards, we risk an unprecedented expansion of government surveillance and obscuring decision-making. AI-powered facial recognition, automated license plate readers, predictive policing software, and massive data aggregation tools are giving governments new and particularly insidious ways to monitor people’s movements, associations, and behaviors. These tools are deployed with little public oversight or meaningful transparency, making it difficult for courts, defense attorneys, and the public to understand how decisions are made or to challenge them when they are wrong.
Facial recognition technology illustrates this tension. While it promises to make investigations more efficient, studies have consistently found that many systems are far less accurate when identifying women and people of color, increasing the risk of wrongful arrests, tainted investigations, and inaccurate police reports. The lesson isn’t that every AI tool should be rejected, but that efficiency cannot come at the expense of reliability, fairness, or due process.
As AI becomes more deeply embedded across various stages of the criminal legal system, policymakers must anticipate and answer fundamental questions: When should AI be used at all? Should an accused have the right to know when AI was used to generate evidence or inform a charging decision? How can someone challenge an AI-generated recommendation? And who is ultimately accountable when an automated system gets it wrong–a software developer, a police officer, a prosecutor, or a judge?
These are questions about democratic governance, not just technology. Thankfully, these questions are being addressed. Across the country, researchers, advocates, judges, and lawmakers are calling for stronger guardrails–including independent audits, disclosure requirements when AI tools are used in criminal proceedings, and rigorous testing before new technologies are deployed.
Who gets to decide what public safety looks like?
In the last several years, we have seen a rapidly intensifying power struggle over how to keep communities safe, and who has the authority to decide how to achieve that safety. That struggle has made local reforms particularly vulnerable to state and federal preemption, especially for blue cities within red states. Ultimately, this trend harms communities by leading to longer sentences and higher jail and prison populations, perpetuating longstanding racial disparities, and ultimately limiting home rule. These harms are especially clear in recent attacks on local prosecutors and federal interference in reform-oriented jurisdictions.
Attack on Progressive Prosecutors
Over the course of the last decade, and across the country, a growing number of locally elected prosecutors have publicly acknowledged that old tough-on-crime policies and mass incarceration did nothing to make their jurisdictions safer. Instead, these prosecutors vowed to use their authority and discretion to implement policy changes that reflect their vision of true public safety. For their efforts, they were swiftly met with legislation that attempted to limit their discretion and obstruct reform. State governments sought to limit prosecutorial power by:
Limiting prosecutorial discretion by allowing attorneys general or special prosecutors to prosecute offenses, even when the local prosecutor believed that prosecution was inappropriate.
In Tennessee, for example, the state passed legislation during a rushed special session authorizing the Attorney General the ability to petition for the appointment of a special prosecutor in cases where the local district attorney “peremptorily and categorically” declines to prosecute. This law was passed after the Davidson County prosecutor announced that he would not prosecute minor marijuana possession offenses or violations of the state’s anti-trans bathroom law.
In Pennsylvania, the state legislature passed a bill allowing the state Attorney General to prosecute firearm cases in Philadelphia if the District Attorney chooses not to do so. Not coincidentally, this legislation was introduced during District Attorney Larry Krasner’s term. Krasner, who ran on a reform platform, was targeted directly and exclusively in his jurisdiction.
Removing elected prosecutors for exercising their discretion.
In Florida, Governor Ron DeSantis removed State Attorney Andrew Warren, claiming that he’d neglected his duty by stating he would not prosecute abortion and gender affirming care cases. Governor DeSantis also removed State Attorney Monique Worrell, accusing her of being too lenient with youth accused of crimes and implementing policies on mandatory minimums for gun and drug trafficking offenses. The allegations quickly proved to be unfounded, and Monique Worrell was later re-elected to the same position by her constituents.
Federal Interference with local government reforms
When there are ideological conflicts between local governments and federal policy, we’ve seen in recent years that the federal government increasingly turns to aggressive, coercive tactics to force local governments to bend to its will. These tactics have included lawsuits, funding cuts, and, at its worst, invasion of cities.
Targeting Sanctuary Cities - The Trump administration has made it its policy to attack jurisdictions that refuse to cooperate in its mass deportation plans. The administration has tried every trick in the book to threaten local and state governments, including withholding federal funding, filing lawsuits, and investigating departments and leaders.
Limiting or abandoning consent decrees and civil rights cases - Last year, the Department of Justice Civil Rights Division announced it would not file any new complaints or amicus briefs in civil rights cases and indicated it would reconsider consent decrees aimed at police reform finalized by the Biden administration.
Federal law enforcement deployment - In 2021, the Justice Department began a program titled Operation Legend that purported to target violence in nine cities, including Chicago, Detroit, Memphis, and Milwaukee. None of the cities invaded by federal law enforcement requested assistance or a federal law enforcement presence. History repeated itself during Trump’s second term in cities like Minneapolis, Charlotte, and Los Angeles when the administration again sent immigration enforcement agents to terrorize cities that did not request help.
The good news, though, is that we already have a model for how to fight back in the years to come. Several recent examples serve as guides.
Cities and states have filed numerous lawsuits against the federal government to protect policies they deem best for their communities.
Local governments have held fast to their commitment not to aid the federal government in immigration enforcement.
Local elected officials are banding together to support one another in their ongoing fights to protect their communities.
Ensuring that we have a say in how decisions about safety are made in our own communities will require more efforts like these that support community and evidence-based solutions.
Be on the lookout for our next installment, where we will continue our reflections by exploring which programs and policies actually keep us safe and what investments we can make to combat the country’s rising jail and prison populations.