Progressive Prosecutors, Police Accountability, And Decarceration
Above Photo: Protesters in DC demand the imprisonment of police officer Darren Wilson following the killing of Michael Brown, in November 2014. Brown’s father continues to push St. Louis’ new prosecutor for the case to be re-opened. Photo: Stephen Melkisethian, used under a Creative Commons license.
In 2014, St. Louis County experienced periods of heightened social protests following the highly publicized shooting of Michael Brown by then-police officer Darren Wilson. According to the New York Times, Wilson noticed Brown fit the description of a suspect who had stolen cigarillos and pulled up near Brown in his police SUV.
A struggle ensued and Wilson fired his pistol at close range. Brown moved away from Wilson initially but turned towards him after a short pursuit. Forensic evidence confirmed Brown was facing Wilson when Wilson opened fire. This police killing prompted mass protests in Ferguson, in part driven by outrage at the four hours Brown’s body remained on the street.
Months after the shooting, the lack of an indictment by Prosecuting Attorney Robert McCulloch drew even more intense protests. McCulloch’s decision not to allow Wilson to go before a trial jury drew criticism that he handled witnesses for the prosecution combatively and police officers gently.
McCulloch won his primary four days before the Michael Brown shooting, so community organizers had to wait a full term to unseat him. “Unfortunately, the election came before Ferguson, or else I think the outcome would have been very different. But we actually had time to work another three years to build up our forces and have an organized campaign that could win,” said Jamala Rogers, executive director of the Organization for Black Struggle in St Louis.
“After Ferguson uprising, we definitely were looking for who is a candidate who could replace Bob McCulloch,” Rogers told Toward Freedom. The challenger that unseated McCulloch was Wesley Bell. Today, Bell is one of a growing number of progressive District Attorneys (called “Prosecuting Attorneys” in Missouri) challenging incumbents or contesting open seats to advance criminal justice reforms through actions that fall under a DA’s discretion.
Since 2016, voters across the country have elected a growing number of progressive District Attorneys on platforms intended to reduce racial inequities, combat mass incarceration and advocate for criminal justice reform, such as the elimination of cash bail and the death penalty.
The conditions a District Attorney needs to meet to define themselves as “progressive” may vary, but co-director of the Stanford Criminal Justice Center and law professor David Alan Sklansky offers some key guidelines: be data-oriented, investigate police shootings independently, reduce case delays and more.
According to research carried out for this story, 10 percent or more of the United States population lives in a county served by a District Attorney that could be considered progressive.
These progressive reformers primarily work to reduce incarceration rates, which have increased despite the fact that crime rates have been falling since 1990. But even with the surge of progressive prosecutors, the imprisonment rate of sentenced prisoners is still about 150 percent of the rate in 1990. Another part of the incarceration rate rise stems from an increase in pretrial detention since the mid-90s.
Rachael Rollins (Suffolk County, MA) and Bell (St. Louis County, MO), are two of the country’s most well known progressive prosecutors, who have served a little over a year in office, as is Larry Krasner (Philadelphia, PA) who has been in office for just over two years. Rollins and Krasner won in crowded primary fields (Rollins had four other candidates in her race; Krasner had six) to replace incumbents who stepped down. Bell, as mentioned earlier, unseated incumbent Robert McCulloch.
Both Bell and Krasner previously served as public defenders. Bell has also served as a lawyer and a prosecutor. In 2015, Bell won a seat as one of a record four African-American candidates for Ferguson city council, only three Black candidates had previously run in that election.
Krasner was known for his litigation against police misconduct and his pro bono defense of Occupy and Black Lives Matter protesters, as a criminal defense attorney.
Before becoming the first woman of color to serve as a DA in Massachusetts, Rachael Rollins was an attorney for the National Labor Relations Board, part of a private practice and was an Assistant United States Attorney in Massachusetts. In the early 2010s, she held multiple leadership positions in state government.
To start their tenure, Bell, Krasner and Rollins all published policy memos detailing criminal offenses that their offices would no longer formally charge, most of them tied to poverty, homelessness and mental health issues.
Often, the “do not charge” lists include exceptions for severity and allow a line prosecutor to pursue an indictment if a supervisor reviews the case and agrees charges should be filed. Rollins had the most comprehensive list, with 15 charges to be declined, in her initial memo. The ACLU found that her predecessor had been dropping these low-level misdemeanors at rates of about 60 percent.
Tough on crime, or punishing the poor?
Critics, including judges, police unions, prosecutors from other counties, former prosecutors, state officials and some victims, complain progressive prosecutors aren’t sufficiently “tough on crime.” But the reality is progressive prosecutors often want to reallocate limited resources for more serious offenses.
“Tough on crime is not a policy. It’s semantics. I would challenge anyone to tell me what is the ‘tough on crime’ policy,” avowed Bell. Rahsaan Hall, Director of Racial Justice for the ACLU of Massachusetts, echoed Bell. “We have to push back on the narrative that putting people in cages, is going to keep us safe,” he told Toward Freedom.
If “tough on crime” is taken to mean the duty to punish an individual to the fullest extent allowable by law, paradoxically, more crime will result.
“A three day stay in jail increases the likelihood by 40 percent that an individual will commit a different offense and come back. A five day stay increases the likelihood by 50 percent,” said Bell. “By not incarcerating those low-level nonviolent offenders not only do we save and better use our resources we also help people. So it’s a win-win.”
For Bell, justice does not mean imprisonment. In his first year as St. Louis County District Attorney, the prison population of low-level nonviolent offenders has dropped by 30 percent. In his 2019 policy memo, for example, Bell’s office states it will not seek imprisonment of any parent for failure to pay child support. Incarceration often means loss of employment and results in further difficulty finding a new job upon release.
The previous policy of imprisoning parents who do not pay child support had a net negative impact on children. “People aren’t paying child support by and large because they don’t want to support their child, but because they can’t,” explained Sara Baker, Policy Director of the ACLU of Missouri.
But if “tough on crime” is understood as being about reducing crime and pursuing justice, then progressive policies do advance a “tough on crime” approach. While early research has shown crime rates do not correlate with DA charging and sentencing decisions, DAs can reduce recidivism by focusing on diversion programs that tackle the root cause of certain crimes.
By not filing charges for crimes tied to poverty, mental health, homelessness or limited access to resources, a DA can focus on investigating serious crimes. “The very communities where we were often focusing on [the fifteen offenses on the decline to charge list] are the same communities that have the unsolved homicides and are the same communities that have nonfatal shootings that only have a 20 percent solve rate and have seen an uptick,” explained Suffolk County DA Rollins in a phone interview with Toward Freedom.
Pushing back against cash bail
Bell, Krasner, Rollins and other progressive prosecutors are also pushing to reframe what justice means by refusing to pursue cash bail for specific offenses.
“The only purpose of bail is to make sure that people come back to court for the next date. It’s not to keep dangerous people off the street,” explained ACLU’s Hall, who was a prosecutor in Suffolk County for eight years.
“One, prosecutors don’t want to have the headline come out that someone they did not have detained ended up committing another crime. Which, no one can predict when that will actually happen,” he said. “And then two, if people are held in custody, they are more likely to plead guilty and therefore alleviate the caseload and the docket of the court.”
In Massachusetts, a separate statute allows for a “dangerousness hearing” to decide the conditions of one’s release or if one should even be released, separate from bail. A trial should establish punitive measures, but the inability to pay bail should not be punitive.
In Philadelphia, bail’s purpose went beyond assurance someone would return for trial. Until the end of 2018, cash bail also contributed to Philadelphia’s municipal budget. “What they used to do was keep 30 percent of whatever the bail was, no matter what the outcome of the case was,” stated Reuben Jones, the Philadelphia campaign coordinator for JustLeadershipUSA.
According to the Philadelphia DAO data website, The average number of cases charged in the four years before Krasner took office was 2,493 per year. In Krasner’s first two years, that average dropped to 2,395. That’s only a slight reduction in people who have to go to a bail hearing; meanwhile, the rate of people who had to pay bail has stayed stable at around 50% for the four years before and the two years after Krasner took office. Although, that may just mean the assistant DAs input has been disregarded. The data website acknowledges this limitation, stating, “We cannot report on how our bail requests match or differ from bail assigned by a bail magistrate.”
According to Jones, bail continues to disproportionately impacted lower-income people and people of color. “We’re talking about poor people where sometimes, grandmothers are putting up their houses or families are hosting fish fries or taking up donations to post bail for their loved one,” added Jones.
Change can often be slow, and the Philadelphia Bail Fund continues to level criticism over Krasner’s current policy implementation. After Krasner’s election, JustLeadershipUSA and the Philadelphia Bail Fund called for him to go further by increasing the list of charges for which his assistant DAs won’t request bail and implementing the policies he promised to pursue.
In St. Louis County, for example, Bell identified specific felony classes where his staff must seek approval to request a cash bond, and cash bonds are no longer sought for misdemeanors. Jones, from JustLeadershipUSA, is pushing to ensure Krasner’s policies move in a similar direction.
Data and public integrity
Data isn’t simply informing policy directions; it’s also a tool that can be used to hold DAs accountable for their campaign promises and job performance. Krasner leads the charge in this area with an impressive Public Data Dashboard. “This site uses data to replace fear-driven fiction with fact. It replaces doubt with data to tell a true story that has not been told about crime, about public safety, about our people and about our city,” said Krasner in a video promoting the site.
Other progressive DAs are following Krasner’s model: Bell recently hired a data analyst, and in Massachusetts, although independent of Rollins’ office, a partnership across multiple organizations created Court Watch MA to assess Rollins’ first 100 days in office and to increase transparency.
The challenge for DAs like Rollins is staying data-driven in response to a public perception that demands seismic shifts in the face of one failure. Historically, one publicized failure can spur elected officials to overreact and impose new crime policies despite a diversion, parole, or rehabilitation program being successful overall.
Complaints from victims of crimes and/or their families are a common source of criticism which, when amplified in the media, add opposition to new policy directions. Depictions of a victim’s family advocating for lighter sentences occur less frequently, which is, in part, why Brandt Jean’s victim impact statement during the trial of the murderer of his brother, Botham Jean, went viral.
Another popular policy among progressive DAs is establishing integrity units. The most comprehensive integrity unit appears to be in Suffolk County under Rollins.
“We have conviction integrity. We have sentencing integrity. We have case integrity. And we have the law enforcement database,” explained Rollins. What she means by integrity is that her office evaluates if an innocent person is currently incarcerated, if a sentence was unfair, if a case was handled poorly and should result in additional training, of if certain law enforcement officers lack credibility. All of that information is included in automatic discovery for defense attorneys.
Krasner’s Conviction Integrity Unit includes conviction and sentencing integrity as well. His office also maintains a separate police misconduct database. In St. Louis, Bell is still working to establish his integrity unit, which required repurposing staff positions to find room in his budget. He said he expects his unit to be similar to that of Rollins, with whom his office has been in conversation.
These integrity units are vital because legislatures and governors can be uncooperative on the issue of exoneration. “A cop gets killed and all of a sudden, we’ve got a bunch of laws to put the clamps on parole,” said Hall of the ACLU of Massachusetts. “The minute someone is wrongfully convicted, the legislature doesn’t want to do anything.” Integrity units offer a path to exoneration without involving a state legislature or gubernatorial office.
Even with Krasner’s advances with his conviction integrity unit, including 11 exonerations since 2018, critics say he could be more transparent with information his office holds with regards to files from previous administrations. “There are literally thousands of people impacted by the DA’s Office failure to disclose exculpatory evidence, fabricated testimony, and police corruption,” wrote JustLeadershipUSA’s Jones via email.
Both Krasner and Kimberly Gardner in St. Louis drew media attention for barring some cops from serving as witnesses. Krasner’s “Do Not Call” list includes reasons why and cops get on the list for breaking the law and professional misconduct. Regardless, it is a strong stance, considering how closely their offices work with police officers.
However, most DAs exercise discretion and want to call credible witnesses during a trial. What sets Krasner and Gardner apart is the public nature of their announcements. Bell noted in a phone interview with Toward Freedom that he agrees with the idea, although he has not made a similar public announcement.
Jones, of JustLeadershipUSA in Philadelphia, stated that all the cases in which cops were later deemed to be unsuitable witnesses by Krasner should be reviewed. Not only should DA staff be reassigned to review those old cases, says Jones, but information from these cases should be released to the public so individuals, families and nonprofits, like The Innocence Project, can take part in the review.
Inevitably, DAs have to balance their relationships with the police. If they too cozy with the police they will face criticism, as did Robert McCulloch for being soft on police witnesses during Darren Wilson’s grand jury hearing following the killing of Michael Brown. But efforts to hold police accountable, like Krasner and Gardner’s refusal to hear from certain police witnesses, will likely draw criticism from police unions, Republicans and police officials.
As he walks that thin line, Bell is visiting the 55 departments in St. Louis County to explain the new direction in policies and develop rapport with police departments. “We’ve created a law enforcement advisory committee with about 10-15 police chiefs from across the region where we meet with them consistently to talk about policy,” he explained. Bell also makes an effort for himself or a member of staff to be on the scene for every homicide to support the police investigation.
In Suffolk County, Rollins has established a separate Firearms Discharge Unit to investigate reports of police violence. That unit includes a retired superior court judge, a member of law enforcement from an outside jurisdiction, a community member with personal experience with homicide, and the former head of a homicide unit. Together, this team examines cases of police violence and puts forward a recommendation to Rollins.
Rollins’ law enforcement database tracks trends among police officers, an officer with multiple violations can be identified and flagged. Krasner’s office maintains a Police Misconduct Disclosure Database.
To date, Rollins and Krasner have pursued multiple cases of officer misconduct. “We inherited three officer-involved shootings from previous administrations when I took office that were several years old,” said Rollins in a phone interview with Toward Freedom.
“We indicted one member of law enforcement…[I’m] confident this is the first time in Suffolk County with regards to officers shooting people that we have held them accountable when they didn’t meet their high burden of appropriate behavior that we believe crossed into criminal behavior.”
One police officer was indicted for lying to police officers about an off-duty shooting, a state trooper was indicted for firing a semi-automatic weapon at an ATV operator, and there has not been a press release about an indictment for the third case. Rollins’ Firearm Discharge Unit meets regularly to review officer-involved shootings that have occurred since she took office.
Krasner has also pursued officer-involved shooting cases, making him the first DA in two decades to do so, according to the Philadelphia Inquirer. He has also pursued multiple less severe cases against members of the police department. Unlike their predecessors, Krasner, Bell and Rollins appear to at least have that groundwork and be working to hold police accountable.
Community organizers and others interviewed by Toward Freedom expressed overall satisfaction with their District Attorney’s progress, especially in such an ingrained system. However, there’s always more work to be done.
In addition to calls to further reduce the use of cash bail and to expanding the scope of his conviction integrity unit to review more cases, Krasner continues to face criticism with regard to his policies toward youth. According to Jones, Krasner’s office has not fully eliminated the practice of charging children as adults. “We’d like to see children treated as children in the criminal justice system and not as adults,” he told Toward Freedom.
The ACLU of Missouri is currently preparing to publish data on Bell’s inaugural year. Sara Baker, policy director of the ACLU of Missouri, expressed alarm over an announcement to prosecute citations for fare evasions. But Bell explained that no prosecution has resulted out of an inability to pay a fare and that the announcement was to help establish an increased police presence to help with an uptick in violent crime on public transportation.
One of Bell’s biggest critics is Michael Brown Sr.’s ongoing protest against the lack of investigation into former police officer Darren Wilson’s grand jury hearing, which famously resulted in a decision not to indict him for the killing of Brown’s son. Bell’s office did not comment when pressed on this issue, and Michael Brown Sr. could not be reached for comment.
Rogers, of the Organization for Black Struggle in Missouri, petitioned for more transparency from Bell, especially concerning the progress of the Conviction Integrity Unit, “People need to know how things are going or if there’s some pushing and pulling the community can do as organizers,” said Rogers.
Over in Suffolk County, most of the feedback Rollins has received has been about staff adherence to her policies with regards to requesting cash bail and the content of briefs filed in appeals court. “It’s really hard to look in the mirror every day and say, ‘Was I a part of mass incarceration?’” said Rollins, speaking on the culture shift that needs to occur. Rollins’ 350 person office is a mix of staff she’s inherited and staff she’s hired herself.
“Her office has filed briefs that defends [police practices based on race] or say that those allegations of racism or racial disparities are not relevant,” said Hall. “And for someone who campaigned on having a more racially just DA’s office, that is inconsistent.”
In response, Rollins said she’s established a new procedure to eliminate briefs that contradict her office’s commitment to racial justice: weekly meetings with her chief of appeals to review any appeals with a race-based argument. “And if it’s that level of micromanaging that needs to happen… That is the level of commitment I have to make sure we’re getting this right,” she told Toward Freedom.
Rollins and Bell see interfacing with the community as a part of their role as progressive prosecutors. Of the three, while Krasner does have the largest office, workload and constituency, his office was the only one to deny multiple requests for in-person, phone and email interviews.
Barriers to reform
Prosecutors wield tremendous power in their districts however there has been tremendous pushback to their initiatives. District Attorneys who try to work within the system can find their own staff slowing the implementation of reforms. That resistance justifies explains why Krasner ousted 10 percent of his staff after taking office.
Outside of a DA’s office, judges can accept or reject a prosecutor’s suggestions. In Philadelphia, judges have been blocking deals from Krasner’s office that would make some juvenile lifers immediately available for parole as part of a resentencing requirement from a Supreme Court verdict. In a more isolated case, a judge appointed a special prosecutor when Krasner’s office did not approve the filing of a motion to revoke probation after the accused’s recent arrest.
In Suffolk County, Rollins’ line prosecutors have been met with resistance from judges for enacting policies intended to reduce the case bail. Judges in Suffolk County have not just rejected the prosecutor’s request for no bail, they’ve chided prosecutors for following Rollins’ policy. In one instance, Judge Sally Kelly lectured an attorney about their adherence to the DA’s policy, essentially suggesting the prosecutor should not follow their supervisor’s policy.
“The bar and the judiciary, in general, have been overwhelmingly supportive of what we’re doing” in St. Louis, said Bell. Alternative treatment courts, including Drug, Veteran, DUI, and Mental Health courts have found support among the judiciary, according to Bell.
That’s not to say Missouri has been fully welcoming of Bell’s policies. The state legislature has tried to pass bills to undo his progress, such as House Bill No. 1900, which would allow police to forward cases to the attorney general should a District Attorney refuse to file charges.
“Most of our legislators aren’t concentrated in cities, so some of these reforms probably seem odd to them,” said the ACLU’s Baker. “Or they don’t realize they do have deep support from the constituencies that passed them.”
Other barriers include media coverage of the impact of policies introduced by progressive prosecutors. Contrast coverage of Rollins by the Boston Globe and The Marshall Project’s coverage of Kim Foxx in Cook County. The Globe cherry picked certain cases of 1,000 they reviewed to show specific instances where Rollins’ prosecutors declined to file charges, didn’t request bail or filed a lesser charge than they could have. The Marshall Project’s review contrasts with that approach as it shows, in aggregate, how many charges have been filed or dismissed when compared to Foxx’s predecessor for specific instances.
Individual cases can be illustrative, but they don’t always account for the larger issues at play. How counties chose to invest resources can be similarly distracting from larger trends. “It’s like Whack-A-Mole,” explained Hall, from the ACLU Massachusetts. “We could invest resources in dealing with one offender at a time or invest more resources in addressing societal ills, the structural issues that lead to this type of disorder and violence.”
Over the last 50 years, the US hired Assistant District Attorneys (ADAs) at a level that outpaced the crime rate. “Between 1972 and 1990, as crime went up sharply, we hire about 3,000 more line prosecutors… Between 1990 and 2007, as crime drops and as serious crime drops precipitously, we hire 10,000 more ADAs,” commented Dr. John Pfaff, on the University of Cincinnati’s Criminal Justice Office Hours podcast.
Pfaff’s book Locked In shows that in 1990, when the US crime rate was peaking, there were 8.04 line prosecutors for every 100,000 people. In 2007, when the crime rate had dropped by 35 percent, there were 2.07 more line prosecutors per 100,000 people. And although the arrests per prosecutor dropped by a third, prison admissions per prosecutor stayed stable: in 1990, there were 25 admissions per prosecutor, and in 2007, there were 23.
The speed at which the courts move to exonerate and free the innocent does not match the speed of conviction. Thus, the simplest reform may be to shift more ADAs to integrity units to help review prior convictions and release the innocent from prison and stop hiring more. Bell’s office has begun to do so already, albeit due to budget constraints and not out of a desire to reduce the size of his staff.
“Most of the decarceration is being driven by more urban counties,” says Pfaff. While DAs in urban areas can significantly advance criminal justice reforms due to the percentage of the population, rural counties should not be overlooked in the decarceration movement.
For Rahsaan Hall, the reduction of a District Attorney’s footprint remains at the center of criminal justice reform. “Our perspective for this whole DA’s campaign was about reducing the footprint of the District Attorney’s office, reducing the amount of power they have and ceding it back to the community,” he said. “From an abolitionist perspective, if we are trying to tear down these systems, we don’t want to build up new systems that we have to tear down later.”