Behind the Right’s War on Prosecutors

Reform-minded prosecutors across the country have faced efforts to remove them from office or limit their powers.

Behind the Right’s War on Prosecutors

Reform-minded prosecutors across the country have faced efforts to remove them from office or limit their powers.

In August 2022, Florida Gov. Ron DeSantis announced that he was suspending Andrew Warren, the state attorney in Hillsborough County. In his speech, DeSantis decried reform efforts led by Warren and other prosecutors, such as initiatives to divert people from jail for low-level offenses and hold police accountable for misconduct. DeSantis claimed that the results of such efforts had been catastrophic.

“I can tell you, the states and the localities that have allowed this to happen, they are ruing the day,” he said, speaking at the Hillsborough County Sheriff’s Office in Tampa.

Two months earlier, voters in San Francisco had recalled District Attorney Chesa Boudin, one of the highest-profile pro-reform prosecutors in the country. DeSantis said he would not allow the “pathogen” of prosecutors “ignoring the law” to spread in Florida. A year later, Warren is fighting for his job in a federal appeals court. In a separate case, the Florida Supreme Court on June 22 ruled against reinstating Warren.

Warren and Boudin aren’t the only reform-minded prosecutors who have recently found themselves out of a job. In the past year, at least two other district attorneys aligned with the movement were impeached or resigned because of political pressure. Since 2017, at least seven others have been targeted for recall, partially stripped of their powers, or investigated.

A far greater number have been targeted by state legislatures. Between 2019 and 2022, lawmakers in 16 states introduced bills to curtail prosecutors’ powers, according to a report by the Local Solutions Support Center and the Public Rights Project. In four of those states, the bills passed into law. And in 2023 the pace has picked up, with at least four more states passing similar laws.

Jorge Camacho, a clinical lecturer at Yale Law School and a co-author of the report, argues that the opposition to progressive prosecutors is tied to a larger anti-democratic movement.

“It really does seek to subvert the will of not just the policymakers and the office holders themselves, but I think more importantly the will of the people and the voters who put them in office,” he said in an interview with The Appeal. “And that, to me, is the biggest harm that arrives from this whole effort.”

Prosecutors have long been among the most influential actors in the criminal-legal system, afforded broad discretion over choosing which cases to pursue and what types of crimes to prioritize. Many prosecutors use this power to further punitive agendas. They request high bail to prevent pretrial release. They oppose release during parole hearings. They stack charges and sentence enhancements to ensure that defendants spend as much time as possible in prison. According to a forthcoming law journal article by the Fordham law professor John Pfaff, these practices helped fuel the rise of mass incarceration even as crime rates began to fall in the 1990s and 2000s.

Over the past decade, however, jurisdictions across the country have elected prosecutors who have pledged to use their power to reduce incarceration and improve the fairness of the criminal-legal system. In 2016, Kim Foxx was elected state’s attorney for Cook County, which includes Chicago. She ran on a platform of increasing police accountability and diverting people from jail for low-level drug offenses. Philadelphia District Attorney Larry Krasner, who was elected in 2017, has become one of the faces of the progressive prosecutor movement. He promised to end cash bail for some misdemeanors and nonviolent offenses and to seek more lenient sentences in certain cases.

More recently, Warren and other prosecutors have used their discretionary power to resist laws they consider illegal or unjust. In 2021, for example, Warren and more than 70 other law enforcement officials signed a letter vowing not to enforce anti-transgender legislation. On June 24, 2022, the same day the Supreme Court voted to overturn Roe v. Wade, in the Dobbs v. Jackson Women’s Health decision, Warren signed a similar letter alongside more than 80 other prosecutors indicating that he would not seek charges in abortion cases. 

From the very start, reform efforts by prosecutors encountered backlash. In Florida, former Gov. Rick Scott removed Aramis Ayala, the state attorney for Orange and Osceola counties—and the first Black state attorney in Florida’s history—from 22 first-degree murder cases after Ayala announced in 2017 that her office would never seek the death penalty. St. Louis prosecutor Kim Gardner, the city’s first Black circuit attorney, filed a federal civil rights lawsuit in 2020 claiming that the city and police union had engaged in a racist effort to block her agenda. Gardner continued to face opposition from the state legislature and attorney general until she stepped down in May.

In 2019, at a New Orleans conference for the Grand Lodge Fraternal Order of Police, then-U.S. Attorney General William Barr issued a national call to action against progressive prosecutors, saying they “spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.” After leaving office, Barr joined the advisory board of a political action committee that seeks “to stop progressive prosecutors and enforce our law” by funding the campaigns of their opponents. Since 2021, the group has raised nearly $3 million, according to Federal Election Commission reports.

During the past year, conservative lawmakers’ war on progressive prosecutors has intensified as right-wing advocacy groups have come to see these prosecutors as a threat to their agenda. DeSantis’s executive order removing Warren from office cited Warren’s pledges to not enforce anti-transgender and anti-abortion laws as the primary reason for his suspension. “Warren thinks he has authority to defy the Florida Legislature and nullify in his jurisdiction criminal laws with which he disagrees,” the order stated.

The week before the Dobbs decision, the National Right to Life Committee released a memo laying out model laws for a post-Roe America. The group pointed to pledges from district attorneys not to prosecute people for violating abortion restrictions as proof that “radical Democrat prosecutors” were strategizing to refuse to enforce abortion laws in the event Roe v. Wade was overturned. To ensure that abortion restrictions could be successfully imposed, the organization advised states to pass laws allowing attorneys general to prosecute abortion-related violations if local district attorneys refused. 

Lawmakers in states like Texas listened. On June 6, Gov. Greg Abbott signed House Bill 17 into law, calling stricter oversight of “rogue” prosecutors one of his legislative priorities. The bill allows courts to remove district attorneys if they choose not to prosecute certain crimes. It was one of more than 30 bills introduced in Texas this session that aimed to check the powers of local district attorneys.

“[Prosecutors] have always had to allocate their limited resources in ways that best align with public safety and how their community’s vision for public safety should be implemented,” said Miriam Krinsky, executive director of the nonprofit Fair and Just Prosecution, which penned the letters prosecutors signed about resisting anti-transgender and anti-abortion laws. “No one had a problem with that when prosecutors for many years were ramping up tough-on-crime approaches.”

Ironically, many of the recent measures cracking down on prosecutorial power resemble earlier proposals by reform groups that sought to increase accountability for prosecutorial misconduct. After the 2020 murder of Ahmaud Arbery, who was black, by three white men in Brunswick, Georgia, the local district attorney initially ruled the killing a “justifiable homicide.” Arbery’s murderers, who attacked him while he was going for a run, weren’t arrested for more than two months.

In response to these events, Georgia Democrats introduced legislation that year that would have assembled an oversight commission with the ability to discipline and even remove prosecutors from office. It proposed the creation of a ten-member panel for investigating misconduct allegations that would have included citizen members. The measure died without much movement in the halls of the Capitol.

Just three years later, however, Georgia lawmakers seemingly had a change of heart. Senate Bill 92, which passed earlier this year, creates an oversight commission with the power to remove district attorneys who fail to enforce laws. Gov. Brian Kemp said at the bill’s signing that it will protect police officers from criminals. “I won’t stand idly by as they’re met with resistance from rogue or incompetent prosecutors who refuse to uphold the law,” he declared. Four district attorneys have sued to block the Prosecuting Attorneys Qualifications Commission created by the law, which took effect in July.

This time, pro-reform organizations like the Southern Center for Human Rights spoke out against the legislation.

“We in no way, shape, or form are saying in our opposition [to SB 92] that there is not a need for oversight,” James “Major” Woodall, a public policy associate at the Southern Center for Human Rights, told The Appeal. “In fact, we think what’s happening in the name of the state is quite egregious, and there needs to be additional eyes set on the misfeasance and malfeasance that is taking place while these individuals are in office.”

Woodall said the recently signed measure is an attempt to attack political opponents, noting that it doesn’t include oversight of the attorney general’s office, which his organization criticized in the wake of Arbery’s murder. He also underscored a trend in recent years that could have influenced the push toward oversight: people of color winning prosecutorial positions in Georgia. 

“In 2020, we went from having five district attorneys that were minorities to 14 that were minorities,” Fulton County District Attorney Fani Willis said in her testimony against SB 92 in February. 

Woodall said the bill could cause district attorneys to feel they have to press charges in more cases or face the state commission’s wrath. “It’s going to exacerbate the criminal-legal enterprise in which we see mass incarceration disproportionately impact Black people.”

Carissa Byrne Hessick, a law professor at the University of North Carolina and the director of the Prosecutors and Politics Project, told The Appeal that she agrees with this analysis. “I have little doubt that some of these laws are affecting prosecutors,” she said in an interview. 

Hessick recalled that in a recent study she helped conduct, one candidate for a prosecutorial seat in Tennessee was hesitant to give her position on enforcement of cannabis laws. That’s because lawmakers in the state passed a bill in 2021 that allows the courts to appoint temporary district attorneys if a DA refuses to charge certain crimes. The law was aimed at Nashville District Attorney Glenn Funk, who had vowed not to prosecute people caught with small amounts of cannabis or businesses that broke a law requiring them to post signage letting customers know that transgender people might use the bathrooms in the facility.

This chilling effect has come to Florida as well. Monique H. Worrell, the state attorney for Orange and Osceola counties, who was elected on promises of criminal justice reforms, recently announced that she would seek the death penalty in a murder case, despite her opposition to it. “While I am unequivocally opposed to the death penalty personally, I have stated on numerous occasions, in my role as state attorney, I am obligated to follow the law,” she said in a press release on May 12. Worrell faced intense scrutiny over the case from DeSantis and from former Florida governor and current U.S. Senator Rick Scott. 

Despite the rhetoric of opponents to reform, there’s little evidence to support claims that progressive prosecutors have made the country more dangerous. One study that looked at crime in 65 major cities during the five years before the pandemic found that in 24 of the cities homicides decreased. In these cities the rate of decrease was nearly the same under both progressive and more traditional prosecutors. And efforts to reform the criminal-legal system from the prosecutor’s office continue to be successful at the ballot box, with reform-minded candidates often beating more traditional incumbents. In the Democratic primary in Allegheny County, Pennsylvania, in May, for instance, progressive Matt Dugan beat out the sitting district attorney, Stephen Zappala, Jr. In June, three progressive district attorneys in Virginia who were once the targets of recall efforts won their primaries.

It’s important to note that most of the prosecutors elected on reform or progressive platforms work in districts with large Black or Latino populations. (And, in some cases, they are the first people of color elected as prosecutors in their county or even their state.) Critics of reform claim that these communities are the ones most likely to be harmed by policies that deemphasize incarceration. However, in many jurisdictions, communities of color have voted for pro-reform candidates at a higher rate than white voters have.

“That’s telling,” Krinsky with Fair and Just Prosecution told The Appeal, “that those who are in the most impacted communities have been most willing to elect and want to embrace leaders that are trying to do things differently and not resort back to the presumption that we can incarcerate our way out of these issues.”

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