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Reformist Prosecutors Face Unprecedented Resistance From Within

Turns out it takes more than a prosecutor with an electoral mandate to fix a broken justice system.

June 19, 2019

One of the clearest and most signi­fic­ant trends in crim­inal justice over the past five years or so is the elec­tion success of reform-minded prosec­utors swept into power by voters around the coun­try who are sick of the arbit­rary and capri­cious nature of their local justice systems. But now a counter-trend has emerged: almost all of these earn­est prosec­utors have been stymied in some mean­ing­ful fash­ion by reac­tion­ary other actors within those same justice systems. The lesson? Systemic change is going to be assured only when reform comes to the judi­ciary and to poli­cing and correc­tions systems the way it has to these district attor­ney’s offices.

It’s true that all prosec­utors wield too much power over crim­inal justice systems. Only 2 percent of all federal crim­inal cases now go to trial, accord­ing to new data compiled by the Pew Research Center. That percent­age is about the same at the state or local level as over­worked public defend­ers and over­whelmed defend­ants take plea deals offered in assembly-line fash­ion by prosec­utors who over­charge their cases in the first place to allow them­selves the wiggle room they’ll take on the plea. Often the prosec­utor is, in real­ity, the judge in a case.

But not always. No plea deal is final until it is approved by a judge, which means judges have to buy into whatever reform prosec­utors are trying to achieve by accept­ing lighter sentences for certain crimes. No prosec­utor can last long in office without at least some support from fellow prosec­utors and other exec­ut­ive branch offi­cials (like, say, the state’s governor). And, since every crim­inal case starts with police work, prosec­utors can be crippled by obstruc­tion from police offi­cials or, more likely, from police union offi­cials seek­ing to stoke public outrage about the reforms the district attor­ney is trying to imple­ment.

Take, for example, the case of Larry Krasner, the relat­ively new district attor­ney elec­ted to begin to clean up Phil­adelphi­a’s broken justice system. First he faced oppos­i­tion from within his own office from lower-level prosec­utors who failed or refused to carry out his reforms. He fired some 30 prosec­utors and ended up losing maybe 50 more, all of whom were replaced by attor­neys whose values about justice more closely mirrored those of Krasner. And then? And then the city’s judges, them­selves elec­ted, refused to sign off on the plea deals Krasner’s office began endors­ing because the sentences weren’t harsh enough.  

Aramis Ayala knows how Krasner feels. She is the first Black state attor­ney in 172 years of Flor­ida history and she was elec­ted, in and around Orlando, to help fix that city’s broken justice system. She began by declar­ing that she would never seek the death penalty in a case, even if it were a legal option, because “there is no evid­ence that death sentences actu­ally protect the public.” For that act of sense and sens­ib­il­ity then-Gov. Rick Scott trans­ferred from Ayala’s control two dozen capital cases. She sued the governor, lost at the state’s supreme court, and announced last month that she will not seek re-elec­tion because of it.

Scott, now a U.S. senator, wasn’t the only party within the justice system of Orange-Osceola County to speak out against Ayala. The local police union threw its support earlier this year behind a prosec­utor named Ryan Willi­ams. His claim to fame? He left Ayala’s office and joined the office of the state attor­ney to whom all those capital cases were trans­ferred by Governor Scott. The message from the police could not be more clear: if elec­ted, Willi­ams was going to fight for victims of crime whereas Ayala had not. That such a charge is mani­festly untrue, and a slander to Ayala, makes it no less potent.  

Kim Foxx knows how Ayala feels. In Novem­ber 2016 she won an epic elec­tion for Cook County state’s attor­ney over the perpetu­ally belea­guered and scan­dal-ridden Anita Alvarez. Because she was in Chicago, Foxx imme­di­ately became a national symbol of prosec­utorial reform. And, indeed, one of the first things she did in office was identify wrong­ful convic­tions tain­ted by the coerced inter­rog­a­tions and other unlaw­ful tactics by Chicago police. Dozens were exon­er­ated in this fash­ion by Foxx’s rein­vig­or­ated Convic­tion Integ­rity Unit. Great news, right? Yes, unless you were the police union offi­cials who blas­ted her for it.

Foxx contin­ued to push to exon­er­ate defend­ants, and contin­ued to feel push­back from the police for it. Then came accus­a­tions that she was too leni­ent on Jussie Smol­lett, and now the resist­ance from police has grown more fierce. In April, for example, the head of the police union called for Foxx to step down because her office wasn’t prosec­ut­ing enough cases like shoplift­ing. It was another absurd charge based on Foxx’s decision not to charge shoplift­ing as a felony unless the value of what allegedly was stolen was more than $1,000.

Kimberly Gard­ner knows how Foxx feels. Just last week, the New York Times reminded us of the unpre­ced­en­ted hostil­ity Gard­ner has received as the new chief prosec­utor of St. Louis County, Missouri, a juris­dic­tion which like Phil­adelphia and Chicago is notori­ous for its unjust justice system. She clashed with police union offi­cials and indicted the governor — the sort of conduct one might expect from a prosec­utor trying to shake up the status quo and expose miscon­duct — and now she finds herself the subject of a special prosec­utor’s invest­ig­a­tion and has had her office files seized by the police.

Ayala, Foxx, and Gard­ner are Black women, and there is no way to explain this insti­tu­tional oppos­i­tion to prosec­utorial reform without mention­ing race and gender as factors in the fero­city of the push­back. There also is no way to justify the counter-revolt as some sort of well-meant attempt to ease justice systems into reform. Prosec­utors like Krasner, Foxx, Gard­ner, and Ayala were elec­ted specific­ally to shake up those systems and to alter balances of power that gener­ated racial dispar­it­ies and debt­ors’ pris­ons and that coun­ten­anced police miscon­duct and discrim­in­a­tion.

What their stor­ies tell us, a few years into this grand exper­i­ment, is that voters who want long-last­ing and systemic change have to pay atten­tion not just to elec­tions for district attor­ney but to judi­cial elec­tions as well — and to any local elec­tions involving offi­cials who are empowered to main­tain, or change, poli­cing policies or budgets.

The entrenched power within these justice systems cannot be rooted out by prosec­utors alone. Go figure. We live in an age where prosec­utors wield enorm­ous power over the lives of constitu­ents and prosec­utors who want to do justice find they don’t have as much power as they need.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Image: Asso­ci­ated Press)