When it comes to criminal justice reform, no national mandate will emerge from next week’s local elections across the country. We won’t be able to say, Wednesday morning, that America has decisively chosen to continue its push to make its justice systems more just. But a number of elections will have a profound impact nonetheless on the lives of millions of Americans. And the truth is, and always has been, that history’s march toward justice reform has always come in fits and starts.
There are approximately 500 races for local sheriffs and prosecutors across the country this year, according to the Appeal, and the vast majority of them will be decided next week. There are also statewide contests worth following. The restoration of voting rights for hundreds of thousands of Kentuckians with criminal records has become an issue in that state’s gubernatorial election. And in New York and Pennsylvania, key district attorney races will serve as referenda on how local law enforcement is dealing with the nation’s fentanyl and opioid crisis.
Those local DA races in the northeast also may tell us in a broader sense whether voters across the country still feel the same spirit of justice reform they’ve felt, more or less, over the past five years. During that same period, as the scope of the drug crisis has become tragically clear, more prosecutors have become more aggressive in pursuing homicide charges against drug dealers in cases of drug overdoses. That this is a throwback tactic from the failed Reagan-era “war on drugs,” and that the tough-on-crime tactic makes the opioid epidemic worse, makes it no less popular with some voters.
There is other evidence that a “pushback” already has come to criminal justice. Some local judges have opposed the reforms implemented by earnest prosecutors voted into office over the past few years. In some jurisdictions, police union officials have pushed back against reformist prosecutors’ efforts to try to hold bad cops more accountable for their misconduct. In Florida, most famously, a prosecutor who announced she would not seek the death penalty was removed from all capital cases by the governor and his cohorts on the state’s supreme court.
If you are an optimist, you could say that all this proves is that the reform movement is gaining more slowly in some jurisdictions than in others. If you are a pessimist, you could say that the high tide of reform has come and gone. And if you are a realist, you could say that some well-meant and reasonable reforms already have been scaled back or scrapped as a result of the effects of the drug epidemic, an uptick in murder rates in some American cities, and relentless “American carnage” propaganda by the White House and Justice Department.
I don’t believe those weighty questions will be resolved with any great clarity next week. But that doesn’t mean there aren’t a few specific races worth watching. I want to see whether Ralph Abraham, a Republican, prevails in his bid to become governor of Louisiana, a state with a perennial and deadly problem of mass incarceration. Abraham recently warned that the state’s new bipartisan justice reform legislation, which finally begins to address the state’s problem, has “opened the gates” to crime.
Meanwhile, voters in San Francisco will have the chance to choose new blood to lead that city’s prosecutors’ office. Each of the four challengers has tried during a short campaign to claim a reformist mantle. One has pledged independent review of police shootings. Another says it’s time to eliminate the city’s money bail system. A third wants to convert a juvenile detention facility into a 150-bed mental health center. The fourth has emphasized the racial disparities and discrimination at the heart of the city’s justice system.
San Francisco’s closely-watched race for district attorney was made possible because the incumbent, George Gascon, resigned as top prosecutor there to move to Los Angeles to run for district attorney there next fall. Voters supporting criminal justice reform measures will face a stark choice to run the country’s largest DA’s office. Incumbent Jackie Lacey, whose positions on a number of measures has disappointed reformers, will try to fight off Gascon, a former Phoenix police chief who still carries some reformist cred despite criticism from activists who say he should have prosecuted more cops.
These races are unfolding in the shadow of the most significant federal justice reform legislation in years. It is indisputable that the First Step Act has made a profound difference in the lives of thousands of federal prisoners, and not just the ones already released by the Bureau of Prison. It is also true, however, that the Justice Department has failed or refused to implement some of the measures required by the First Step Act itself in a timely manner. Or chosen to oppose sentence reductions for worthy candidates.
On Friday, President Trump made a controversial visit to a historically Black college to accept an award as, of all things, a “justice reformer.” Talking about a landmark law enacted last December, he said, “We call it the First Step Act. I sort of liked the idea of just calling it ‘Criminal Justice Reform.’ But ‘First Step’ is good because that allows a second step and a third step. And that’s okay because we can go there, too.”
It would be funny if it weren’t so sad. There is little reason to think that Congress or the White House is going to take additional steps to enact more federal justice reform between now and next November. There’s instead an impeachment inquiry, I hear.
The views expressed are the author’s own and not necessarily those of the Brennan Center.