By Rory Fleming
Back in 2017, I wrote a newsletter for The Appeal discussing debates over what makes a prosecutor a “reformer” or a “progressive.”
In retrospect, it was a bit naive.
I put Cy Vance, then the Manhattan District Attorney, in the phony category, along with former Los Angeles DA Jackie Lacey and former New Orleans DA Leon Cannizzaro.
The since-indicted Baltimore prosecutor Marilyn Mosby was placed in the reformer category, despite undermining her own accomplishments with prosecutorial misconduct and much-maligned attempts to prosecute Keith Davis, Jr. over four times for murder.
So was Denver District Attorney Beth McCann. Elected in 2016, she opened up her tenure by stating she would never seek the death penalty. She also helped a man get his sentence reduced after he received a ludicrous 99 years in prison for issuing less than $10,000 in bad checks.
Thinking of these moves with a clearer head, they cease to seem particularly ambitious or impressive. Before Colorado abolished the death penalty in 2020, there were only three people on death row, despite the state experiencing at least 100 homicides a year for the last decade. And no one should be getting 99 years in prison for a low-level white collar crime in the first place.
But this low standard for what counts as “progressive prosecution” in Colorado is what allowed McCann to credibly endorse Jefferson County DA Alexis King, the DA who handled the case of Rogel Aguilera-Mederos, the truck driver who received 110 years for an accident.
The problem is not limited to McCann. Boulder, one of the most progressive towns in the country, has been served by DA Michael Doughtery since 2018. Doughtery’s predecessor, Stan Garnett, was seen as progressive for his time, supporting marijuana legalization as early as 2009. Dougherty himself pals around with the modern “progressive prosecutor” crew, joining several initiatives of Fair and Just Prosecution over the last few years.
Doughtery also joined Mesa County DA Daniel P. Rubinstein, a Republican, in slamming Governor Jared Polis for commuting the Aguilera-Mederos’ sentence to ten years — before DA King had a chance to argue to a judge that he really deserved twenty or thirty.
Whether a DA is “progressive” is also a matter of relativity. Given the current realities of our justice system, all DAs do things that would strike most liberals as disgusting: whether that be jailing someone because they are too poor to pay bail or court fees, jailing someone with a drug addiction for using a drug, or what have you. But Doughtery’s attempt to smear the governor as anti-victim is a major strike against him, something he should have to do a lot to make up for before he gets to keep his “reformer” label.
These are problems that should inspire people to look deeper. And looking deeper, the data show that calling either prosecutor a “progressive” is chicanery.
The Vera Institute for Justice shows that, when McCann became DA, Denver’s incarceration rate was approximately 1,061 people per every 100,000. It went down to 1,000 by 2020. Until COVID-19 hit, McCann was admitting roughly the same number of people to county jail as her supposedly much more conservative predecessor, Mitch Morrissey, who is currently fear-mongering on local TV as a “criminal justice expert.”
Vera’s data is not as up-to-date for Boulder County. Jail admissions shrank by only 6.5 percent from 2018 to 2020 before plummeting due to the virus (like they did almost everywhere else). The county incarceration rate remained stable during DA Doughtery’s first year.
They’re not progressive prosecutors. They’re just prosecutors. And that is fine, but their voters have a right to know that the reform moniker is little more than a political stunt.
Rory Fleming is a writer and practicing attorney