On March 8, 2018, brothers Oleg and Sergey Galushkin drove to a Nugget Market in Yolo County, California, where, police said, they shoplifted bottles of vodka, lighters, butane and lighter fuel, a total value of under $200. The two then went to a Safeway and took six bottles of vodka and some frozen meat.
Someone called the police, and the men were arrested and charged with the felony of “conspiracy to commit a misdemeanor,” which made them eligible for time in state prison, even though, under California law, thefts under $950 are all considered misdemeanors, which carry a sentence of less than 12 months. (They ultimately pleaded to misdemeanors.)
In another area case, Karina Chavarria shoplifted about $600 worth of merchandise from a Walmart, including bedding, lamps, laundry detergent, and soap. The store recovered all of the items, but Chavarria was charged with a felony, like the Galushkin brothers. (She ultimately pleaded to a misdemeanor. Jonathan Raven, the chief deputy district attorney in Yolo County, said his office tried to get her into treatment.) And, in Davis, California, Alec Morgan was charged with a felony conspiracy to commit a misdemeanor when he and two friends stole two bicycles, both worth under $200, from an apartment complex.
In a county of a little over 200,000 people, the elected Yolo County district attorney, Jeff Reisig, has been using his prosecutorial discretion to circumvent Proposition 47 and Proposition 57, two measures that passed in 2014 and 2016 intended to reduce state prison populations. Prop 47 makes certain low-level crimes misdemeanors. But by using a felony charge known as “conspiracy to commit misdemeanor”—the charge makes any theft conducted by more than one person a felony regardless of the amount—Reisig is threatening to send people to prison for minor acts of theft.
Reisig–like other nominally progressive district attorneys in California–opposed Prop 47 and Prop 57 when they were on the ballot. He argued that Prop 47 was a “revolving door” on crime. In 2003 and 2010, his office had the highest rate of children charged as adults under California’s direct file law. He has a history of overcharging, including, for example, Vincent Ruiz, a man who was playing outside with a laser pointer and was charged with the felony of “discharge of a laser at an occupied aircraft.” But it’s clear that residents of Yolo County want the new reforms enforced. Both Prop 47 and 57 passed with a majority of votes in the county. According to the ACLU Foundations of California, 61 percent of county residents voted in favor of Prop 47; 68 percent for Prop 57.
In the lead-up to his primary election on June 5, Reisig has promoted his creation of a neighborhood court and other diversion courts, but he has remained a steadfast opponent of criminal justice reforms favored by many California voters. He is one of the many prosecutors in California who have decried Prop 47 as a “public safety disaster.”
DAs and other officials who oppose criminal justice reforms have persistently presented a message that Prop 47 has resulted in shoplifting with impunity because would-be thieves know that they will not go to state prison if their theft is less than $950. Some local California police have argued that they can’t even arrest people for shoplifting because the law doesn’t allow them to be charged with a felony. As a result, they claim, arrestees are released into the community quickly and do not face state prison time.
In reality, there is ample evidence to show that crime in California has continued to decline. Even the California Retailers Association, a trade group that advocates for store owners, says that it’s too early to tell if Prop 47 has caused any change in shoplifting patterns.
Michael Romano, an attorney with Stanford’s Three Strikes Project, pointed out in a phone interview with The Appeal that shoplifting is still against the law, despite changes to sentencing or charging decisions. And, there’s actually nothing in Prop 47 forbidding local police departments from holding accused shoplifters in jail on bail. What Prop 47 did do was force county jails to decide which people would get probation rather than jail time, and most departments have opted to save their limited jail space for violent crimes.
But, those against reform have argued that shoplifting is increasing and Prop 47 should be changed. There are two proposals to roll back Prop 47. One is comprehensive and backed by groups who strenuously argue against the criminal justice reforms that California residents overwhelmingly voted in favor of. The other focuses purely on the shoplifting issue and enjoys broad support from liberal DAs. Both rely on statistics that suggest shoplifting is rising nationally, but not that California is experiencing an increase.
One major driver of the campaign to roll back Prop 47 is the California Retailers Association. Using anecdotal evidence, the association has helped spread anxiety that shoplifters have formed “retail theft rings,” the equivalent of a shoplifting criminal enterprise. While some thefts are most likely part of a group effort—people may be stealing some products to resell—there’s no official definition of “organized retail theft” beyond the one that the trade association has created. Retail associations and law enforcement have long claimed that shoplifting is a major source of income loss, but the data comes from the National Retail Federation itself, and it’s not clear whether this is the result of outside shoplifters or employee theft. And while the National Retail Federation did a 2017 survey that found 95 percent of store owners said organized theft was a problem, they did not do any California-specific research. Bill Dombrowski of the California Retailers Association confirmed in a phone interview that while “we all know” shoplifting has increased, there was no state data.
More comprehensive rollback efforts are being spearheaded by California Assemblyman Jim Cooper, a Democrat whose district includes Sacramento, and the Republican district attorney in Sacramento, Anne Marie Schubert. Their backers include the Klass family, prominent proponents of the Three Strikes Law, under the banner of the California Public Safety Partnership. Cooper has cast the shoplifting problem as one that impacts small businesses, not big-box stores. In a statement released by the California Police Chiefs Association, Cooper said, “Emboldened thieves will continue to extort the law with no consequences, resulting in increased costs for day-to-day essentials for working-class families.” The partnership includes trade groups like the California Grocers Association, whose policy director said: “Since 2014, we’ve seen a significant increase in both incidents and in the value of cases as it became known that no matter how many times you’re caught—so long as you stay under $950—you’ll just get a citation to show up in court.” (Assemblyman Cooper was the grocers association’s “Legislator of the Year.”)
The second proposal, in contrast to Cooper’s, is sponsored by Assemblyman Reggie Jones-Sawyer from Los Angeles and backed by the California Retail Association as well as half a dozen DA offices, including San Francisco’s DA office. (Governor Jerry Brown also participated in the drafting, according to Jones-Sawyer.) Promoted as a compromise bill, the proposal would make organized retail theft a “wobbler” – something that can be charged either as a misdemeanor or a felony. Jones-Sawyer described this as “right down the middle.” Dombrowski of the California Retailers Association said Prop 47 has “contributed” to shoplifting, but added, “I’m not willing to say it’s the source of all problems.” He said the association supported Jones-Sawyer’s bill because “our industry didn’t have any interest in getting involved in that fight [over general criminal justice reform].”
Raven, the Yolo County chief deputy DA, explained to The Appeal that the data did not show a significant increase in the number of “conspiracy to commit misdemeanor” charges. The number of cases charged as “conspiracy to commit misdemeanor” more than doubled between 2014—the year that Prop 47 passed— and 2015, from nine to 21. But at least half of those cases include other felony charges, which Raven argues shows no intent to inflate charges. Instead, he cast the use of a conspiracy charge as prosecutorial discretion that “is a valuable tool in the right cases.” He also pointed out that the number of misdemeanor conspiracy cases was only a small portion of the nearly 4,000 misdemeanors filed in Yolo County every year. (Raven also discussed the specific cases at issue and pointed out factors that he thought would justify a conspiracy charge.)
Reisig’s decision to charge people with felonies for stealing even a few hundred dollars’ worth of merchandise has become an acceptable move for prosecutors even when the electorate has specifically decided that such thefts should not be punishable by state prison time. Tracie Olsen, the public defender of Yolo County, said in an email statement: “Jails and prisons should be reserved for those that are truly a present danger to public safety. It’s really all about differentiating between those that we are afraid of and those we are simply mad at.”
Reisig now faces opposition for district attorney from Dean Johansson, a public defender who has argued against this sort of overcharging. It remains to be seen how much a factor the issue will be in tomorrow’s June 5 primary, which may come down to a partial referendum on the future of criminal justice reform in the state. Jonathan Simon, a law professor at University of California, Berkeley, who has studied trends in California incarceration, said: “It is important not to underestimate how seriously both prosecutors and police organizations take the very recent and still emerging popular turn against the politics of ‘fear of crime’ that had dominated American politics from LBJ to Obama. …Without the extraordinary valorization of law enforcement freedom of action in the era of fear of crime, the extraordinary expansion of law enforcement power would strike many as intolerable and unconstitutional.”
From the ’80s and into the aughts, “drugsandcrime” was one word for politicians. Drugs followed crime, or vice versa, and drug use was rarely discussed as anything other than a menace: “Public Enemy No. 1.” Thanks to an unprecedented uptick in overdose deaths initially affecting white people, that get-tough rhetoric has begun to soften. President Trump has declared the overdose crisis a national public health emergency.
But he isn’t the first president to see it that way. Before Presidents Ronald Reagan and George H.W. Bush turned drugs into a signifier of urban decay, and before Nixon launched his “War on Drugs,” President Lyndon B. Johnson in 1965 assigned James Vorenberg, future assistant to Watergate special prosecutor Archibald Cox, to lead more than a dozen legal experts and scholars to examine “every facet of crime and law enforcement in America.” Far from a cohesive system, little was known about how the fragmented patchwork of “law and order” actually worked. Among other accomplishments, the task force helped establish 911 dispatch services across the United States and a procedure governing the treatment of suspects after arrest.
But there was also a short and obscure chapter in the Commission on Law Enforcement’s 1967 report, titled “Narcotics and Drug Abuse” that addressed both the causes and ramifications of illicit substance use. The commission was “decades ahead of its time” on the topic of drugs, Bryce Pardo and Peter Reuter write in “Narcotics and Drug Abuse: Foreshadowing 50 Years of Change,” their paper in the journal Criminology & Public Policy.
The authors, drug policy researchers at the University of Maryland, analyzed the commission’s chapter on drugs—now over 50 years old—with fresh eyes and new knowledge. The Appeal caught up with Pardo to discuss contemporary drug policy, including the use of harsh criminal penalties, the new difficulties posed by illicit fentanyl, and alternatives to prohibition gaining political momentum. Below is an interview edited for length and clarity.
You write that the Johnson administration’s Commission on Law Enforcement was “decades ahead of its time.” What did they get right about law enforcement’s role in drug control back then?
Bryce Pardo: I was really shocked by how they recognized the limits of drug law enforcement. They said even complete control, complete enforcement, won’t eradicate this problem. But they failed to foresee the negative impacts law enforcement could have in policing urban communities of color, and other harm-enhancing aspects of law enforcement.
They were also fairly forward-thinking when it came to [methadone] maintenance therapy. They discussed how we needed to have more research in maintenance therapy, and how the regulations with regard to the Harrison Act [a 1914 federal law that regulated and taxed opiates and coca products] were confusing and limited options for drug users when it came to treating their drug use.
They saw demand reduction as a useful tool to reduce crime. And I think having a law enforcement agency say that today would be shocking to hear, from say, the DEA or something like that. I was surprised to hear that from the ’67 report, coming from the kind of drug war era of the ’80s that I remember. The show Cops on TV, that’s what I grew up with, and to go from that to a commission 30 years before talking about how we need to expand maintenance therapies—that just really struck me as as very forward-thinking.
What derailed the forward thinking in the 1967 report? If the seeds for medical treatment were sprouting back then, why did the drug warriors eventually win out?
If you think about the drug war in terms of today, where you have GIs in SWAT gear kicking down doors and arresting drug dealers in their houses, that was really part of Reagan’s initiative, starting in the early ’80s. Even though Nixon was the first to declare the War on Drugs, he was more comprehensive in his approach, by advocating for methadone and other treatment modalities, along with supply-side interventions.
Cocaine came on the scene and really took off. And dealing with cocaine is just different than heroin. You don’t have any medication; there is nothing you can give a drug user who is addicted to cocaine. When you have new forms of drug use, like freebasing or smokeable cocaine, which hit you harder through that route of administration, it really scared a lot of people and the response was to crack the whip.
It does seem that the orientation of the policy is that, we’re just going to shift the market out of sheer will. They came from kind of a post-lunar landing American phenomenon where if we can put a man on the moon, we can eradicate drugs. You had this emphasis on creating a “drug-free America.” That brought us “Just Say No!” and these kinds of platitudes. Mothers Against Drunk Driving, which Reagan really latched onto, also promoted looking at drugs as a moral failing.
Despite changes in rhetoric, America’s response to illicit drug use still focuses on arrests for nonviolent drug crimes. And many of these arrests are for simple possession. Do you think that this strategy has value?
Arresting drug users doesn’t make sense unless their drug use has become a problem. Arresting a repeat DUI offender or somebody who has broken into a home to pay for his or her habit—there are programs that we could employ that do use the criminal justice system in a more appropriate fashion.
There’s the Swift, Certain, and Fair sanctions or the HOPE (Hawaii’s Opportunity Probation With Enforcement) model. Those types of programs may work. But ideally we’re not arresting the individual for his or her drug use, it’s the actions related to his or her drug use. Clearly, [in those cases] their use of substances has spilled over into problematic territory. They’re committing crimes to pay for their habit, or they’re not using responsibly and they’re engaging in risky behavior in public and putting other people’s lives at risk. So those are when you might step in and use corrective measures.
But, by and large, you’re going to find very few people in the drug policy community who think arresting people for simple possession is a reasonable approach to our drug problem.
Today, police officers, prosecutors, and politicians often say, “We can’t arrest our way out of the overdose crisis.” But I’ve reported on severalcases where a drug user gave a friend a bag and then is charged with manslaughter or murder when that friend overdoses. That’s a very harsh response.
I remember the “we can’t arrest our way out of this problem” taking steam with Obama’s first drug czar. Gil Kerlikowske, former chief of police in Seattle, said this during [President Barack] Obama’s first term. That started to shift the rhetoric at the federal level where people started to realize that we need to do something else.
There’s a signaling effect at the federal level saying we need to do something different. But when it comes to the actual application of the law, most of it happens at the state level. So getting state prosecutors to not charge a user for “social supply” when that individual and his friend or her friend overdoses would be a good step in the right direction. But you’d have to get local prosecutors to buy into that. So they might not hear that message for a while. Now with the new administration kind of shifting the rhetoric back in the other direction, it’s kind of scary because you could have a signaling effect in the other direction.
Do you think the shift in rhetoric, like Trump calling for the death penalty for dealers, is going ramp up harsher enforcement?
Right now, yes. The federal government has a role in terms of kind of framing the debate. After the initiation of the War on Drugs, some say that we had a retreat initiated under Obama. They came out with the Cole Memo, saying we’re not going to crack down on states that are legalizing cannabis for recreational purposes.
The signaling effect has an impact on local jurisdictions and after the Cole Memo came out, you saw more jurisdictions saying we could legalize for recreational purposes. I do think that the shift of the tone away from the criminal justice system for drug users was positive under Obama.
The idea of increasing fentanyl penalties was tossed around prior to Trump—in California and Massachusetts. Some of these include lowering the threshold that trip mandatory minimums for fentanyl. But now some prosecutors are more willing to charge dealers with homicide when an overdose occurs.
DAs and prosecutors, in a lot of cases, are elected. Again, there is this political push to look like you’re doing something about the problem. If there’s a problem with drugs in your community and you’re charging, it looks like you’re doing something versus if you’re not charging them.
What do you think of the recommendations released by President Trump’s commission on opioids?
The recommendations were fine. They were pretty boilerplate. I have commented amongst my colleagues saying that they don’t look at fentanyl very closely. They still see the crisis as a prescription drug problem. It’s true that we need to turn off the tap, and we are doing that with the new prescription guidelines, prescription drug monitoring programs, and with abuse deterrent formulations. But doing that could cause other problems, and it seems to be that it is impacting users’ decisions to move to the illicit market.
However, in this report, they had an opportunity to look at innovative drug policies that focus on synthetic opioids and there’s pretty much zero in there. They do talk about creating new antagonist therapies—stronger naloxone—so that we can save people’s lives who are overdosing on fentanyl. Sure, fine, that’s great. But there’s no innovative approach trying to prevent the overdose from even occurring: looking at supervised consumption sites, heroin-assisted therapy, those types of innovative programs that specifically target the threat from the potency of fentanyl.
They do talk about increased interdiction and detection measures. But, by and large, they missed the mark when it comes to thinking forward about the problem.
Has anything like illicit fentanyl come on the scene before? Have police ever faced a sudden outbreak as big as this?
To this extent? No. Illicit fentanyl and analogs have been around in isolated incidents as far back as 1980. A few analogs would show up in markets, and nobody would know what was going on until they tested the drugs. Transdermal patches were invented in the ’90s, and you’d have diverted transdermal patches where people would suck out the liquid.
Fentanyl had a real big kick in 2006, when a lab in Mexico was producing it and mixing it with heroin. There were a couple of markets in Chicago, Detroit, and a few other places in the Midwest that were hit hard by that. The DEA [Drug Enforcement Administration] and CDC [Centers for Disease Control and Prevention] came on real quick and expanded access to naloxone, and the DEA actually did a very good job of shutting down a lab right away.
We haven’t seen a crisis to this extent, where you have drug users looking for traditional drugs like heroin, or in the case of Prince, who’s looking for Vicodin, and getting something that’s orders of magnitude more potent. I don’t think that that has happened, where the users are buying something that’s more harmful and not wanting it. They want what they’re traditionally used to. And it’s happening on such a wide scale.
What I can say, though, is that usually these markets don’t come back down to where they were before. We used to have a morphine problem and then we had a heroin problem. We’re going to be [stuck] with the fentanyl problem, at least in the short term. And that’s really scary.
A study recently came out of Rhode Island, where they found that treating opioid addiction with medications in jail and prisons made a significant dent in the overdose rate. From your perspective, why doesn’t every single jail or prison offer these medications? What’s the barrier here?
My guess is social attitudes. People look at these medications as though you’re trading one addiction for another. If you want to force people into abstinence, it’s probably not going to work. You need to meet their needs. If they get their quality of life back using Suboxone or methadone, who gives a shit? But I think for a lot of people, that’s a hard pill to swallow.
I was really shocked to find out a couple of months ago that states like Indiana and West Virginia have moratoriums [making it harder to license] new opioid therapy providers, and it’s like, why are you fighting this problem with your hands tied behind your back? It’s crazy. You should be licensing as many providers as you can.
Again, it’s social attitudes. The states that are having the biggest problem will probably continue to have the biggest problem until they change the way they think about drug abuse and drug addiction.
There’s obviously a lot of talk about opioids. Maybe too much. You write in the paper that alcohol was curiously left out of the chapter on drugs in 1967, and specifically the way alcohol is connected to violence. Alcohol today kills way more people than opioids. Are we not focusing enough on that?
Absolutely. We are still having a huge problem with alcohol. Alcohol is a factor in an estimated one-third of violent crime, guns, and alcohol-related arrests or violations. Not an insubstantial number of police service calls are due to alcohol, domestic violence, drunk-and-disorderlies or DUIs.
We still have a problem with alcohol, and we’re probably going to have more of a problem now that we’ve reduced taxes. The tax cut law that was passed last year also cut taxes on alcohol. Phil Cook at Duke has been clamoring for increasing taxes. There are projections that if you double the tax, the number of [drunken driving] deaths would drop by more than a third.
I do think the alcohol problem is often overlooked because it’s licit, and because there is a broad user base. Most alcohol users use responsibly, and most drug users use responsibly, too. But most alcohol users are infrequent, and they don’t see any problem in their own social setting, which is fairly safe. So they don’t see any need to increase taxes, and the industry is very strong and protective about not increasing taxes and regulations.
The War on Drugs has been disproportionately waged in minority communities, even though there’s zero evidence that people of color do more drugs than white people. You write that aggressive law enforcement has contributed to a “deterioration in state-community relationships.” What changes need to happen here?
There’s creative solutions to some of these problems. You have people who say legalize everything, and that would solve that problem. But in some instances, it would create problems elsewhere. If we’re not going to legalize, there’s a middling approach, which would be to improve the way we do policing such that it’s more community-oriented. Instead of looking at policing as an occupation, police need to look at it as more of a service that they’re providing. A lot of the rhetoric has changed and a lot of the training has changed.
There’s a lot of room to go. Police are still very quick to the draw. And I think the drug war and the emphasis on SWAT tactics has had a huge negative effect on the way police look at the policed. They look at [the policed] as a potential threat rather than a client. The opioid problem, in some instances, has changed this. Now, police are requested to administer naloxone to overdoses. I’ve heard stories of police being horrible about it and reluctant to do it.
You see that some local jurisdictions are starting to change their tune. Vancouver Police Department has very forward thinking when it comes to harm reduction. They now look at Insite [supervised consumption sites] as part of the package. They request politely for drug users to go and use over there, to spare the public from witnessing public consumption. Nobody wants to see people injecting in the street. Vancouver PD has also been very forward-thinking when it comes to offering alternative agonist therapies. They did a report a year or two ago that said outright that we should try heroin-assisted therapy, which was remarkable for a police department in North America to say.
What are some of the most exciting alternatives to drug prohibition that you have your eyes on?
Part of the problem is that there’s a false dichotomy presented to people, which is legalize or prohibit. And there’s a lot of options in between. A few years ago, Rand put out a report about cannabis in Vermont. They proposed 12 different cannabis policies you could choose from. You can increase prohibition and crack down even more [or you can have] a fully unregulated free market. And between that, they have policies like what we have here in D.C., which is “grow and give.” You’re allowed to grow six plants in your home and give away up to an ounce to anyone over 21—no transaction.
It’s clearly created a gray market. But the gray market doesn’t have some of the trappings of commercialization which some people would like to avoid. There’s the Dutch model, where it’s illegal in back but legal in the front, which means you can sell it retail legally, but you can’t sell it for wholesale. And then there’s a bunch of other opportunities or options in between: So like, creating a state monopoly, creating a public benefit corporation, or nonprofit to distribute—there are a bunch of different options.
There are other things we could do that still keep prohibition but reduce the harms. Portugal has done that. They’ve maintained prohibition, but they’ve essentially reduced the harms of the individual drug user, by removing the criminal penalties for his or her possession or drug use. So now if you’re caught with up to a 10-day supply of whatever drug you have that’s prohibited, you’re referred to a commission made up of a lawyer, a clinician, and essentially a social worker. These three individuals determine what type of user they’re dealing with. If you’re a problematic user, you may be referred to treatment, or maybe get a slap on the wrist and pay 70 euros.
Most users are basically let go with nothing other than a warning and those who are problematic users are referred to treatment. It’s a decriminalized model, but they also include ramped-up treatment provisions and harm reduction tools. At the time, they were facing a heroin crisis much like today.
Several cities are gearing up to open supervised consumption sites, where people can administer their own illicit drugs under medical supervision. Over 100 of these sites are in operation across Canada and Europe. What do you think of that option?
The literature review on supervised consumption is interesting. … There’s been several dozen articles looking at outcomes, several more looking at user utilization, and public opinion. But when you look at the outcomes that we care about, like overdose calls, overdose deaths, crime, improper disposal of injection equipment, that kind of stuff, we see that the majority of the design methodologies are lacking in rigor.
I would say that supervised consumption facilities probably do some good and there’s definitely a moral argument there to be made for allowing individuals to inject without the threat of overdose.
It’s going to take a lot of different solutions and everything on the table is game, I think. The problem is so severe. … There needs to be some sort of discussion in conservative states about health care at-large, you know, just looking at health care more holistically. In addition to that, looking at mental health care and drug addiction care so that we can actually get more opioid treatment providers out there. I think that would be a lifesaver for rural America.
I’ve been trying to get people to consider researching prescription heroin for some users. Especially in today’s market where fentanyl is in the market. I think we better act before it’s too late because eventually there might be a day when the market will completely convert to fentanyl and you will see demand, which is starting to appear in some areas, where people are now saying that they’re hearing drug users looking for fentanyl in the market, they’re not looking for heroin anymore because they’re too tolerant.
We need to start talking about the violence in certain communities in this country. Communities like Baltimore, which has been kind of degraded by drug use for the last 30 years, as well as rural communities, that have more recently been touched by drug overdose as well. We need to try and have this broader discussion without it getting politicized is the hope.
In early February, four longtime public defenders in San Francisco announced their plans to run for Superior Court judge, a position that would allow them to preside over the very same courtrooms where they had been defending indigent clients for years. The public defenders were targeting the seats of four judges who had been appointed by Republican governors, Pete Wilson and Arnold Schwarzenegger, the type of judges who rarely face serious challenges from either party. But instead of being greeted by local Democratic politicians with enthusiasm and encouragement, the public defenders were instead criticized for daring to run.
A week after the announcement, Assemblymember David Chiu, a Democrat from San Francisco, expressed a deep concern about the “politicization of the bench” speaking out with three local Democrats who defended the current judges (who have also described themselves as Democrats).
The blowback took some of the candidates by surprise. “I’m naive, man,” Phoenix Streets, one of the four candidates, told The Appeal. “When I started running, I thought we were going to have a conversation about the criminal justice system. … I did not realize that we were declaring war. But I’m glad we did, because that makes it much more fun.”
The four new candidates, all of whom are either Black or Latinx, hope to address the disproportionate impact of the criminal justice system on people of color in San Francisco, a famously “progressive” city. In 2016, the Department of Justice issued a 400-plus page report describing implicit bias against minorities in the San Francisco Police Department. According to a 2015 study, Black adults in San Francisco were more than seven times more likely than white adults to be arrested.
“The numbers don’t lie,” said Niki Solis, one of the public defenders running for judge. “There are numbers that show implicit bias and you need to address them. We think that San Franciscans would be well-served to go to the poll and elect critical judges. … We need to hold these [four] judges accountable and we need to say to the electorate that these numbers are stark, and they’re troubling.”
Solis, a formerly undocumented immigrant whose family arrived from Belize was she was an infant, explained that the public defenders are trying to transform the justice system wholesale. For starters, they’re focusing on diversion for those arrested and treating incarceration as an option of last resort. She believes new judges who better reflect the population they are serving could remake the justice system in a way that would minimize the worst aspects of biased policing.
California’s power brokers have traditionally refused to run challengers against whoever is appointed by the governor, because they fear an influx of money into normally staid judicial elections and they say judges are meant to be above partisan politics. But those aren’t the only reasons. Often, Solis explained, these appointments are drawn from law firms that have showered sitting judges with campaign donations and parties celebrating them. If no one runs against an appointee when the position is up for election, the judge’s name doesn’t even show up on the ballot. This lets one of the most crucial pieces of the criminal justice system, Solis argues, stay completely out of reach for anyone who isn’t politically connected.
The challengers chose these particular judges solely because they were Republican appointees and up for re-election this year, not because they were any more or less progressive than other members of the judiciary. But, as candidate Maria Evangelista recently argued in a blog post, new judges are needed to disrupt the status quo.
“Judicial elections are mandated by the California Constitution every six years to ensure there are checks and balances on judges who were given political appointments,” she wrote. “True judicial independence will come from electing judges from diverse backgrounds to eliminate implicit bias.”
Chiu disagrees that the sitting judges, two of whom are Asian, don’t represent the diversity of San Francisco. And while he doesn’t believe that incumbent judges are sacrosanct (he says he has supported challengers in the past), he thinks judges should be evaluated based on their records, not on who appointed them.
“The four judges that were selected to be opposed are all incredibly well-respected and well-qualified with long records of progressive achievements. The suggestion that simply because of who had appointed them, they were somehow less qualified to serve on the bench, I just didn’t agree with,” Chiu said in an interview.
Yet, across the country, public defenders are increasingly competing for seats in places where incumbent judges are unaccustomed to being challenged. They’re running with an eye toward transforming the criminal justice system from the most important position in the court, one that decides what evidence can be admitted, what charges can be levied, or whether a sentence truly fits the crime.
Kathryn Maloney Vahey, an assistant public defender who ran for a vacant position on the Cook County Circuit Court in Illinois last winter, explained that the county’s convoluted process for forcing a judicial election makes it so that “99.9 percent” of judges are retained. When vacancies do come up, they’re competitive affairs, and ones in which, she says, public defenders have traditionally not fared well due to their supposedly “soft” approach to punishment.
As progressive prosecutors have swept to power in Chicago, Philadelphia, and Houston, judges (who are often former prosecutors) have acted as barriers to reform. In Philadelphia, for instance, judges have so far thwarted many of District Attorney Larry Krasner’s attempts to reduce sentences for people who were given automatic life without parole as juveniles. In Cook County, Illinois, a judge got into a shouting match with a prosecutor who said the court should have offered bond to a woman who was seven months pregnant. She eventually had to give birth while being held for a probation violation. In Harris County, Texas, several judges named in a federal lawsuit continue to fight a district court ruling declaring the county’s bail system unconstitutional. The Harris County prosecutor, Kim Ogg, supports the ruling and reforming cash bail.
For former Harris County public defender Franklin Bynum, a candidate for criminal court judge, decisions like the ones made by the judges appealing the ruling are what pushed him to run. “This system is an indefensible system. Even a lot of the local politicians who are not seen as fire-throwing radicals say this,” Bynum told The Appeal. “I’m one of a chorus of people saying the criminal justice system in Harris County is fundamentally broken and it’s run by the worst people in the county. It has to stop.”
And, in his case, change is likely. In March, Bynum won his district’s primary unopposed. His opponent in the general election easily defeated the incumbent Republican judge and has support from religious conservatives, but is considered unlikely to win. Bynum, it should be noted, is running as a Democratic Socialist, something he said the local Democratic Party has urged him to tamp down his rhetoric about.
In Cook County, which leans overwhelmingly Democrat, Vahey won her primary against the incumbent, even without the endorsement of the local Democratic Party (which endorsed the incumbent). Vahey ran alongside a slew of other public defenders, many of whom were victorious—representing something of a public defender wave in Cook County. According to Injustice Watch, “Current or former public defenders won seats in 14 of the 23 contested races they ran in,” while just two years ago, “only six current or former public defenders ran in contested races, and only one of them won.”
The candidates aren’t confined to only urban areas that have seen recent progress on criminal justice reforms. Suzanne Hayden is a public defender in Clallam County, Washington, right at the tip of the Olympic Peninsula. She’s running for a district court seat that is being vacated by Rick Porter, a judge who instituted a “pay-or-appear program” in the courts, where defendants had to pay fines, do community service, or be incarcerated, which critics say improperly punished people who were unable to pay. The state recently passed legislation outlawing such practices. “I thought I would live and die as a public defender,” Hayden said, explaining that she hadn’t really considered running for judge before Porter left his seat and set the stage for a November election.
Even though recent successes point toward something of a trend, the fact that states have different rules or gatekeepers for how judges are elected or appointed remains a significant hurdle for many public defenders looking to get on the bench.
Todd Oppenheim, a public defender in Baltimore, experienced those challenges firsthand when he first ran for a circuit court judge seat in Baltimore in 2016, and then tried to get appointed to a judge position a year later. Neither bid worked. Judges often run together as a “slate,” Oppenheim says, pooling resources and making it extremely difficult for an insurgent candidate to make an impact in the polls. As in California, appointments to the bench in Maryland are often handed to lawyers at politically well-connected law firms, who go out of their way to make sure no one else can emerge as a viable candidate.
“The private attorneys … they go to every judge’s fundraiser, they get onto the committees on these bar associations, and one of them pulled me aside,” Oppenheim said, “and he kind of warned me after I announced my candidacy but had not filed with the state: ‘This is going to ruin your career. What are you doing?’”
“As public defenders, we see [the justice system] day in and day out, and we have a unique perspective of what works and what people want done. How to treat people and how to speak to them, and speak to their issues so that they can get out of the criminal justice system,” Solis, one of the San Francisco candidates, said. “Now, more than ever, we need folks like us to stand up and be members of the judiciary.”