This week I had an interesting conversation with a man who had lost in an effort to put a progressive DA in an adjacent county this past year. His comment to me after talking about the Yolo County race is that the county population in Yolo County – despite the close race last year – was not ready yet for the kinds of reforms that Dean Johansson would bring.
He felt that we would look back on the last twenty years as a dark era where we believed incarceration and punishment were the ways to bring about public safety and crime reduction – but world is changing.
Indeed, for decades the way to get elected as a district attorney was to sound as tough on crime as possible – promise more and harsher penalties. But even in 2018 in Yolo County, the proverbial worm had turned. Instead of a race to the bottom, we saw Jeff Reisig, whose career had been marked by being a tough on crime, victim’s rights prosecutor, trying to seize the mantle of progressive reformer -even as he was outflanked by scales-justice-blurredDean Johansson to his left.
Yolo County was not alone in 2018 – according to an article by the Associated Press published on December 31, 2018, at least eight new reform-minded prosecutors will take office this month. Unlike their predecessors, they won by promising “to be more compassionate toward drug addicts and more evenhanded in the treatment of minorities.”
Many won their “races against long odds and deeply entrenched tough-on-crime attitudes.”
The list includes some that we have discussed here, but many that we have not.
Chesterfield County, Virginia: “a Democratic defense attorney who promised to eliminate cash bonds for nonviolent offenders won a traditionally conservative district held by a Republican for 30 years.”
Massachusetts: “a lawyer who pledged to stop prosecuting a
list of more than a dozen nonviolent crimes became the first African-American
woman to win the district attorney’s office in Suffolk County, a district that
includes Boston.”
Dallas County, Texas: “former Judge John Creuzot won after promising to reduce incarceration rates by 15 percent to 20 percent and to treat drug crimes as a public health issue. “Justice is HEART work” was part of his campaign slogan.”
St. Louis, Missouri: “Wesley Bell, a city councilor in Ferguson, Missouri, won a seat as prosecuting attorney of St. Louis County after he promised to eliminate cash bail for nonviolent offenders and to increase the use of programs that allow defendants to avoid jail time by paying restitution, doing community service, or completing a treatment program.”
Robert McCulloch, himself a Democrat, held the seat for 28 years, but angered activists over his handling of the shooting of Michael Brown.
“For years, the average citizen didn’t pay attention to DA and prosecutor races — these weren’t the sexy races,” Mr. Bell said. “But there’s been an increased awareness because of the work of a lot of good people.”
“For decades, that kind of mantra by someone running for district attorney would have been seen as soft on crime and a turnoff for many voters,” the Associated Press reported. “But a shift began in some communities several years ago when candidates began tapping into public frustration over high incarceration rates, disparate treatment of minorities, and the decades-old war on drugs.”
“In some ways, there’s just been a gap in accountability between what elected prosecutors have been doing and what the electorate wants,” said Taylor Pendergrass, senior strategist for the American Civil Liberties Union’s Campaign for Smart Justice.
At the same time, there is resistance and pushback. Radley Balko reported that in Boston, where Rachael Rollins became the first black woman DA in City History is now meeting with resistance.
The group, National Police Association, “has filed an ethics complaint against Rollins — before she has even taken office.”
The complaint however is not based on “any actual ethical violations” but rather on her “campaign promise to not prosecute 15 low-level nonviolent offenses, ranging from public trespassing to drug possession.”
This is the same group that took out Aaron Zisser, who had been hired as police auditor in San Jose, “or, among other things, listening to protesters at an anti-police rally” and “called for a boycott of Nike for signing former NFL quarterback Colin Kaepernick as an endorser.”
Why is Rachael Rollins raising the ire of the police? She has “promised to stop prosecuting crimes such as shoplifting, resisting arrest, larceny under $250, drug possession and trespassing. She pledged to dismiss the cases or require offenders to do community service or complete education programs.”
“Accountability does not necessarily have to equal incarceration,” Ms. Rollins said. “There are many different tools we can use to hold people accountable.”
The leader of this movement might be Larry Krasner, who was ahead of the wave when he won a longshot bid for DA in Philadelphia.
During his first year, he did not disappoint. He cleaned house, letting about 30 assistant prosecutor go and “made it mandatory that he personally has to approve any plea deal that calls for more than 15 to 30 years in prison.”
The AP reports: “One of the challenges he’s faced and the newly elected DAs will likely face is an institutionalized belief that prosecutors should always seek the most serious charge and longest sentence possible.”
“I think resistance comes in many forms,” Mr. Krasner said. “There’s definitely a resistance that comes from the court system itself.”
But more important, he declared: “The era of trying to get away with the highest charge regardless of the facts is over.”
While most of the progressive DA’s in California lost their election, the California legislature and Governor made good on a slew of reforms.
We have seen massive changes to the juvenile justice system in California where legislation was controversially signed requiring children under 16 remain in the juvenile system without allowing exceptions for higher level offenses, we have seen the reduction of sentencing guidelines for individuals already convicted of some serious felonies, and a narrowing of the use of the felony murder rule.
“The legislature is for the first time rethinking the way we react to violent behavior,” Anne Irwin, the director of Smart Justice California, told The Appeal in October after Governor Jerry Brown signed those three bills. “That broad recognition that mass incarceration is not a good thing and is not keeping us safe is now extending to even crimes of violence.” Irwin called for policies that are geared toward rehabilitation and repair, “so that even those folks have a shot at redemption after they have paid their debts and committed themselves to changing.”
However, this is just the tip of the iceberg.
“A lot of the reforms that we see around the country are not going to do much to dismantle mass incarceration,” said Ashley Nellis, a senior research analyst at the Sentencing Project.
She pointed out, “They’re a great first step, but we have a serious incarceration problem on our hands, and Pennsylvania is a great example of that.”
Many have been willing to take on low level offenses, while staying tough on violent crimes. However, groups like the Sentencing Project has called for maximum sentences of 20 years.
Larry Krasner himself “has questioned the expectation that prosecutors should pursue life without parole sentences, and encouraged filing lower charges and seeking less severe pleas.”
Ms. Nellis pointed out, “If we’re serious about criminal justice reform, we have to go where reforms are most direly needed.”
“We can’t exclusively focus on nonviolent offenders,” Rachael Rollins, Boston’s incoming district attorney, wrote in a candidate questionnaire during her campaign. “We need to start having hard conversations about violent offenders and what we are doing to make sure that when they return to the community they have the tools necessary to re-enter successfully.”
People I have talked to believe that the criminal justice system in the next 20 years will look far different from the one we have today – as we acknowledge that the system really is not working as we would like it too.
—David M. Greenwald reporting
“She has “promised to stop prosecuting crimes such as shoplifting, resisting arrest, larceny under $250, drug possession and trespassing. She pledged to dismiss the cases or require offenders to do community service or complete education programs.”
Given the results of this approach in San Francisco with auto break-ins I am skeptical that she will be able to maintain this posture. We will see.