In Seeking Rural Reform Prosecutors to “Uplift,” Don’t Set the Bar Too Low

    Saying the criminal-legal system is a system like saying a forest is a tree. There are over 2,000 local criminal justice systems with their own prosecutors, judges and courts. These profoundly local systems can differ like night and day, at least when it comes to the severity, and the fairness, of punishment.

    When Derek Chauvin, the former Minneapolis police officer who murdered George Floyd, was sentenced to 22.5 years in prison, online comments like “Black people have gotten longer sentences for drugs than this man did for murder. Let that sink in” were factually true.

    But despite the magnitude of Chauvin’s crime and his lack of remorse, he did not get unique treatment; he was sentenced according to the general sentencing norms of his state.

    That itself is abnormal; the only US police officer who got life for a similar crime between 2005 and 2015 was Marcus Eberhardt, a Black officer who tasered a handcuffed suspect to death. That happened in Georgia, a tough-on-crime state where life sentences are so common they are almost casual.

    Likewise, people of any race getting more than 22.5 years in prison for drugs is quite uncommon in the vast majority of the country. A recent report from the Bureau of Justice Statistics pegged average prison sentences in state court at “17 months for drug trafficking, and 10 months for drug possession.” Cases of Black people getting life sentences (or close to it) for drug convictions are almost invariably in the Deep South, including Mississippi, Alabama and, again, Georgia.

    Since what constitutes “justice” is so variable, it is crucial for national criminal justice reform organizations to sensitively vet local criminal justice leaders before placing them on pedestals.

    Minnesota, meanwhile, is one of the least prison-reliant states, prefering to use very long sentences of probation and community supervision instead. (Most states cap probation sentences at between 2 to 10 years.) That goes for even violent crimes that rightly evoke fear and anger—like that of a man who beat and raped a 17-year-old girl in 2016, and received a suspended three-year prison sentence and 15 years’ probation in Ramsey County, which includes the city of St. Paul.

    Since what constitutes “justice” in this country is so variable, it is crucial for national criminal justice reform organizations to sensitively vet local criminal justice leaders before placing them on pedestals—even if the results risk sacrificing geographic diversity.

    The Institute of Innovation of Prosecution, a John Jay College initiative created in 2015 with $3 million from retiring Manhattan District Attorney Cy Vance’s civil asset forfeiture fund, is one such national organization. It states its mission as “criminal justice that promotes community-centered standards of safety, fairness and dignity.”

    IIP is rightly sensitive to narratives that decarceration is really only happening in the biggest, bluest cities. Mass incarceration is a worsening problem in the suburbs and rural areas, too. That’s apparently why it launched a “Beyond Big Cities” program with financial banking from Microsoft’s Criminal Justice Reform Initiative. The new program’s landing page states that it is “imperative that we include and uplift prosecutors in smaller jurisdictions who may lack the resources of big city offices but are not lacking in their commitment to justice and equity.”

    That is a laudable goal, and there are already some elected prosecutors in less populous areas who see justice in more refined terms than “lock ‘em up.”

    But IIP’s member list for the Beyond Big Cities initiative includes prosecutors who simply don’t seem to get it. And that unfortunately undermines the program’s integrity and risks legitimizing practices that can only be described as abuse.

    For example, District Attorney James Stewart of Caddo Parish (Shreveport), Louisiana, who appears on the IIP list, has worked to jail parents for the crimes of their children. Stewart also continued paying Hugo Holland, a former staffer who got fired in 2012 for “doctor[ing] documents as part of a scheme to procure a cache of M-16 rifles from the federal government’s military-surplus program,” after taking office. Holland, today a roving prosecutor-for-hire who lobbies to keep executions going and cut public defenders’ aching budgets, has a well-documented record of cheating in capital cases in order to obtain death sentences.

    Then there’s Prosecuting Attorney Jon Tunheim of Thurston County (Olympia), Washington, who in 2015 refused to charge a white police officer who shot two young Black men, paralyzing one of them from the waist down. Tunheim claimed the officer acted in “good faith” and “without malice,” despite logical inconsistencies in his statements made after the shooting and during the trial. The prison admissions rate in Thurston County under Tunheim has been consistently above the state’s average.

    “If I was a reform-minded rural prosecutor, I would be reticent to take seriously the work of a project that has decided to associate with disrespected criminal justice actors.”

    Another prosecutor on the list is Cumberland County (Portland), Maine, District Attorney Jonathan Sahrbeck, who said in 2018: “Narcan saves a life, but it doesn’t exactly help somebody.” More recently, in an attempt to defeat a bill to treat drug use as a public health issue instead of a criminal justice one in Maine, Sahrbeck claimed that drug arrests save lives.

    In response to Filter’s questions about these inclusions, IIP Deputy Director Alissa Heydari emailed: “The common denominator for prosecutors who are part of IIP’s Beyond Big Cities Initiative is that every member is committed to exploring alternatives to incarceration and ways to reduce racial disparities in the criminal system. These prosecutors are Democrats, Independents and Republicans from all over the country, including jurisdictions as small as 5,000 people. They want the system to be better and we believe this bipartisan and inclusive program is the best way to find common ground for reforms that can spread nationally.”

    On the other hand, Jennifer Oliva, a law professor at Seton Hall University in Newark, New Jersey, told Filter that “the IIP’s inclusion of prosecutors who have a history of misconduct and integrity issues undermines the project’s laudable criminal justice reform objectives and may work to undermine its effort to positively change prosecutorial culture.”

    “If I was a reform-minded rural prosecutor,” Oliva continued, “I would be reticent to take seriously the work of a project that has decided to associate with disrespected criminal justice actors.”

    The Beyond Big Cities dilemma resembles those faced by many advocates—the facility of including questionable leaders in the conversation in order to pursue internal change and practical results, versus the responsibility to ensure that such involvement doesn’t represent mere lip service or entail damaging concessions.

    For Colleen McCarty, the deputy director of Oklahomans for Justice Reform, the tension between IIP’s rhetoric and the company it keeps reminded her of what she saw in the last legislative session. Lawmakers created a restorative justice pilot program, but put the highly regressive Oklahoma District Attorney’s Council in charge.

    “In reality, the restorative justice pilot simply expands deferred prosecutions, requires defendants to admit guilt, and would only be available to a select few first-time felony offenders as defined by the prosecutors running the programs,” McCarty told Filter. “As ‘criminal justice reform’ becomes popular with voters, we have to be ever more vigilant in defining truly ‘reform’ practices that reduce incarceration, increase diversion, safely decarcerate our communities, and embrace true rehabilitation.”

    “We should encourage learning and growth from law enforcement and not trap them into their former lives and practices,” McCarty added. “In order to trust their intentions, I think we need to see a strong course correction and statements from them identifying the harm and the need to do better.”



    Photograph by North Charleston via Flickr/Creative Commons 2.0

    • 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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