In the mid-1990s, Joseph P. Overton—a senior vice president at the Mackinac Center for Public Policy—observed that no matter how hard experts push back against failed public policy, reform will always be limited to initiatives that fit within a “window” of politically feasibility. Without political will, even the best remedies to society’s problems will get sidelined, sometimes for decades.
On November 6, the “Overton Window” on urban criminal justice policy was thrust open with the election of Democrat Rachael Rollins as district attorney of Suffolk County, Massachusetts, which covers the city of Boston and several other communities that have been hit particularly hard by the overdose crisis. She is the first woman of color to hold such a position in Massachusetts.
Rollins has promised to refuse to prosecute marijuana cases, and to rely less on the state’s drug court—which has been criticized for using punitive sanctions against people who relapse. The Massachusetts State Supreme Court recently upheld the constitutionality of incarcerating people on probation who continue to use drugs.
“With Rollins, I feel confident that Boston has a chance to implement vital harm reduction techniques, such as supervised consumption sites.”
Reform advocates lauded Rollins’ victory as a blow to tough-on-crime policies that have kept many jails and prisons in Massachusetts severely overcrowded.
“I am thrilled that Rachael Rollins was elected as our new district attorney,” said Jess Tilley, executive director of the New England Users’ Union and co-chair of the National Alliance of Drug User Unions. “Our former DA represented a puritanical system that used punitive measures that subjected people who use drugs to unnecessary stigma and jail time. With Rollins, I feel confident that Boston has a chance to implement vital harm reduction techniques, such as supervised consumption sites.”
“Rollins winning the general election to become Boston’s next top prosecutor is the dawn of a new era,” said Rory Fleming, founder of Foglight Strategies, a prosecutorial watchdog and consultancy,
Fleming assembled a large-scale report on district attorneys’ drug policy positions for Filter. He thinks that Rollins’ campaign promises—which also include a default stance of not prosecuting low-level drug possession, and a promise to decriminalize possession of drug paraphernalia—mark her out as the most reform-minded local prosecutor in the US.
Larry Krasner and Rollins have spoken several times, and the Philly DA “is looking forward to continuing his conversations and assisting [Rollins] in any way that he can.”
Before Rollins’ win, that honor definitely fell to Larry Krasner—who spent decades fighting for the rights of marginalized defendants victimized by the “law and order” mentality of police and courts before becoming Philadelphia’s DA in 2017. By electing Krasner as head prosecutor, Philadelphia voters sent a clear message that the city’s status quo—stuck in place since the days when former Mayor Frank Rizzo famously attended a black-tie affair with a nightstick tucked into his cumberbund—was over.
A spokesperson from Krasner’s office said that Krasner and Rollins have spoken several times, and that the Philly DA “is looking forward to continuing his conversations and assisting [Rollins] in any way that he can.”
Unlike Philadelphia, which recently instituted a buprenorphine program in its county jails for people who suffer from opioid use disorder (OUD), Massachusetts jails do not offer medication-assisted treatment (MAT).
Massachusetts Governor Charlie Baker recently signed a package of legislation expanding MAT in the state prison system; however he has also been a vocal supporter of expanding the state’s involuntary commitment law for drug users who do not commit a crime—a strategy that defies the vast body of research on addiction and recovery, and may well be unconstitutional.
Despite her busy schedule, I was able to catch up with DA-elect Rollins after her victory.
Christopher Moraff: Congratulations on your victory. Your election demonstrates that the revolutionary win by Larry Krasner in my city has the potential to gain steam. How would you describe this phenomenon? What has changed about the voters of cities like Boston and Philadelphia that their voters no longer see “law and orderism” as the way to fight low-level crime—particularly involving illicit drugs?
Rachael Rollins: Thank you. Voters in Suffolk County sent a very clear signal in this election that our criminal justice system is not working for too many people and it’s time for a change. People recognize that criminalizing poverty, mental illness, and addiction doesn’t work. We have a 67 percent recidivism rate and a system that does not treat all people the same—especially the poor, people of color and women.
I think the ACLU’s “What a Difference a DA Makes” campaign has been tremendous, and really helped a lot of people understand these issues, and what we can do to change them. Also, our legislature just passed a sweeping criminal justice reform bill that made significant, progressive and restorative changes that will help end wealth-, race- and gender-based disparities.
DAs like Larry Krasner and Kim Foxx have led the way, and I’m excited and humbled to be in their company, and to get to work.
Moraff: In Philadelphia, DA Larry Krasner has taken great strides to institute reform policies, including bail reform that eliminates cash bail for a number of non-violent offenses. However this does not extend to street drug dealers who sell fentanyl or fentanyl-contaminated products. In my experience, the distinction between people addicted to drugs and dealers is often false. In many cases, street drug dealers are addicted themselves; and they rarely know what’s in the bags they sell at retail level. Can you comment on this gray area, and if and how your office will be different in your approach to bottom-of-the-chain, low-level drug dealers?
Rollins: Too often, as prosecutors, we have one tool in our toolbox—and that’s incarceration. I want to use more tools. I want to eliminate cash bail and I want people to get the treatment they need so they don’t come back into contact with the criminal justice system. That’s why I’ve said that I will not criminalize addiction, poverty and mental illness. That will make us safer and truly help the people who need it. But we’re going to look at every situation, and every individual, with common sense and a sense of humanity, because I think that being compassionate on crime is being smart on crime.
I agree with your assessment and months ago proposed that the crimes of drug possession and possession with intent to distribute not be prosecuted unless there is a supervisor’s approval. Instead, individuals arrested for these crimes will be offered and encouraged to enter treatment and receive services commensurate with their individual needs. All of this will occur pre-arraignment, as to avoid branding people with a CORI [a criminal record] when they are suffering from a health issue (addiction and/or mental illness).
Moraff: Your election—and the movement to a more just criminal justice system at local level—coincides with one of the most regressive presidential administrations on justice policies in decades. Do you anticipate a challenging environment in terms of working with your federal counterparts, who may take the exact opposite approach as you? Have you given thought to how you might handle this potential conflict?
Rollins: I believe strongly in working in partnership with law enforcement at all levels—from our federal counterparts to local police. I’ve had good conversations with many of them already and I’m going to continue to have those conversations and work together. But what I’m not going to do is let the current system that is failing too many people continue as it is.
Photo via rollins4da.com