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)