Mass. DA Exemplifies How the “Progressive Prosecutor” Tag Is Overused

    During a recent webinar hosted by Prosecutorial Performance Indicators, an organization that encourages better data collection in the criminal justice system, Tampa’s elected State Attorney Andrew Warren acknowledged that prosecutors are generally wary of data for reputational reasons.

    “The data itself is going to reveal some concerning trends, at a minimum,” Warren said. “But when you frame it in the context of transparency, I work for the taxpayers of Hillsborough County—and they have a right to know the things that are happening in their criminal justice system.”

    When voters elect prosecutors in the vast majority of states, it is essential that they have the opportunity to become informed, so that prosecutorial decisions and the social issues they influence are subject to public scrutiny.

    For instance, should we as a society tell people what they can and can’t do with their bodies? It’s not “progressive” when conservatives dictate women’s reproductive health decisions. But most so-called progressive prosecutors still charge people with drug possession.

    Marian Ryan, the district attorney of Middlesex County, Massachusetts, is one “progressive” DA who does so frequently.

    According to data provided from her office and posted online, she used simple drug possession charges, under the statute for people with no priors, 8,092 times from 2014 to 2020.

    When we include all low-level, nonviolent charges that neighboring Suffolk County (Boston) DA Rachael Rollins promised to decline on the campaign trail in 2018, that number gets much higher. (DA Rollins largely kept her promise, and independent research found that the new policy increased public safety.)

    Yet Ryan is still seen by many as a “progressive.” Appointed to the job by former Governor Deval Patrick, and re-elected twice, the DA uses the word liberally in her campaign materials. In her most recent campaign, Ryan faced leftward challenger Donna Patalano, but trounced her after the local press corps framed the race as a ”progressive face-off.”

    With the exceedingly low bar for “progressive” prosecutors to claim that mantle, DA Ryan has received praise for being less draconian than her peers.

    This is in a state where income inequality is soaring, with Black Massachusetts residents making about 40 percent less, on average, than white residents. Incarceration statistics present the same story: Black people comprise 9 percent of the state’s population but over 28 percent of the prison population. White people, in contrast, make up 80.6 of the state population but 42 percent of the prison population. Black people also have a per capita jail population rate in Middlesex County that is over five times higher than that of white people.

    The word “progressive,” it seems, is complicated in Massachusetts, as elsewhere. With the exceedingly low bar for “progressive” prosecutors to claim that mantle, DA Ryan has received praise for being less draconian than her peers in much less liberal areas in the state.

    In 2017, when the state legislature was considering a sweeping criminal justice reform bill package, most of the DAs signed a fear-mongering letter to try to thwart it or water it down. While Ryan opted out of signing the letter, she also did not voice support for the reforms.

    Unsurprisingly, like many other reform prosecutors, Ryan has trimmed the edges of carceral excess in her approach to prosecuting low-level crimes, while being notably overzealous when it comes to prosecuting more serious crimes. In murder cases, the DA has prosecuted kids as young as 15 as adults.

    In 2008, after Kimberly Savini stabbed her boyfriend who was allegedly abusing her, Ryan, then an assistant prosecutor, cited Savini’s size in claiming she was the “aggressor.” Savini was later sentenced to life with parole.

    In 2010, Geoffrey Wilson, a young Black man, was charged with murder for the death of his six-month old baby. The prosecution’s theory was that Wilson shook his baby to death. The medical examiner on the case, Dr. Peter Cummings, originally agreed. However, after further investigation, the examiner revised his conclusion to state that the cause of death was “undetermined.” Ryan ended up finally dropping the charges against Wilson.

    In 2015, that medical examiner turned whistleblower, accusing DA Ryan of bullying him to stick to his initial conclusion.

    After over 20 years of wrongful incarceration for murder, a judge freed Michael Sullivan from prison in January 2013, though he was subject to an ankle monitor and court supervision. DA Ryan took office four months later, then spent a year arguing that the new evidence showing Sullivan wasn’t at the scene of the crime did not warrant a new trial.

    The DA lost at the Massachusetts Supreme Judicial Court, but that was not the end of it. Ryan waited until 2019 to announce that her office would not retry the case, meaning that Sullivan was unnecessarily stuck in limbo between free and unfree for another six years.

    Now, there is another potential exoneration in the press: that of Keith Winfield, convicted of horrible child abuse crimes and sentenced to life without parole. Dr. Newton, the same expert witness involved in other flawed cases, was instrumental in obtaining Winfield’s conviction.

    When a reporter at The Appeal asked DA Ryan’s office why her line prosecutors still count on Dr. Newton, a spokesperson said that the prosecutors there “never pursue charges based solely on a diagnosis” and that it is “just part of what we look at.”

    When prosecutors like Ryan obtain wrongful convictions for people accused of horrible crimes, there is usually no accountability.

    Former Kern County (Bakersfield), California, District Attorney Ed Jagels originally “built his career” on dozens of child molestation convictions, but most of the crimes were later found to have never happened. He was repeatedly reelected, and when he retired, the Associated Press described his career as a “mixed legacy.” The California Bar never disciplined Jagels for his misconduct; today, he still works for the office where he perpetrated regular injustices.

    Without Middlesex County’s voters giving greater attention to the way she governs in their backyards, DA Ryan will probably keep falling up. Some are already wondering if she wants to become the next Massachusetts attorney general, a job where the normal interpretation of her duties would include trying to preserve other wrongful convictions obtained by state DAs.

     


     

    Image of Middlesex County, Massachusetts via Wikimedia Commons/Public Domain

    • Rory is a writer and licensed attorney. Previously, he ran Foglight Strategies, a campaign research services firm for forward-thinking prosecutors, and worked for the Law Enforcement Action Partnership, Harvard Law School Fair Punishment Project and the National Network for Safe Communications at the John Jay College of Criminal Justice. He lives in Philadelphia.

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