Surprising as it may sound, within the federal criminal justice system, judges tend to be the good guys—at least compared with prosecutors—when it comes to the fight over sentencing.
Until President Obama signed the Fair Sentencing Act in 2010, crack sentencing was 100 times more severe than powder cocaine sentences for the same amounts. Afterwards, crack sentences were reduced to a still-unequitable 18:1 ratio. President Trump signing the First Step Act in December 2018 finally made the improvement retroactive. The National Association of Assistant United States Attorneys, which represents the vast majority of federal prosecutors handling cases in court, aggressively opposed both measures. Meanwhile, federal judges demanded shorter sentences and fought back against overzealous sentencing recommendations from prosecutors.
But the federal and state justice systems are completely different beasts. Federal judges enjoy lifetime appointments. Chief federal prosecutors, called US Attorneys, are appointed in similar fashion to federal judges, and their rank and file often stay on from administration to administration.
As a result, criminal justice reformers rarely bother criticizing federal judges or prosecutors by name—while massive public awareness campaigns from the ACLU and other groups have focused on educating people about who their District Attorney is. For most local prosecutors—in 45 US states—their boss is a politician. It is normal for rank-and-file prosecutors on the state level to get fired for political reasons, or not sharing the vision of the office.
Local trial court judges are also very different from their federal counterparts: They face partisan election in 20 states and are selected via nonpartisan election in 22 others. And this is important information, because these local judges—many of them former prosecutors—are so often obstacles to reform.
Reforming the criminal justice system for millions of people by focusing on a single DA seat in a major city, for example, is certainly simpler than trying to fight for change in the state legislatures, where lawmakers are near-unanimous in their populist disdain for a more humane justice system. But in several cities with pro-reform DAs throughout the country, the judiciary has resurfaced as the primary foe to substantial decarceration on the local level.
Sometimes that plays out through forcing people off of their medication-assisted-treatment for opioid use disorder, under threat of jail. Other times, judges simply scorch the earth hotter than the prosecutors.
Judges’ Negative Impact on Philadelphia
The latter is the case in Philadelphia, where progressive prosecutor Larry Krasner shocked the world by being elected district attorney in 2017. Local judges have repeatedly blocked him in trying to fill the mandate of his electorate, which resoundedly supported his sweeping criminal justice reform proposals.
Yet the oft-forgotten context of Krasner winning his 2017 DA race is that Philadelphia has long had one of the nation’s worst big-city justice systems. The “superpredator” comment that brought Hillary Clinton so much heat in the 2016 presidential election season was tame and polite compared to former Philly DA Lynne Abraham’s stance on juvenile justice.
Abraham, who served on the Council on Crime in America alongside the man who created the “superpredator” myth about a coming generation of hyper-violent youth, made Philadelphia the world capital of death-in-prison sentences for children. Unsurprisingly, the vast majority of these kids were Black. In addition, Abraham, who served as DA from 1991 to 2010, made Philadelphia the worst hotspot for the death penalty above the Mason-Dixon line.
Some judges in the City of Brotherly Love feel threatened by the Krasner-era climate of human rights and dignity.
Seth Williams was elected DA in-between Abraham and Krasner by claiming a commitment to a slightly less cruel system, but he failed to accomplish much and then was sentenced to federal prison for corruption. The people wanted change, but the bench worked as local lawyers in a time when Abraham and Williams were normal.
Some judges in the City of Brotherly Love feel threatened by the Krasner-era climate of human rights and dignity. Judges Kathryn Streeter-Lewis and Barbara McDermott have been sentencing the so-called “juvenile lifers” to more prison time than both the prosecution and defense recommend—a phenomenon which virtually never happens.
Judge Scott DiClaudio, a former private criminal defense attorney with a history of ethical transgressions, is currently fighting a recusal request from Krasner’s office that was filed because he is dating a former prosecutor, Cathernine Smith, whom Krasner let go after taking office. Smith, a tough-on-crime prosecutor hired during the Seth Williams era, claims she was fired for being white.
In April 2018, DiClaudio gave four years’ probation to an activist on a felony marijuana plea related to an illegal marijuana merchants’ expo the activist hosted. This was just weeks after Krasner announced he would no longer prosecute marijuana possession regardless of weight—though Krasner’s widely celebrated memo did not go as far as to promise a declination of charges for sales.
After Krasner gave Philadelphia judges a heads-up in March 2019 on his plans to collaborate with defense attorneys to reduce terms of probation that are longer than needed to maintain public safety, some judges (who refused to be named in the media) complained that Krasner is “usurping” their authority so he can “be the judge, the DA and the public defender all in one.”
Dodging transparency by refusing to be publicly named is shameful for public servants, but it is probably smart politics. Especially considering that the grassroots coalition that propelled Krasner into office is now turning its attention to Philadelphia’s hundred-odd elected judges. These campaigners know that their mission is possible, considering the 2018 sweep of Republican judges out of Harris County, Texas, which includes Houston.
We Need Fewer Former Prosecutors on the Bench
These dynamics, with local judges standing out as enemies of reform, play out in many other locations.
Unlike in Philadelphia or Houston, people in Virginia cannot mobilize to make their judiciary a bit more partisan in their favor. But Virginia’s legislatively-appointed judges are not like those principled judges of the federal bench who realize incarceration does not solve all the world’s problems. At least some of them resemble the typical hyper-carceral federal line prosecutor, or the draconian state legislature that selected them.
An instructive contrast can be seen in a cannabis tale of two Virginia cities: Norfolk and Portsmouth. Norfolk Commonwealth’s Attorney Greg Underwood and Portsmouth Commonwealth’s Attorney Stephanie Morales both recently announced that they will no longer pursue most marijuana possession cases. While both cities overwhelmingly vote Democrat, Norfolk’s eight judges unanimously opposed the move, while Portsmouth’s four judges embrace it.
“It is essential to have a bench that isn’t dominated by former prosecutors, and to include people with public defense and civil rights experience.”
Although this relationship is not causal, at least half of Norfolk circuit court judges are former prosecutors, whereas Portsmouth has fewer ex-prosecutors on the bench. Now that the local judges are trying to force his hand on marijuana prosecutions, Norfolk Commonwealth’s Attorney Underwood has petitioned the Virginia Supreme Court to settle the spat.
The jury is out on whether appointed or elected judges are fairer. But as the Trump Supreme Court debacle has shown, the idea there are “no Republican or Democrat judges” is a ruse. Many respected legal minds believe that is also true of former prosecutor and former defense lawyer judges.
Rachel Barkow, an NYU Law Professor and former member of the US Sentencing Commission, commented that, in order to end mass incarceration, “It is also essential to have a bench that isn’t just dominated by former prosecutors, and to include people with public defense and civil rights experience.”
Correction, April 18: This article was updated to more accurately reflect Judge Scott DiClaudio’s felony marijuana plea case.
Photo: US Air Force / Airman 1st Class Aspen Reid