Biden Pick of Rachael Rollins for US Attorney of Mass. a Mixed Blessing

    President Joe Biden has announced his intention to appoint Suffolk County (Boston) District Attorney Rachael Rollins as the next US attorney of Massachusetts. If confirmed by the Senate, Rollins would be the first Black woman in that position. She would also be the first DA elected as part of the “progressive prosecutor” movement to become a US attorney, or chief federal prosecutor, in any district.

    Is this a cause for celebration? Maybe, but not so fast.

    In Massachusetts, the governor gets to pick the interim district attorney when the incumbent retires, resigns or passes away. And Governor Charlie Baker, a Republican, has made no secret that he despises the Rollins philosophy of not prosecuting low-level, nonviolent misdemeanors like drug possession, despite the fact that nonpartisan, academic researchers found that it improved public safety in her district.

    Now Gov. Baker will get to lift up a regressive career prosecutor who will almost certainly undo the progress the Rollins administration has worked so hard to achieve. Expect to see the new DA also wipe out the office’s progressive managerial suite, which includes luminaries like Donna Patalano and Bobby Constantino—and then run on that record with a powerful incumbency advantage in next year’s DA race.

    Furthermore, the ability of an individual US attorney to change the justice system is quite limited. As the Massachusetts US attorney’s website explains, that office handles “hundreds of cases each year.” The Suffolk County DA office handles around 35,000 cases per year—a vastly higher volume. The few cases that federal prosecutors handle are, at least in theory, much more serious than the average case in county court, so Rollins can’t exactly start dropping entire categories of cases in her new post to force reform. She may not even want to change the way these serious cases are handled, since her reforms, like those of virtually all reform DAs, have been focused on how to address low-level crime.

    There are positive changes Rollins can make at the federal level, of course. Depending on the smoothness of the transition, she may be able to encourage her line prosecutors to think more about recommending prison sentences that are “no greater than necessary” to protect public safety. She can recommend that her prosecutors think carefully about choosing which charge to levy when multiple charges of varying harshness apply.

    And she can refuse to resist (as former Philadelphia US Attorney Bill McSwain did) local government attempts to authorize the first safe consumption site in the nation—though that’s not going to happen in Boston with an old-guard conservative in her old post.

    Her potential impact on state or national affairs remains to be seen. But her old constituents will suffer. 

    But will she make any changes if she becomes Massachusetts’ US attorney? Reformers should not hold their breath. In her past role as assistant US attorney in the same office, it appeared that Rollins simply fell in line with the existing office culture.

    According to an article by Jamie Folk, a pharmaceutical industry professional who also runs a podcast on the state’s shocking crime lab scandal, only six of Rollins’ 180 cases listed on PACER were criminal cases. All her other cases were civil cases, the bulk of which involved defending the US Department of Homeland Security in deportation cases, claiming the government did not discriminate on race or gender grounds in employment discrimination cases, and fighting to ensure that the government could seize people’s property (and even their homes) for growing cannabis plants.

    Rollins even demanded in court that a man with serious health conditions keep serving his federal prison time for drugs almost 2,000 miles away from his family.

    This is not a reformist record. It is more in line with the many actions President Biden has taken over decades to destroy the lives of people prosecuted in federal court.

    It is easy to see the headlines and cheer for DA Rollins, as well as to think that change is finally coming to the federal justice system. The significance of her declining to prosecute a range of low-level charges has been both practical and symbolic. She is better than her predecessors. Yet supporters of the “progressive prosecutor” movement should avoid placing prosecutors on pedestals—and remember the persuasive power of political expediency.

    The Senate may still block her confirmation, but it isn’t likely. Even the former US Attorney for the Middle District of Pennsylvania David Freed sailed through on an informal voice vote, despite fraternizing with a prominent neo-Nazi leader while the DA of a small county.

    Thus, Rollins will almost certainly move up the politician’s career ladder. Her potential impact on state or national affairs remains to be seen. But her old constituents will suffer. 



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    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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