Philadelphia’s top prosecutor has made good on promises to reduce incarceration in the city. His re-election bid will be a litmus test for the progressive prosecutor movement he helped start.
By Joshua Vaughn
(Editor’s note: Larry Krasner faces a primary challenge in the Philadelphia Democratic Primary today).
Three years ago, when Larry Krasner took office as the Philadelphia district attorney, he was something of a pioneer. He had promised to combat mass incarceration and undo the damage done by his punitive predecessors.
And as his first term draws to a close, Krasner has delivered on several of his campaign promises: The number of people in jail in Philadelphia has fallen by nearly 30 percent. He has not sought the death penalty in a single case. He has prosecuted significantly fewer cases than his predecessors. He has reduced the use of cash bail and limited parole and probation terms. And he has reinvigorated his office’s conviction integrity unit.
“I think the short, concise version of it is promises made, promises kept,” Krasner told The Appeal in a wide-ranging interview. “That doesn’t mean everything got fixed but promises made, promises kept.”
Now Krasner finds himself in a high-stakes race for re-election. He is facing at least one other opponent, former homicide prosecutor Carlos Vega, in May for the Democratic nomination and will likely have a Republican challenger, criminal defense attorney Chuck Peruto, in the general election in November.
Critics on the right say Krasner’s policies threaten public safety and have caused a surge in violence in the city. Critics on the left argue that he has not gone far enough: His office still seeks cash bail and asks that people convicted of certain crimes be sentenced to life without the possibility of parole, or death by incarceration. Krasner’s office has at least once used the threat of the death penalty to resolve a case.
“We took a lot of heat,” Krasner said of his first term. “Oh boy, was there heat. But that is to be expected when you are in year 11 of a 30-year arc of being part of a movement for social justice. You take a lot of heat because you’re getting things done.”
Krasner was one of the first progressive prosecutors to capture the national spotlight, and his re-election bid will be a test for a movement that has grown and accelerated rapidly in the years since.
“As movement folks, we’re going to continue to build power together to arrive at solutions to problems that plague us,” Nicolas O’Rourke, Pennsylvania organizing director for Working Families Party, which is endorsing Krasner for re-election, told The Appeal. “When you have someone in the DA’s office, you want to make sure there is always someone who’s willing to share what’s going on, who’s going to provide transparency and accountability, and I think he’s done that.”
Krasner has drastically changed how the Philadelphia district attorney’s office had been pursuing and handling cases.
For nearly 20 years beginning in the early 1990s, Lynne Abraham led the office and became known as one of the “deadliest” district attorneys in the country because of how frequently she sought the death penalty. Her office also oversaw numerous wrongful convictions of Black and Latinx people for murders they didn’t commit. Krasner’s immediate predecessor Seth Williams sued newly elected Governor Tom Wolf in 2015 when the governor instituted a moratorium on executions. Williams said Wolf’s action was “flagrantly unconstitutional,” but the Pennsylvania Supreme Court upheld the moratorium later that year. Williams was released from federal prison about a year ago after pleading guilty to bribery charges in 2017.
“For far too long, the Philadelphia District Attorney’s Office has been driven by a win-at-any-cost culture that prioritizes high conviction rates and harsh sentencing over more effective approaches that are proven to reduce crime,” Krasner’s first campaign website says. His platform included reducing over-prosecution by declining to take on “insignificant” cases and cases where the evidence provided by police wasn’t sufficient or legally obtained.
In 2018, Krasner’s first year in office, the number of cases brought by the district attorney’s office fell by about 6,000 cases, or roughly 16 percent compared to the previous year. Charges remained largely flat in 2019, and they fell by more than 8,000 cases in 2020 as police made significantly fewer arrests during the COVID-19 pandemic.
Among the first actions Krasner took was directing his assistant district attorneys in February 2018 to no longer prosecute possession of marijuana. The office prosecuted only one minor possession case the rest of that year. For comparison, the district attorney’s office prosecuted more than 400 people during the same time period a year earlier, The Appeal found.
Krasner has not sought the death penalty in a single case—another promise he made while campaigning. He also supported an ultimately unsuccessful lawsuit seeking to overturn the death penalty in Pennsylvania. In a brief to the Pennsylvania Supreme Court, Krasner’s office wrote that the death penalty disproportionately harms people of color and indigent people. According to Department of Corrections data, Philadelphians make up nearly a quarter of people on death row in the state. Of that number, 84 percent are Black and more than 90 percent are part of a racial minority group.
More than 70 percent of all death sentences imposed since 1978 were overturned on appeal, according to Krasner’s brief, and a majority of those cases were overturned because of ineffective counsel—often underfunded court-appointed lawyers or public defenders.
“It’s professional malpractice,” Krasner told The Appeal. “It’s professional malpractice planned by a system that was utterly unwilling to pay what it actually cost to do that litigation properly.”
Krasner said he supports giving people serving life sentences a chance at parole, and his office has supported commutations for people serving life. He has, however, prosecuted dozens of cases that have resulted in life without the possibility of parole sentences: In Pennsylvania, a conviction for first- or second-degree murder carries a mandatory minimum of life in prison without the possibility of parole.
Krasner has also worked to limit parole and probation terms. In March 2019, he instituted a policy where his office now only seeks a maximum of 12 months of probation or parole for a person convicted of a misdemeanor and a maximum of three years for a person convicted of a felony.
Since taking office in 2018, Krasner has collectively reduced future incarceration of people convicted of crimes in Philadelphia by more than 20,000 years, compared to what was imposed during the four years preceding his tenure. Future probation and parole sentences have been reduced by more than 81,000 years, according to data published by his office.
Krasner has also attempted to correct past harms by investigating and overturning wrongful convictions secured by his predecessors. In 2018, he hired Patricia Cummings to lead the office’s conviction integrity unit, which was started under Williams in 2014. Under Williams’s tenure, only three people were exonerated by the unit. Since taking over, Cummings, who had run a similar unit in Dallas, has helped exonerate 18 people, who served more than 350 years combined in prison for crimes they did not commit. Of those who have been exonerated, 11 were Black or Latinx people convicted during Abraham’s tenure and served more than 240 years combined in prison. One man, Terrance Lewis, was arrested and convicted of murder in 1999, and exonerated and released in 2019.
The district attorney, however, has faced criticism from the left and right for his office’s bail practices.
Krasner promised to stop asking for cash bail for people charged with nonviolent offenses, and once in office, he stopped seeking cash bail in cases where the person was charged with any of a list of 25 offenses including forgery, drug possession, prostitution, and retail theft. “I actually had people tell me [the bail policy] was the end of civilization,” he said. “We had to listen to that nonsense for a year.” A 2019 study of the bail policy found it increased the likelihood a person would be released without having to pay bail or undergo pretrial supervision by 22 percent, without resulting in an increase in people failing to appear for trial or committing new crimes while out on bail.
But in March, at the beginning of the COVID-19 pandemic, his office instituted a binary policy to either request judges hold people pretrial if they are charged with certain violent crimes, or release people without cash bail. The office asked to hold any person it felt was a public safety threat, including people charged in a shooting, people charged with rape, and people with felony convictions charged with illegal possession of firearm. And it asked for extremely high bail amounts in those instances—$999,999. (One dollar more would have triggered certain holding conditions, Krasner’s spokesperson Jane Roh said, including requiring the person be held in isolation.)
Pennsylvania law allows for judges to deny bail in all cases where the person is a risk to public safety and no bail conditions will “reasonably assure” that safety. But state law also requires that cash bail only be set at a level to “reasonably ensure the defendant’s appearance and compliance with the conditions of the bail bond” and not just be used to hold someone pretrial.
Krasner explained to The Appeal that the policy, a response in part to the pandemic, is meant to ultimately keep fewer people in jail and to echo the model in Washington, D.C., where the use of cash bail has been essentially eliminated.
But the result has inflamed tensions on all sides. Bail magistrates, judges who ultimately set bail and have been sued in recent years for setting it at unreasonable levels, only complied with Krasner’s nearly $1 million requests in 2 percent of cases, setting lower bail amounts in 90 percent of them, according to Roh. Krasner criticized magistrates for setting bail in an amount that the person charged is able to pay, amid criticism from his opponents on the right that some people who were released went on to commit new crimes.
In September, William McSwain, the U.S. attorney for the Eastern District of Pennsylvania at the time, held a press conference in which he attacked Krasner and blamed his policies for causing a “culture of lawlessness” resulting in violence.
Krasner has also become so much of a target of the city’s Fraternal Order of Police, that the union has begun a campaign to get Republicans to change party registration so they can vote against Krasner in the May primary.
Advocates on the left are upset over the office’s continued use of bail and accuse Krasner of abandoning his commitments. Krasner has even found himself at odds with the city’s bail funds following a report that alleged he was continuing to seek excessive bail even in some cases where the person was charged with minor offenses like drug possession.
Roh did not respond directly to the allegation but said the report lacked context. For example, the report says a higher percentage of cases were referred to the district attorney’s office for violent offenses but that is because the total number of arrests fell as a result of the pandemic, she said.
“We knew that this would be controversial, we didn’t know from whom,” Krasner said. “Sometimes the activist voice is a prophetic voice. It’s an absolutist voice. It’s a very, very ideological voice. It’s also an easy voice that doesn’t deal with the real flaws in the system or the reality that a decision has to be made right now about a human being and that person’s life right now.”
Hannah Sassaman, policy director for the Movement Alliance Project, told The Appeal: “The vision of this system that not just we but millions across this country are looking for is one where there is the right to be innocent until proven guilty and, unless there are no other circumstances that will keep that person or identifiable people in the community safe, for that innocent until proven guilty person to [be able to] fight their trial from home. That is the vision we were fighting for.”
Since Krasner has taken office, several other prosecutors who support decarceration have been elected. Chesa Boudin took office in 2020 in San Francisco and quickly took steps to eliminate cash bail in the city, reduce pretextual stops, and end the use of California’s three-strikes law. Late last year, George Gascón, Boudin’s predecessor, was elected and became district attorney of Los Angeles County—America’s largest county. Gascón ran on a platform to deliver many of the same reforms that both Krasner and Boudin promised.
“It’s really exciting to look around three years into the administration and realize 10 percent of all people in the United States reside in a jurisdiction with a progressive prosecutor and they elected that progressive prosecutor,” Krasner said. “A decade ago, that number would have been 0 percent.”
But now, after the police killing of George Floyd in Minneapolis, a summer of protests, and the rise of the defund the police and abolitionist movements, the man once dubbed the “most radical district attorney in the country” finds himself to the right of some of the most vocal activists as he begins his run for a second term in office.
“This is really where the tire meets the road. I am not an abolitionist,” Krasner said. “I do not think there should be no jails whatsoever. I do not believe there should be no cops whatsoever.”
For Saleem Holbrook, executive director of the Abolitionist Law Center, abolition is the long-term goal. However, in the short-term, Holbrook said progressive prosecutors like Krasner are a form of harm reduction.
“I have to look at the big picture here,” Holbrook said. “It’s a culture change. Is it a culture that I want? No, I’m an abolitionist. Krasner is still going to prosecute, and I don’t agree with a lot of his prosecution. But, when I look at this office from a harm reduction [perspective], I see how it has changed.”
Holbrook was charged with murder in 1990 when he was 16 years old because he participated in a robbery where a woman was killed. The Philadelphia district attorney’s office at the time sought the death penalty against Holbrook, but he ultimately pleaded guilty and was sentenced to life without parole. He was released after nearly 30 years in prison. The U.S. Supreme Court has ruled that mandatory life sentences are unconstitutional for people who were children at the time of their crime.
“As someone who that office tried to kill when he was 16 years old, it’s a 180,” Holbrook said of Krasner’s tenure, “and I can’t act like I don’t see that.”
Although Krasner said his office has made major strides in just three years, he acknowledged that the work was far from over.
“In every area, we have achieved,” Krasner said, “but that doesn’t mean we’re done.”
Article originally appeared in the Appeal.
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