David Soares Is a Case Study in Changing Standards for “Reform” Prosecutors

    Everyone knows how it feels to revisit something you once loved—a TV show such as Entourage, for example—only to find it’s no longer so sparkly. David Soares rose to national criminal justice reform prominence when he was first elected as the district attorney for Albany County, New York. That was in 2004, the year Entourage hit the air.

    Back then, it was a different time. American criminal justice was in arguably its worst era, with mass incarceration peaking a few years later, in 2007. Soares’ opposition to New York’s infamously harsh Rockefeller drug laws won him the support of billionaire George Soros, who funnelled $70,000 into the Working Families Party to back his DA bid. (In 2004, that was a lot of money for a DA race.)

    Soares’ victory over an establishment-backed Democratic incumbent was a stunning demonstration of how concerted efforts and targeted funding could shift the criminal justice landscape.

    But things are just different today. A robust nonprofit network has pushed fighting mass incarceration into the mainstream. There are now numerous DA candidates who go much further than arguing against the infliction of 15 years-to-life behind bars for possessing four or more ounces of heroin or cocaine.

    David Soares has drawn his lines in the sand on a whole range of recent reforms.

    Today’s reform prosecutors are moving toward the decriminalization of drug possession altogether, recognizing that people’s decisions to use drugs are complicated personal choices—choices that are often non-problematic, and that should be considered, at worst, a public health issue. Such concepts are not particularly radical in the wider world. The Lancet, one of the most respected medical journals, suggested it as an alternative to the War on Drugs back in 2001. But for some law enforcement figures to be arriving here is a big deal.

     

    A Record Under Fire

    In modern times, David Soares has drawn his lines in the sand when it comes to a whole range of recent reforms.

    Photo via Albany Count District Attorney’s Office

     

    New York State’s legislature has made strides, for example, to reform its discovery laws, making the rules around what information defendants get about their own cases fairerabout as fair as Texas. No more “trial by ambush,” as the defense bar had long claimed. The state also restricted the use of cash bail for people who are too impoverished to pay their way out of pretrial incarceration and only face more minor charges.

    As the president of the District Attorneys Association for the State of New York (DAASNY), Soares has opposed these changes and even helped roll them back.

    Albany Assemblyman John McDonald claimed that Soares was just doing his job, as he “had to do that job of representing the organization but also his own personal views, and they probably weren’t 100 percent in-line.”

    But Soares also could have left the organization altogether. Both Philadelphia DA Larry Krasner (a Democrat) and San Joaquin County, California, DA Toni Verber Salazar (a Republican) have done this, arguing that their respective state associations represented regressive criminal justice ideologies.

    DA Soares has also opposed New York’s commission on prosecutorial misconducta national first. There are entire newsrooms dedicated to vetting this serious problem, one that not infrequently leads to wrongful convictions for serious crimes like rape and murder. The commission would have vetted prosecutors like former Long Island DA Tom Spota, who faces a sentencing hearing this month for covering up brutality by a disgraced and incarcerated police chief. In Ontario County, New York, DA Jim Ritts was elected over Kitty Karle in 2017 by slamming her for her record of misconduct, only to get cited for misconduct himself right after the race. The New York State Bar, which licenses and disciplines attorneys, shows no discipline for any of the three.

    Soares likely knew all this, and sued the state to prevent the misconduct commission from getting off the ground anyway.

    His efforts have succeeded, at least so far. On January 28, 2020, Albany County Judge David A. Weinstein ruled that the commission would violate the separation of powers doctrine by vesting attorney regulation in the executive branch. Judge Weinstein did not consider that the judiciary branch (which controls the State Bar) has failed in holding bad prosecutors accountable. The litigation is ongoing.

    There are also problems in the detached way that Soares runs his office. Transcripts and court decisions obtained by Filter show that, in 2017, Soares was asked by Albany County Judge Peter A. Lynch if he had ever appeared on a court transcript since he took office as DA. Soares testified, “No, I don’t think I have.”

    In a March 2020 case, involving a man with asthma who had six days left to serve on a four-month jail sentence, one of Soares’ deputies demanded that he serve the six days, despite being at high risk for contracting coronavirus. Judge Lynch slammed the deputy for providing such a “clear and blatant example of a one-dimensional view of the purposes of sentencing.”

    Polling from the Center for Law and Justice found that only 14 percent of Albany’s Black residents agreed that “the District Attorney handles cases in a fair manner,” despite Soares being the first Black DA in county history.

    Despite all of this, Soares still presents some bright spots for reformers. He has announced support for releasing some prisoners in the county jail due to coronavirus, created reentry and expungement services for youth convicted of felonies, and denounced some of the Trump administration’s immigration policies.

    In a statement to Filter, the Soares campaign wrote that he also supported raising the age of criminal court jurisdiction from 16 to 18, created an innovative young adult diversion program for certain felonies, and opted to no longer prosecute low-level marijuana possession cases.

    But is verbalizing support for some reforms, while taking small steps toward progress on less controversial issues, enough for Albany this year?

     

    A Challenger From the Left

    Matt Toporowski, a young defense attorney and former deputy prosecutor under Soares, doesn’t think so. He is not shy about calling his former boss out on the differences between rhetoric and action.

    Toporowski told Filter that he quit in 2015 because Soares’ top brass repeatedly harangued him for trying to balance prosecution with compassion.

    In one instance, when he was prosecuting a mentally ill woman who committed a series of minor retail thefts, Toporowski charged that a senior prosecutor in the office griped that “the big box store isn’t happy with this, you should have recommended jail or probation.”

    In another case, involving a college student with a first drunk driving offense, Toporowski claimed he asked for a conditional discharge and fines, as that would be punishment enough for a young man who made a mistake. Again, someone from the Soares administration grilled him, stating: “Our policy is to always recommend probation or jail, if we spend the time going to trial.”

    But Toporowski was not satisfied going up against Soares in private practice, either, because he saw how even the most well-meaning of defense attorneys stand little chance when a DA is committed to wrecking a client. While working to defend a young Black man named Kalim Lewis, Toporowski explained, he watched as one of Soares’ prosecutors struck the two Black prospective jurors left after all others were dismissed due to lack of trust in law enforcement.

    Lewis, who was accused of owning an illegal gun found in a Victoria’s Secret bag in a female roommate’s room, sunk into his chair after that, and was ultimately convicted and sentenced to a decade. That was the final straw, Toporowski said, and a DA candidate was born; he will face off against Soares in the June primary.

    There are ways to be skeptical of Toporowski. He is currently only 33 years old, though Soares was 34 when he first took office. Being a district attorney is one of the most emotionally draining and diplomatically demanding jobs around, and it seems that a quality of solemn detachment is the best way to avoid burnout or a breakdown. Soares has handled things for over 15 years without imploding, which will create confidence in older, more risk-averse voters.

    Soares has swiped at his passionate challenger, claiming that “There is not a more progressive prosecutor in the state of New York and perhaps even the country. Anyone who is attempting to run to the left of me would be encroaching on recklessness.”

    If Caban had won and kept her promises, Soares would have looked like Judge Dredd by contrast.

    Such hubris is unjustified. In 2019, Tiffany Caban, a candidate who wanted to decriminalize a vast swath of misdemeanor crimes and ask for lower sentences for more serious felonies, only just barely lost the Queens DA race. If Caban had won and kept her promises, Soares would have looked like Judge Dredd by contrast.

    The shift in reformers’ perceptions of Soares probably says more about the change in the national landscape—in a good way—than it does about the man himself.

    While there has only been a modest decline in incarceration, thanks to better prosecutors and some of the most incarcerated states’ legislatures dialing retribution back a notch, many issues barely discussed in past decades have been ameliorated. Despite tough talk from President Trump and others, the death penalty is dying from attrition, and prosecutors who still obtain it are widely condemned and often lose re-election.

    In national politics, presidential candidates in 2020 have pushed for the end to both the death penalty and the exploitative cash-bail system. We should remember that it was not too long ago when Bill Clinton flew back to Arkansas as a presidential candidate to watch a severely mentally impaired Black man get executed before his very eyes.

    Considering that there are now many elected prosecutors who openly ignore sections of the criminal code that legislators are too cowardly to nullify, it is accurate to say Soares is now on the conservative end of the “reform” prosecutor spectrum, if he’s still on it at all. The shift in battle-lines should encourage those who have fought for it.


     

    Top photo via Peakpx.com/Public Domain

    • Rory Fleming

      Rory 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. He was also a communications specialist for the National Network for Safe Communications, a research center at City University of New York John Jay College of Criminal Justice. Rory is a licensed Minnesota attorney. He lives in Philadelphia.

    • Show Comments