Post-Midterms Forecast for Justice Reform: Cloudy, But Encouraging

Voters besieged with scary events and frightening rhetoric mostly swung in the opposite direction at the ballot box last week. That’s expanded an encouraging bipartisan reform climate for newly elected, or re-elected, governors, DAs and legislators—if they’re willing to take heed, says a leading justice commentator.

From the 1970s through the turn of the century, criminal justice was one of the most divisive issues in American politics, with the “soft on crime” tag dooming legions of candidates on the campaign trail.

But over the past few election cycles, a wide range of criminal justice reforms has earned public approval, suggesting that the chest-thumping rhetoric of yesterday continues to lose its once-potent appeal.

This month’s midterm elections deepened the trend.

In Florida, where reform has been particularly hard won, voters returned the right to vote to more than a million people convicted of felonies, while Louisiana voters declared that jury verdicts in felony cases now must be unanimous.

These measures erased two of the most egregious vestiges of the pre-civil rights era, and they carry enormous symbolic and practical effects.

Reform-minded prosecutors took over in multiple cities, from Boston to St. Louis. Police accountability was strengthened in Nashville and in Washington State. Though criminal justice wasn’t central to their campaigns, the governors-elect in Wisconsin and Nevada seem much more likely to advance sensible policies than their predecessors.

These gains for safety and justice, and many others, are particularly impressive in light of the political environment. From the time that polls opened for early voting through Election Day, there was a massacre of worshipers at a synagogue in Pittsburgh, a dozen bombs mailed to prominent political figures, and White House warnings about a caravan “invading” the country across its southern border.

Violence (and the fear of it) had to be high on voters’ minds. And it was: 83 percent of voters told exit pollsters that “extremist violence” was a factor in their votes.

When people are afraid, they yearn for protection, which traditionally has meant support for “lock ‘em up” measures.

Yet across the nation, voters besieged with scary events and frightening rhetoric mostly swung in the opposite direction this month. That suggests a real realignment of public opinion toward crime and punishment—one that distinguishes terrorism from street crime, that views people convicted of crimes as humans rather than “others,” and that recognizes the path to safer communities isn’t paved only with bricks and mortar.

While polls over the past several years have validated these attitudes, it’s what happens at the ballot box that really matters.

But there were caveats and mixed signals as well. Some of the progressive prosecutor candidates were defeated, while others didn’t make it through the primaries. The measure with the most direct potential impact on incarcerated populations—a ballot initiative in Ohio to downgrade some drug offenses from felonies to misdemeanors and reinvest the prison savings into treatment and victim services—went down by nearly 30 points.


Mike DeWine, Gov.-Elect of Ohio. Photo via Wikipedia

The Republican candidate for governor in Ohio, state Attorney General Mike DeWine, had been a strong supporter of expanding incarceration alternatives for lower-lever drug violators—and he may still be. But when his Democratic gubernatorial opponent, Richard Cordray, embraced the ballot measure designed to do exactly that, DeWine came out against it, arguing that as written the policy would make Ohio a magnet for dealers.

(Now that he has won, the legislature may take up and pass a similar package of policies in the lame duck session.)

In California, Gavin Newsom’s victory is likely to reinforce California’s efforts at prison reform. On the other hand, although the ballots are still being counted in Florida, once again, the nominal winner of Florida’s gubernatorial contest, Ron DeSantis, ran on a hardline justice platform while his opponent Andrew Gillum championed changes to the bail system and other reform measures.

Clouding the picture: Gillum, the Democrat, cited the conservative groups Right on Crime and the James Madison Institute as the sources of his criminal justice policy advice.

The Georgia governor’s race was another subtle illustration of how tricky this terrain remains. Republican candidate Brian Kemp took aim at illegal immigration and violent gangs but steered clear of criticizing the extensive efforts of outgoing Republican Gov. Nathan Deal, who led six consecutive years of nearly unanimous legislative action on criminal and juvenile justice.

Meanwhile, Democrat Stacey Abrams ran on an aggressive reformist agenda, but the messaging in her television ads and in the sole televised debate was far more forceful, lamenting low pay for local law enforcement officers and promising to crack down on drug peddlers.

One possible – and encouraging – takeaway from the electoral tea leaves is that criminal justice has been largely defanged as a campaign weapon. Healthcare, the economy and immigration ranked as the top tier issues; in the big races, bread-and-butter criminal justice policy flew under the radar, with few candidates for major offices featuring it as a core component of their platforms.

When they do raise the subject, it’s typically to call for more safety and justice rather than pitting the two against each other.

Crime’s dimming presence in campaigns follows a long-term drop in both violent and property offenses, which have been cut in half since their peak in the early 1990s. It also comes after a decade in which more than 30 states adopted sentencing and corrections policies that deemphasize prison in favor of programs that cost less and more effectively reduce recidivism, often with broad bipartisan support.

At the national level, an otherwise paralyzed Congress just managed to pass comprehensive legislation to combat the opioid epidemic, an effort that focused on expanding treatment and avoided the reflexive sentencing enhancements of the past. It also appears poised to approve both sentencing and prison reforms as part of the “First Step Act,” which would be the first major federal criminal justice policy package in years.

That criminal justice reform has become such fertile ground for bipartisanship may help explain why the reform agenda was neither a grand asset nor a grave liability in last week’s elections. American voters seem savvier about the issue and demand more than baseless rhetoric and simplistic slogans.

Adam Gelb

Adam Gelb

They’ve seen that movie, and now they want real results.

The new crop of elected officials across the country, at all levels of government and up and down the political spectrum, would do well to take notice.

Adam Gelb has worked in criminal justice for more than 30 years as a journalist, congressional aide, senior state government official, and nonprofit executive. He is currently developing a national nonpartisan criminal justice membership organization and think tank.


The Big Winners in DA Races: Women and Blacks

For decades, the prosecutorial profession has sorely lacked diversity. This year’s midterm elections demonstrated how decisively that has changed.

For decades, the prosecutorial profession has sorely lacked diversity. After analyzing data from 2014, The Reflective Democracy Campaign found that 95 percent of the nation’s elected prosecutors were white.

According to their research, just one percent of prosecutors at the time were women of color.

But in recent elections—including the Nov. 6 midterms—voters have opted for a slew of diverse prosecutors who better reflect the communities they serve, and who promised to do their part to move away from policies that perpetuate mass incarceration.

Rachael Rollins

Rachael Rollins via Twitter

In Boston this month, voters elected Rachael Rollins as the first black woman to serve as District Attorney in Suffolk County, Mass. Rollins has boldly advanced a proposal to not prosecute 15 offenses, including: trespassing and drug possession with intent to distribute –charging choices that align with reforms made by other recently elected DAs in Chicago, Philadelphia and elsewhere.

Rollins’ win continued a trend towards electing more women, African Americans and Latinos to prosecutorial posts that really became evident four years ago, when Baltimore voters cast their ballot for Marilyn Mosby, the youngest district attorney that city has ever elected.

In 2015, Portsmouth, Va., voters elected Stephanie Morales, the first woman to be the elected Commonwealth Attorney for the City.

Then, in 2016, Chicago voters elected Kim Foxx as Cook County District Attorney, Aramis Ayala as the first black State Attorney in Florida, Mark Dupree as the first black district attorney in Kansas, Kim Gardner as St. Louis Circuit Attorney, and Kim Ogg as the first Democratic district attorney in almost four decades in Houston, Tx.

And this year, in Rensselear County, New York, incumbent County District Attorney Joel Abelove lost to challenger Mary Pat Donnelly, a former town justice in East Greenbush, N.Y., and a mother of five who ran on the Independence Party ticket.

But what may be equally significant is the impact this month’s elections are likely to have on criminal justice reform in America.

While prosecutors on the ballot are often less well-known then individuals running for Congress, or for governor, they wield immense influence in the areas they serve. Prosecutors set the tone for the administration of justice, deciding whether to implement policies that increase incarceration or promote new practices that embody transparency, accountability, and aim to undo centuries of systemic racism.

This month, voters made clear that they’re largely ready for reform.

For example, Boston voters appear to have decisively rejected the perspectives of Rollins’ opponent, Michael Maloney, who positioned himself as tough on crime.  He had told  The Boston Globe that he would prosecute violence and gun crimes to the fullest extent of the law.

In Rensselear County, Donnelly came out in favor of implementing Law Enforcement Assisted Diversion (“LEAD”), which encourages officers to bring low-level arrestees to treatment or social services, rather than to booking. Meanwhile, her opponent, Abelove, may have suffered from criticism of his handling of a 2016 fatal police shooting in Troy, N.Y., of an unarmed DWI suspect.

Then-New York Attorney General Eric Schneiderman filed criminal charges against Abelove related to that case.  The charges were later dismissed, but could be re-filed by the state’s newly elected Attorney General, Letitia James, the first African-American women ever to hold that position in New York.

Another revealing result came in Dallas County, where voters elected John Creuzot, a former judge who helped pioneer the county’s first diversion court two decades ago, and who pledged to continue the strategies he pursued on the bench of ensuring those charged with low-level drug offenses received treatment in lieu of incarceration. During his campaign, Creuzot made clear that his priorities as District Attorney would align with his thinking as a judge.

“In the first 90 days, I’m going to give you a plan to end mass incarceration,” he promised.

In Texas’ Bexar County, Joe Gonzales registered a decisive win over his opponent Tylden. On the campaign trail, Gonzales stated he would immediately work on better implementing a policy allowing police to issue tickets to those found in possession of less than four ounces of marijuana instead of arresting them.

And also in Texas, in Fort Bend County, Brian Middleton beat GOP opponent Cliff Vacek, a veteran judge, becoming the first black district attorney for the county of more than 765,000 residents. Middleton campaigned on moving bail reform forward and examining racial biases in the prosecution of his office’s cases.

Criminal justice reform was not a winning issue in every prosecutor election.

Oklahoma boasts the nation’s highest incarceration rate, and in its Payne and Logan counties, District Attorney Laura Austin Thomas was reelected Tuesday. She defeated challenger Cory Williams by more than 4,400 votes. Back in June, Thomas described reform efforts as a “fun and nice and popular” sound byte, but largely full of “empty, empty words.”

Those prosecutors who are embracing reform, however, join a growing movement.

Working with others who are part of the Fair and Just Prosecution network, they are challenging the status quo and taking on innovative practices to create solutions that promote safer and healthier communities.

Many of these prosecutors are promoting changes to fortify the trust of their constituents.

Recently, State Attorney Kim Foxx published a groundbreaking report revealing demographics of defendants prosecuted and data on sentencing and dispositions. Others are promoting accountability by creating conviction integrity processes, including in Jacksonville and Orlando, Florida (where none existed previously in that state), and in Kansas City (where over 50 justice system leaders wrote to support the vital role of DAs to correct past injustices).

And it’s not just DA races.

Lauren-Brooke Eisen

Lauren-Brooke Esen

Voters chose to transform the criminal justice system in a number of ways. In Colorado, a constitutional provision that allows prison slavery was overturned. And Floridians decided to amend the state constitution to restore the voting rights of those convicted of a felony crime, which is expected to impact at least 1.4 million disenfranchised people in that state.

The movement away from the punitive criminal justice policies of the last four decades is gaining momentum, and on Nov. 6, a significant number of Americans said that was exactly what they wanted.

Lauren-Brooke Eisen is Senior Fellow in the Brennan Center’s Justice Program and the author of Inside Private Prisons: an American Dilemma in the Age of Mass Incarceration. She welcomes comments from readers.


Are Americans Finally Turning Away From ‘Tough-on-Crime’ Era?

The victories of reform-minded prosecutors like John Creuzot in Dallas County last week could signal a “sea change” in public support for reductions in mass incarceration and the easing of sentencing guidelines, advocates and experts tell TCR.

Democrat John Creuzot, who defeated Republican incumbent Faith Johnson in the Dallas County District Attorney’s race last week,  had a campaign website that declared in big, bold letters, “It’s time to END Mass Incarceration.”

Republican Locke Thompson ran a successful campaign in Cole County, Missouri, with a campaign platform that included eliminating cash bail for low-level misdemeanors.

The victories chalked up by Creuzot and Thompson underlined a fact that has largely been overlooked in postmortems of this month’s midterms: the growing support of voters for genuine change in the criminal justice system regardless of their party affiliations—-and there is perhaps no clearer bellwether for how far voters think the needle should move on criminal justice reform than how they vote for local prosecutors.

While legislators run on a variety of issues, we are left with clear choices on a single subject in district attorney races: How will they handle the prosecution of crime?

In addition to the passage of pro-reform ballot initiatives and the election of pro-reform candidates to national offices, the outcome of some local district attorneys’ races last week represented encouraging signs for justice reform advocates.

“Prosecutors are the most powerful actors in the criminal justice system,” says Udi Ofer, director of the American Civil Liberties Union (ACLU) Campaign for Smart Justice, which worked to inform voters about where candidates stood on criminal justice reform.

He said that while gubernatorial candidates with platforms to end or reduce mass incarceration won 78 percent of the races and 71 percent of federal races, the district attorney results on Nov. 6 also continued to show a steady drumbeat toward reform in even the reddest parts of the country.

Ofer added that “95 percent of elected prosecutors are white men in the United States, but the prosecutors elected on Election Day in Dallas, Birmingham, Boston and St. Louis, were all black.”

In Dallas, Creuzot’s victory over Johnson, the county’s first female African-American DA, lent itself to a more nuanced interpretation.

During the campaign, Johnson touted her “tough on crime” stance, but, according to The New York Times, she also oversaw a program in which people with an arrest but no conviction could have their records wiped. She promised not to seek cash bail for those arrested with small amounts of marijuana.

Creuzot, however, appeared willing to go a step further, defining drugs more as a “public health problem” and pledging to cut incarceration by 15 percent to 20 percent by the end of his first term.

While there was a  “Blue Wave” in the Texas courts on Election Day, giving Democrats majorities on seven of the state’s 14 appeals courts compared with only three before, Ofer said the outcome of the Creuzot-Johnson faceoff was the most exciting in the nation.

“In the Dallas DA race, there was both a very contested primary and a very contested general election, and the candidate who ran on a platform of reducing incarceration by 15-20 percent won,” he said. “That’s a big deal,”

Added Ofer: “Even the Republican candidate who had not taken a criminal justice reform platform embraced it. It became a referendum on which candidate is better on criminal justice reform.”

In Jefferson County, Ala., pro-reform challenger Danny Carr become the district attorney after committing his office to stop jailing people for low-level marijuana offenses. Ofer said his stance was linked to a report showing that black people in Alabama were four times more likely than whites to be arrested for marijuana possession.

Locke Thompson

Locke Thompson, elected DA in Cole County, Mo..

Lucy Lang, executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, said that with far-right libertarian groups and reformers getting on the same page, politics is playing a smaller role in determining voters’ criminal justice stances.

Measures such as eliminating cash bail or changing marijuana policy, are not “going to drastically affect the problems of mass incarceration,” she told The Crime Report, but these kinds of changes are “starting to reflect the fact that people think differently about a prosecutor’s role.”

Ofer said the polling ahead of the Nov. 6 election indicated that voters were hungry for reform.

An ACLU poll, for example, found 78 percent of likely voters, including 71 percent of Republicans, were more likely to support a candidate who believes in criminal justice reform; 59 percent of likely voters said they wanted candidates who would reduce jail and prison populations; and 75 percent of voters said they were more likely to support candidates who pledged to reduce the criminal justice system’s racial disparities.

The results, he said, build on the gradual sea change that had already begun.

“This is a continuation, so it’s not a blip, it’s yet another milestone in the movement to holding prosecutors accountable for fueling mass incarceration in America,” he said.

Kate Pastor is a freelance journalist based in New York City. Readers’  comments are welcome.


Creuzot Elected Dallas DA on Justice Reform Platform

John Creuzot, the Democratic candidate for Dallas County district attorney, handily defeated GOP-appointed incumbent Faith Johnson. Creuzot pledges to reduce mass incarceration. Johnson touted her successful prosecution of a white police officer for shooting an unarmed black teen.

John Creuzot, the Democratic candidate for Dallas County district attorney, handily defeated the GOP-appointed incumbent Tuesday, the Dallas Morning News reports. Creuzot had captured more than 60 percent of the votes against incumbent Faith Johnson by late Tuesday night. Creuzot had predicted that Dallas County voters would opt for the reform-minded former judge over the Republican appointed by Gov. Greg Abbott. Johnson has held office since January 2017.

Before polls closed, Johnson said her Republican affiliation didn’t matter so much as the work she has done in her nearly two years as district attorney. Johnson most recently won praise for successfully prosecuting a white police officer for the on-duty shooting of an unarmed black teenager. Even Creuzot has praised Johnson for bringing stability to an office that weathered controversy during the end of Craig Watkins’ tenure and long absences by his successor, Susan Hawk. Hawk stepped down in 2016. Creuzot said Johnson didn’t prove that she would do much to dramatically reform the office of Dallas County’s top prosecutor and reduce mass incarceration. Creuzot established one of the first drug courts in the state and takes credit for helping to reduce statewide prison populations. He has pledged to dismiss all first-time cases for possessing small amounts of marijuana, which he thinks will keep people who need drug treatment out of prison. His approach aims to treat drug use cases “more as a public health problem rather than a criminal justice problem.”


Why Your Vote Today Can Be the Start of Real Justice Reform

Many prosecutors have made the end of mass incarceration and other justice reforms a focus of their election or re-election campaigns, That’s welcome news, says the director of John Jay’s Institute for Innovations in Prosecution–and long overdue. But it should galvanize support for a broader approach to change.

The scourge of mass incarceration is at last getting the attention it deserves from reform-minded district attorneys around the country. Many of  them are running for election or re-election today.

The data bears out the extent to which elected prosecutors have contributed to the unconscionable number of people in American prisons, the tragically disparate racial impact, and underscores the fact that the exercise of prosecutorial discretion could significantly reduce those numbers.

The Vera Institute’s recent report Unlocking the Black Box of Prosecution provides vital information for both communities and prosecutors to help increase transparency in furtherance of this goal.

The United States has the highest per capita prison rate in the world, with more than two million people in American prisons, of whom nearly 60 percent are people of color (while comprising only 30 percent of the population).

As Michelle Alexander and others have persuasively argued, it cannot be overlooked that all of this exists in the haunting shadow of slavery, and the nation’s moral conscience depends on ending mass incarceration.

But in the midst of the public outcry and the heightened scrutiny of local prosecutors, voters and advocates would be well served to consider the public actors outside the criminal justice system who could do the same.

The agencies responsible for mental health, homelessness, substance use disorders, and other social ills have increasingly experienced political and budgetary constraints since the 1970s, which have been highly variable across agencies and jurisdictions. As communities have found themselves facing increased numbers of people without access to services, the clarion call to elected prosecutors has been to find ways to get those people out of sight, out of mind.

And so, over the past 50 years, coincident with the erosion of public welfare services, Americans have increasingly relied on the criminal justice system to solve problems that are not, at their heart, criminal. Problems like mental health, substance use, and poverty sometimes lead to criminal conduct.

But even more regularly, these conditions lead to conduct of which communities disapprove, but which do not, ultimately, constitute matters warranting criminal justice intervention.

Deinstitutionalization of the mentally ill since the 1960s has led to 2.2 million Americans with severe mental health conditions receiving no psychiatric treatment at all.

In the 1970s, 4.5 million units were removed from the nation’s housing stock, over 1 million SRO units were lost, and the nation’s public housing program was essentially abandoned, while increased numbers of single-person households significantly expanded the demand for housing nation-wide.  Some 25 percent of  incarcerated Americans suffer from mental health problems, and 10 percent are homeless at the time they enter jail or prison.

The effect of increased prosecutions has been well-documented. The devastation of the war on drugs, along with the broken windows policies of the 1990s in New York City and elsewhere, increased the probability of indictment and lengthened sentences for violent crimes, and the attendant parole and probation violations.

Bad federal legislation like the 1994 Violent Crime Control and Law Enforcement Act incentivized states to increase their prison population.  And so, we have quickly and devastatingly become the most incarcerating country in the history of the world.

Acknowledging this reality, progressive modern prosecutors over the past decade  have responded to requests from communities to become purveyors of alternatives for the homeless, the mentally unwell, or the poor.

And so, as elected officials come under increased scrutiny, Americans have increasingly seen their local DAs developing social service programming for people who come into contact with law enforcement.  Prosecutors across the country have created supervised release, cognitive behavioral therapy, and substance treatment options, to name just a few.

Thoughtful and well-meaning prosecutors, often with little social work, public health, or psychological expertise — responding to their communities as they are charged to do — find themselves making decisions in cases that at other times in American history would have been addressed through mental health facilities, homeless shelters, or other civil service providers.

Why is a prosecutor better situated than any number of other, lighter-touch agencies, to identify programming for a person who repeatedly drives with a suspended drivers’ license to get to work, or who breaks into an abandoned building to seek shelter?

In addition to asking DAs to process and divert these cases out of the courts, communities might also ask for increased early interventions by public housing, public health, and the civil courts.

It is an oft-repeated trope that to someone with a hammer, everything looks like a nail.  Americans should turn out to vote for their local reform DAs, and the winners of those elections should continue the trajectory that some have started towards reducing the nation’s prison population.

Lucy Lang

Lucy Lang. Director of the John Jay Institute for Innovation in Prosecution

But perhaps instead of asking the criminal justice system to look like a different tool entirely, communities would be well served to ask the other “tools” — many of which are agencies that are not electorally accountable — to rise to the occasion and help end mass incarceration as well.

Lucy Lang is the Executive Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. She welcomes readers’ comments.


Chicago’s Progressive Prosecutor vs. the Resistance

An intimate portrait of a progressive prosecutor’s first year on the job shows Chicago’s Kim Foxx fighting for her agenda against headwinds from her staff, judges, police and even fellow reformers.

In an intimate portrait of Kim Foxx’s first year as Cook County state’s attorney by a Chicago journalist who spent 2017 shadowing the newly elected prosecutor, a reformer’s agenda slams into resistance within her office, among police and judges, and even among impatient progressive supporters. The Marshall Project published the lengthy feature as the first in a weeklong series titled “Southside: Waiting for Justice in Chicago,” originally published earlier this year by Amazon.

The Foxx profile follows the first black woman in the city’s chief prosecutor’s post as she takes lessons from her childhood and career. A victim of sexual abuse and witness to domestic violence, she explains, “I’ve seen people I know and love do bad things — and it makes it hard to sum people up.” One in a wave of progressive prosecutors who see traditional approaches as unduly harsh, Foxx ended her first year of wrestling with policies on such issues as bail and charging severity by acknowledging a gap between her stated goals and the reality of what happens in Chicago’s courtrooms.


Why Aren’t Conservative Reformers Fighting for Innovative Prosecutors?

One prominent conservative ties it to fear of ‘culture wars’ but a Minnesota attorney says the argument doesn’t hold water.

The national movement to replace hardline incumbent prosecutors with those who love prison a bit less is gaining real traction.

George Soros, the FOX News conservative’s favorite boogeyman, deserves much of the credit, as do groups like Real Justice PAC and the Justice Collaborative Engagement Project. Their efforts have resulted in the election of prominent reforms such as Philadelphia’s new DA, Larry Krasner.

Soon enough, the next battleground will be smaller, rural, and more conservative counties.

As part of this movement for the past several years, I often wondered why there wasn’t a conservative equivalent to the groups focusing on electing prosecutors who can serve as vehicles for justice reform.

After all, in many other areas of justice reform—such as mass incarceration—groups like Right on Crime, the Cato Institute and the Charles Koch Institute have made common cause with liberals and progressives.

Recently, I got my answer. When asked about prosecutorial elections, Derek Cohen, the director of Right on Crime, said in an Oct 25 New York Times story,  “Electing a reform-minded prosecutor is good….But what is at risk of happening is getting a system where you have culture wars play out in the realm of prosecutorial discretion itself.”

The answer did not impress me.  To a certain extent, Cohen is right: “culture wars” have always been played out through prosecutorial discretion.

Perhaps the best example is abortion.

The “Wade” of Roe v. Wade fame was Mr. Henry Wade, the elected Dallas County, Texas, District Attorney from 1951 to 1987. Abortion prosecutions were rare, but Jane Roe (the anonymous name entered into the court case) wanted to obtain one safely, so she sued preemptively.

However, in the 1990s, a pregnant teenage girl named Kawana Ashley shot herself in the stomach, because her grandmother threatened to kick her out of her home if she got pregnant again. Elected Pinellas County, Fl., State Attorney Bernie McCabe charged her with murder. The Florida Supreme Court ruled that it would not “pit woman against fetus in criminal court.”

The impact of another legal battle that aroused deep national passions —on assisted suicide —might also be evident in Oakland County, Michigan, where Jessica R. Cooper was elected the top local prosecutor in 2008. Nine years earlier, as a Oakland County Circuit Court judge, she sentenced Dr. Jack Kevorkian to ten-to-25 years in prison for assisting his patient’s suicide in his quest for a death with dignity.

Then there is Lawrence v. Texas, a landmark 2003 Supreme Court ruling that voided laws against consensual sexual intercourse between persons of the same sex. Then-Harris County, Texas, District Attorney Chuck Rosenthal made the original decision to charge John Geddes Lawrence with sodomy, a decision that, on appeal, was found by the country’s highest court to violate the Fourteenth Amendment guarantees of due process.

So yes, there were quite a few “culture wars” in which prosecutorial discretion about whether to charge a defendant played a large role. But frankly, there aren’t many left that will be decided by litigation over criminal law.

One prominent example may be the “Stand-Your-Ground” debate which has become central to the larger controversy over the place of firearms in contemporary America. But in Florida, prosecutors largely opposed the state’s stand-your-ground law, because they mostly want more successful prosecutions and prison time for all.

There is also marijuana. But again, even some tough-on-crime Republican elected prosecutors, like Hamilton County, Ohio, Prosecutor Joe Deters in Cincinnati, want to legalize cannabis.

So Derek Cohen’s argument that the threat of getting caught up in cultural warfare by campaigning for modern prosecutorial reform doesn’t really make sense.

The real struggle now is between prosecutors who are willing to take a central role in fixing our broken justice system, and those who are content to leave it as it is.

Rory Fleming is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Rory is a licensed Minnesota attorney and he tweets at @RoryFleming8A. Readers’ comments are welcome.


Should Parole Hearings Be Off-Limits to Prosecutors?

Prosecutors often show up at parole hearings to influence decisions on whether to release individuals they have helped convict. But a Boston College law professor says justice is better served when they “stay home and keep quiet.”

Prosecutors should “stay home and keep quiet” when individuals they have helped convict appear at parole hearings, according to a research paper published in the Ohio State Journal of Criminal Law.

Noting that many states already prohibit prosecutors from testifying in person at discretionary parole hearings—although they can submit written statements—Boston College Law School Professor R. Michael Cassidy argues that similar practices should be extended to all states.

“I recognize that this is an uphill battle, given the political clout prosecutors wield before state legislatures, and the many other urgent reforms needed in our criminal justice system,” Cassidy wrote in a paper for the Boston College Law School Legal Studies Research Paper Series, based on remarks presented at a symposium.

But he said some degree of “prosecutorial restraint” would be welcome to counteract the “undue influence” prosecutors now have in determinations of whether to parole prisoners, particularly those convicted of serious crimes like murder.

Such influence undermines the purpose of Supreme Court rulings that paved the way for individuals sentenced to life without parole for crimes committed when they were juveniles to seek release from prison.

As an example, he cited a stiff warning from a prosecutor that a Massachusetts inmate who was granted a parole hearing after spending over 40 years behind bars for the murder of his parents and sister “will kill again” —a warning that apparently convinced parole board members to deny release.

This was an example “of a prosecutor offering a prediction of future behavior that as a professional matter he is simply unqualified to make,” Cassidy wrote.

Prosecutors should be zealous advocates on behalf of the state during a trial, but continuing their adversarial role once an individual has been sentenced is inimical to the goal of serving justice, the paper argued.

Once a defendant has been convicted and sentenced, the prosecutor should act as a “minister of justice,” providing only factual and legal assistance to parole boards, wrote Cassidy.

Some 38 states now provide some form of discretionary parole for adult prisoners.

Prosecutors are entitled to give input in some fashion to the parole board in those hearings, particularly if they possess “highly relevant, post-conviction information unavailable from documentary materials or the testimony of victims,” Cassidy wrote.

But if they do not possess that information, “I urge prosecutors to stay home and keep quiet,” he continued.

Once a case closes and an individual is sentenced, Cassidy argued, prosecutors should not act as advocates in the administrative setting of a parole hearing, and put their “thumbs on the scale” of parole decisions.

Citing the work of Pace University Prof. Bennett L. Gershman on prosecutorial ethics, Cassidy said prosecutors have the power and discretion to “threaten, intimidate and bully other actors in the criminal justice,” including “defendants, witnesses, attorneys, and even judges.”

“Parole board members are no exception,” he wrote. “Since most chief state prosecutors in the United States are elected, they have political constituencies of their own to bolster their influence.”

Ideally, Cassidy believes, prosecutors should not be allowed to testify at a parole hearing and should only be able to submit written comments in rare circumstances in which he or she has information otherwise unavailable to the parole board.

He observed that the Supreme Court has recognized that a parole decision is meant to be a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.’

Cassidy described this as a risk assessment, arguing prosecutorial testimony can be “unhelpful” at that stage, particularly when information is readily available elsewhere to assist in making such an assessment.

For example, a prosecutor may have information on a defendant’s feelings of remorse or willingness to accept responsibility, but this information also would be available through other means, such as post-arrest statements or trial testimony.

Cassidy noted that 14 states now allow the prosecutor to submit written materials, but not to testify personally. Many states have already begun enacting further limits on prosecutorial engagement in parole proceedings. Texas and Wyoming, for instance, allow written testimony from the prosecutor only if requested by the parole board.

“Requiring the prosecutor to seek permission to intervene is a step in the right direction that could act as a prophylactic against reflexive prosecutorial opposition at release hearings,” Cassidy wrote.

“It will require the prosecutor to think carefully about what unique contribution she can make to a parole proceeding that is consistent with her obligation as a minister of justice.”

The complete article is available here.

This summary was prepared by TCR news intern Lauren Sonnenberg. Readers’ comments are welcome.


More Prosecutor Candidates Run as Justice Reformers

In Texas, some candidates for district attorney run on platforms of being tough on police, jailing fewer nonviolent offenders. A spokesman for billionaire George Soros, who backs liberal candidates, says, “We want to end mass incarceration. That’s our North Star.”

In the past, candidates for district attorney touted their toughness on crime. District attorneys’ races have become more competitive, attracting large donations and challengers running on pledges to transform the criminal justice system. The focus on local races comes as overhaul efforts have stalled on the federal level, the New York Times reports. The push to rethink criminal justice practices has been embraced by liberals and some conservative. Polls show a majority of voters favor reducing the number of nonviolent drug offenders sent to prison. Dallas County district attorney Faith Johnson, a Republican, reminds voters she won a rare murder conviction against a white police officer who shot into a car full of teenagers, killing a black 15-year-old boy. Her Democratic opponent, former judge John Creuzot, pledged to be tougher on police. He promised that he would reduce the number of people who end up behind bars.

In Jefferson County, Al., Democratic district attorney candidate Danny Carr has floated the idea of treating the possession of small amounts of marijuana more like a traffic violation. In San Antonio, Democrat Joe Gonzales has pledged to rehabilitate more nonviolent offenders, rather than locking them up. Rachael Rollins in Boston, with no Republican challenger, released a list of low-level crimes like disturbing the peace that she would decline to prosecute. The push to overhaul prosecutors’ offices was pioneered by billionaire George Soros, who has backed more than 20 candidates. In Dallas, Soros has given more than $46,000 worth of polling to Creuzot. The Texas Organizing Project, which Soros funds, has donated $190,000 in canvassing. Whitney Tymas, who heads Soros’s prosecutor initiative, says, “We want to end mass incarceration. That’s our North Star. We’ve won twice as many races as we’ve lost.” Some conservatives prefer changing sentencing laws and warned against dragging prosecutors office into partisan fights.


How Larry Krasner is Remaking Philly D.A.’s office

Philadelphia District Attorney Larry Krasner is one of about two dozen “progressive prosecutors” recently elected around the U.S. He may face an “insurmountable challenge” in trying to reduce mass incarceration, says The New Yorker.

Philadelphia District Attorney Larry Krasner is one of about two dozen “progressive prosecutors,” many of them backed by George Soros, who have won recent district-attorney races. Krasner now oversees 537 employees, including 300 prosecutors, and an annual budget of $42 million. Krasner often talks about his ambition to make Philadelphia the best progressive D.A.’s office in the U.S., and he knows that he faces an almost insurmountable challenge, reports The New Yorker. Resistance comes not only from the lawyers he now supervises but also from some judges, many of whom are former prosecutors. “They are being forced to look back on their entire careers and say to themselves, ‘Did I get it all wrong as a prosecutor? Have I gotten it all wrong as a judge? All these years coming down with 25 years when it should’ve been ten? And ten when it could’ve been two?’”

Last month, Krasner greeted 38 young Assistant District Attorneys, known among the staff as “baby A.D.A.s,” at the start of an eight-week training period. This year’s A.D.A.s could have been forgiven for thinking that they had mistakenly wandered into training for public defenders. “Who here has read Michelle Alexander?” Krasner asked, citing the author of “The New Jim Crow,” an analysis of mass incarceration.  “Look at the stats. There are more people of color in jail, in prison, on probation and parole than there were in slavery at the beginning of the Civil War.” He reminded the trainees that “you represent people who are not victims of crime, people who are not defendants. You represent kids who are going to public schools … You represent—because you are stewards of an enormous amount of social resources—what their lives can be in ten or 15 years if resources are in those schools.”