By Rory Fleming
Most people living in large, prosperous urban counties today have what has been dubbed the “progressive prosecutor.” The progressive prosecutor is an elected prosecutor who uses the power position of District Attorney to de-prioritize and sometimes refuse to prosecute nonviolent, non-serious misdemeanor charges like drug possession. The progressive prosecutor also stands against the death penalty, though will usually request life in prison for murder defendants instead.
For many decarceration advocates, this is not enough. As an unattributed note at Harvard Law Review from 2018 states, “these reforms are ‘reformist reforms’ that fail to deliver on the transformative demands of a fundamentally rotten system.”
Undeniably, the system can be much more rotten than the ones these locally elected progressives are working to create. Just look to Orange County, California, where District Attorney Todd Spitzer just said the n-word several times in public.
That is an awful thing for any person to do, let alone a public official, and it is unsurprisingly leading to more mainstream scrutiny being placed on Spitzer. He is now losing endorsements from others in the law enforcement community, left and right. But Spitzer’s office has long been an ethical cesspool.
Thanks to the DA, Orange County is home to a massive private DNA surveillance database of everyone who has ever been diverted from misdemeanor prosecution, adding up to at least 150,000 people. Additionally, records obtained from local public defenders show that the county routinely plants jailhouse informants in suspects’ jail cells in order to coax confessions out of them without a lawyer present. Because that practice violates the Constitution, the US Department of Justice opened up a pattern-and-practice investigation against the OCDA’s office in 2016.
For counties like the OC that are both politically conservative and have hopelessly broken justice systems, the reformers’ strategy of voting out the DA probably makes no sense. In San Bernardino County, another conservative California county, long-term former DA Mike Ramos was defeated in a 2018 nonpartisan primary by Jason Anderson, a fellow Republican. Not all Republicans oppose criminal justice reform, but most do. Indeed, little has changed under DA Anderson. Even during the pandemic, jail and prison admission rates have remained basically constant under his watch.
Pete Hardin, a Democrat and would-be progressive prosecutor, is running against Spitzer in the 2022 primary. He has published prospective voter polling data in 2021 to try to build support for his candidacy. Even so, it is hard to imagine the OC, which has only recently become competitive for Democrats, electing Hardin, who represents the leftward position on the Democrats’ most internally contested issue: crime.
For public officials, following the law should not be a Democrat or Republican virtue, but a civil service virtue. And, at the end of the day, the primary problem that the OCDA office has is an issue with following the law. If OC voters cannot elect a DA of any party who cannot follow the law as a threshold matter, the federal government should intervene and force the DA’s hand. Spitzer’s use of the n-word just adds to the urgency.
However, Spitzer’s horribly racist decision can also provide the Biden administration an easy way out when it comes to undercutting a locally elected prosecutor. There are some centrist, tough-on-crime Democrats who prefer Spitzer’s approach to justice, including the many close Biden affiliates with a law enforcement background. But any Democrat is highly unlikely to defend an elected official who is a white man saying the n-word without consequence. If the DOJ puts a leash on Spitzer, as it should, Biden can tell any intra-party critics that he did not do it because he cares about maintaining constitutional rights for criminals. He can say he really did it to punish a white DA for saying the n-word.
The 2016 pattern-and-practice investigation against the OCDA office must be revived in earnest. The time for action is now.
Rory Fleming is a writer and a lawyer