Prosecutor Reform Will Largely Play Defense on Election Night

    The so-called progressive prosecutor movement started around 2015. It was about getting candidates elected to implement local policies with profound human rights impacts—from ending the death penalty to declining to prosecute low-level charges like drug possession and other decarceration measures. Its high-profile victories included the elections of Larry Krasner in Philadelphia, Marilyn Mosby in Baltimore, Rachel Rollins in Boston and Chesa Boudin in San Francisco.

    Of those four names, the latter two are now gone; the former two are in deep trouble. Amid a backlash fueled by political exploitation of people’s fear of crime, the movement has been in retreat for some time.

    That’s the context of a slate of perhaps a dozen key top prosecutor elections taking place nationwide on November 8.

    Altogether, it’s easy to see why decarceration proponents will be in a defensive posture in these elections.

    Other factors only add to the national tide and a political landscape that seems increasingly to favor Republicans in these midterms. One is the amount of political capital that Democrats are having to expend on the priority fight of abortion alone, among others. Another is the rash of noxious but effective political ads from the right, attacking Democratic Senate hopefuls for being “soft on crime.”

    Altogether, even though the most meaningful fights for the future of America’s criminal legal system continue to be local district attorney races, it’s easy to see why decarceration proponents will be in a defensive posture in these elections.

    Perhaps the most hopeful race for reformers is in Polk County, Iowa. There, Kimberly Graham, a progressive candidate who has just been endorsed by John Legend, seems to be the favorite to win in this reliably blue county. She has promised to limit cash bail, establish a conviction integrity unit, and end the “trial penalty,” whereby prosecutors threaten harsher outcomes for those who don’t plead guilty. (In contrast, Republican candidate Allan Richards has said, “Law and order will be paramount. Zero tolerance for acts that violate the rule of law.”)

    While the county has 500,000 people, rather than the millions of some larger jurisdictions, it is Iowa’s largest, and a victory there may signal the ongoing viability of less draconian justice policies in the country’s heartland.

    Elsewhere, Mary Moriarty, the former Hennepin County (Minneapolis) public defender fired for what some said was a commitment to racial justice and others said was a lack of professionalism, has been running in that jurisdiction as a pro-reform candidate. Moriarty is arguing for more police accountability, while her opponent Martha Holton Dimick—a Black former judge with ties to the group that paid the legal bills of George Floyd’s killer—is defending the status quo. Neither has incumbency status, as current Hennepin County Attorney Michael O. Freeman is retiring. Moriarty obtained twice the share of votes that Holton Dimick did in this summer’s nonpartisan primary, so it is likely she will win this time, too.

    But other parts of the election season are depressing. In many places around the country, simply saying one will use prosecutorial discretion when weighing whether to prosecute abortion in criminalization states is now enough to be considered a reformer. In other major races, namely Maricopa County (Phoenix), Arizona, the “reform” candidate is marred by prosecutorial overzealousness in prior jobs, raising questions of whether someone with that kind of personality can get the job done.

    The carceral lobby may be able to celebrate more victories on election night.

    Elsewhere, in Alameda County, California and Plymouth County, Massachusetts, Pamela Price and Rahsaan Hall, both Black civil rights lawyers, are running to become DAs. In many ways, they have excellent visions on how the criminal legal system must change. But Price is wading into deeply controversial territory—less carceral public safety approaches to violence against women—at a time when reform needs wins to survive. And Hall, a left-leaning Democrat, is running in a county where the long-term DA, with an incumbency advantage, is a white Republican man.

    It is hard to imagine either winning. Even if they do, the opposition is bound to be so brutal—as many progressive prosecutors have found before them—that they may wonder why they bothered.

    The carceral lobby may be able to celebrate more victories on election night.

    In King County (Seattle), Washington, early reform prosecutor Dan Satterberg is retiring. Satterberg has been flawed on some issues, like sex work, but he also embraced bold policy initiatives such as safe consumption sites. He stands to be replaced by either his potentially less bold chief of staff, Leesa Manion, or Jim Ferrell, a conservative local mayor who wants to end some of Satterberg’s diversion programs.

    Since San Francisco’s once-progressive politics have been hollowed out by venture capital and tech-bro overlords, it is not too surprising that polling in the DA race there suggests that interim DA Brooke Jenkins will easily sail to victory in her first electoral contest. Jenkins has ushered in a whole swath of policies that cause harm to people who use drugs without helping them. Despite endorsements from the local Democratic Party, firebrand criminal defense lawyer and major Jenkins critic John Hamasaki appears unlikely to win this year.

    Perhaps the strongest hope for reform now will be changing hyperconservative DA seats to moderate seats, rather than turning liberal DA administrations into progressive ones.


     

    Photograph by kgroovy via Flickr/Creative Commons 2.0

    • 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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