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A growing number of prosecutors are reforming their local criminal legal systems, fueled by activists’ calls for change and electoral mobilization around district attorney races. Many other prosecutors are fighting reform, whether locally or through statewide lobbying. Some even do both.
On this interactive page, the Political Report tracks the changing politics, practices, and policies of prosecutors nationwide. What reforms are they rolling out, and are they actually implementing them? Who is more ambitious in their proposals, and who is most resistant to targeting mass incarceration? After all, prosecutors enjoy tremendous discretion, and policies they set—like whether to seek bail, to treat minors as adults, or to prosecute marijuana cases—impact the scale of mass incarceration.
This page is written by Daniel Nichanian. Explore developments chronologically below, or geographically with this interactive map.
This page, launched and continually updated from early 2019 to June 2021, will no longer be updated as of June 2021.
The Appeal: Political Report is also committed to drawing out and clarifying the politics of prosecutorial elections, and probing what reform means for candidates who run on a platform of curbing or ending mass incarceration. Read our coverage of the 2018 local elections, the 2019 local elections, and the 2020 local elections.
Six people have been freed since the office of Baltimore State’s Attorney Marilyn Mosby set up a conviction review unit in December to revisit long sentences. Donald Braxton, who spent 40 years in prison for murder, was set free on the office’s recommendation, the Baltimore Sun reports. The unit’s approach is to review the sentences of people who have served at least 25 years in prison if they are over 60, or if they committed a crime before the age of 18. (See also: Maryland banned sentencing children to life without parole in April.)
Eli Savit, the new prosecutor of Washtenaw County (Ann Arbor), said this month that he would create a pretrial diversion program that would drop some people’s charges (without first requiring a conviction or guilty plea) if they complete a treatment program. Savit says this is Michigan’s first pretrial diversion program (as opposed to one that aims to avoid incarceration but only if defendants plead guilty). Still, such policies often only serve small numbers because of the resources they demand, and keep some types of behaviors within the criminal legal system. Savit says a pilot version of his program will serve 150 people this year.
Cara Siemon, the prosecutor of Ingham County (Lansing), is confirming a policy of offering defendants accused of murder to plead down from first-degree murder charges as a way around Michigan statutes that trigger automatic life without parole for people convicted of that charge. (See also: This is a salient issue as well in the Manhttan DA election, with half the field pledging to not seek life without the possibility of parole sentences.)
The office of Satana Deberry, Durham’s DA, successfully petitioned a court to expunge the criminal records of nearly 300 people who were charged for acts they committed as minors between 1994 and 2018. Her office recently gained the power to make such a request because of legislation adopted by the state last year to facilitate the expungements of misdemeanors and low-level felonies.
Manhattan DA Cy Vance announced that his office would no longer prosecute sex workers, joining the Brooklyn DA who made a similar move earlier this year. His office asked a judge to dismiss thousands of cases involving prostitution, unlicensed massage, and loitering for the purposes of prostitution. Vance will keep prosecuting buyers of sex work, which falls short of the demands of full decriminalization many advocates in New York have been pushing. The majority of candidates running for DA in Manhattan this year have vowed to no longer prosecute charges that involve sex work.
In the wake of the news that Queens prosecutors withheld evidence in a case that led a man to spend 24 years in prison over a wrongful conviction, DA Melinda Katz has declined to order a review of other cases in which these prosecutors worked. Her office is calling the issue “inadvertent” but advocates and observers are pressing for more action. The Queens DA’s office has a long history of not reviewing conviction integrity claims.
Dozens of prosecutors have signed a letter to President Biden, urging him to end the death penalty and commute death sentences. But back home, The Appeal reportsl, some of them have not stopped the execution machine.
They “still seek death sentences, oppose death row prisoners’ appeals, and take no action to remove those on death row. In some cases, they have petitioned the court for execution dates,” Weill-Greenberg writes. She dives in particular into the records of the DAs of Bexar and Dallas counties, in Texas: Both signed the letter but are arguing for some death sentences to stand.
The Oregon District Attorneys Association (ODAA) has long resisted criinal justice reforms in Oregon, Piper French reports in the Appeal: Political Report. But it may be facing a reckoning with the emergence of a new progressive bloc. Three prosecutors, two of whom were just elected in 2020, are breaking with the ODAA and supporting legislative efforts to undo mandatory minimum sentencing. That said, they are all also choosing to remain within the ODAA.
Other states in which DA elections are fissuring the anti-reform consensus that DAs usually project include California and Virginia.
More than three years into DA Larry Krasner’s term, The Appeal’s Joshua Vaughn reports on how his promises to reduce incarceration have fared. “He has prosecuted significantly fewer cases than his predecessors,” Vaughn writes. “He has reduced the use of cash bail and …. has reinvigorated his office’s conviction integrity unit.” Krasner has also faced criticism, including from people on the left who urge him to be more transformative.
In addition, Maura Ewing probed Krasner’s record on reducing probation terms through his policy of capping their length.
Krasner has also dismissed a growing share of drug possession cases, Ewing found in a separate story. His policy is to drop charges as long as a defendant shows they have attended one treatment or Narcotics Anonymous meeting, without monitoring future attendance or completion.
Chesa Boudin has finished his first year as San Francisco’s DA. The Appeal’s Elizabeth Weill-Greenberg dives into his record, examining what he has done when it comes to decarceration and also asking what local activists point to as challenges.
Weill-Greenberg reports on the effects of Boudin’s new policies to reduce pretrial detention, to decrease the use of incarceration by expanding diversion programs, and to not seek sentencing enhancements for past offenses or gang affiliations. Boudin said his goal is to break the country’s “monomaniacal reliance on incarceration as a response to such a diverse array of social problems.”
Meanwhile, efforts to recall Boudin are ramping up: Mother Jones reports on the wealthy tech executives and Silicon Valley investors who are behind it. And Susie Neilson dives on crime rates in San Francisco in the Chronicle.
A study released in March measured some of the benefits of avoiding prosecution: In comparing low-level cases over which people were prosecuted to equivalent cases over which others were not prosecuted in Boston, the study found that individuals in the latter group were far less likely to come in contact with the criminal legal system in the future.
The study coincided with the announcement of new declination policies in Baltimore.
State’s Attorney Marilyn Mosby announced that her office would not prosecute a list of low-level offenses. The list includes drug and drug paraphernalia possession, attempted distribution, prostitution, trespassing, open container violations, and urinating and defecating in public.
“We … no longer default to the status quo to criminalize mostly people of color for addiction,” Mosby said in a statement. Mosby had begun some of these policies during the pandemic, and made them permanent with this announcement.
Andrea Mashouri, a reporter with the Des Moines Register who faced a trial after being arrested last year for disobeying police officers while covering a Black Lives Matter protest, was acquitted on Wednesday. The decision to prosecute Mashouri, which was widely denounced as an attack on the freedom of the press, was made by the office of Polk County Attorney John Sarconne, a Democrat who has routinely run for re-election since 1990 without facing any opposition.
The Appeal reports that law enforcement and prosecutors in Harris County are operating as normal even as COVID-19 continues to spread and the local jail is cramped. This includes undercover stings and prosecutorial requests of no-bond detentions. “Harris County Sheriff Ed Gonzalez had for months been proposing lists of people his office believed were safe enough to release early from the jail to reduce overcrowding amid the pandemic. But in virtually all cases, [DA Kim] Ogg’s office objected.”
Jason Williams, who ran on a reform platform in 2020 to replace a punitive DA, is now rolling out new policies. For one, The Lens reports, he has so far respected his campaign promise to not use the state’s “multi-bill” statute, which empowers prosecutors to trigger long sentences for people with repeat offenses. He has also dropped his predecessor’s efforts to preserve the “life without parole sentences” of a dozen people who were sentenced to spend their life in prison while they were children. And The Advocate reports that he will no longer oppose any incarcerated person’s request for parole; some DAs routinely oppose all requests.
Williams is also making news with some of his hires. G. Ben Cohen, an attorney who played a leading role in the case that led the U.S. Supreme Court to rule against non-unanimous juries, will be his chief of appeals. Emily Maw, former director of the Innocence Project New Orleans, will head the civil rights division and review very lengthy sentences. In January, a 55-year-old man who was serving a life sentence for robbery was released after 24 years in prison, The Advocate reports, after Williams’s office agreed to have a court cut his sentence.
A California judge issued a ruling in early February blocking some reforms rolled out by Los Angeles DA George Gascón in December. Gascón had instructed his staff to not seek some enhancements for repeat offenses. The judge ruled that California prosecutors cannot dismiss those enhancements.
The ruling, which Gascón says he will appeal, came in the context of a lawsuit brought against his reforms by the Association of Deputy District Attorneys (ADDA). Piper French reported on the ADDA and its lawsuit in The Appeal in January, finding in the organization a “longstanding pattern of ideologically motivated advocacy and commitment to tough-on-crime policies.”
Gascón, who won the DA race in last year on a promise to reduce incarceration, then announced on Feb. 16 that he was resigning from the California DA association (CDAA), the group that lobbies in the name of state prosecutors, over its opposition to criminal justice reforms. Gascón is the second sitting DA to quit the organization, Jerry Iannelli reports.
Ann Arbor’s new prosecutor, Eli Savit, has announced new policies meant to protect immigrants. In a lengthy memo, he instructs his staff to take into account the immigration consequences of plea deals and sentences, with an eye to protecting defendants from deportation when “appropriate” shifts to the length of a sentence, the number of counts, or the language used in charging documents would make a difference. He also bars prosecutors from verifying a noncitizen’s record for ICE, or reporting any individual to the agency.
Three California prosecutors—San Mateo County DA Steve Wagstaffe, Riverside County DA Michael Hestrin, San Bernardino DA Jason Anderson—are looking to intervene in legal proceedings to speed up executions, the San Francisco Chronicle reports. The state ACLU says the DAs are barred from playing a role in a statewide legal case.
Their positions contrast with that of Los Angeles County DA George Gascón, who announced his office would no longer seek death sentences and that he would seek to review past sentences to get people off of death row.
Brooklyn DA Eric Gonzalez, who has pushed some criminal justice reforms in his first term, announced in late January that he was dropping hundreds of open cases against sex workers, and that he would decline to prosecute future prostitution cases.
Otillia Steadman reports in BuzzFeed that Gonzalez has been “rolling out” this approach over the last year, and some local activists said this is an important step to protect sex workers. But Gonzalez is not declining to prosecute all behaviors tied to consensual sex work, and he will continue to prosecute people who buy or promote sex work. Advocates for full decriminalization stress that this partial approach means continuing to expose sex workers to law enforcement and the criminal legal system.
Also: Sam Mellins reports in The Appeal on prosecutorial practices toward sex work in Manhattan.
José Garza, the new DA of Travis County (Austin), has released a memo that outlines some of the reforms agenda he ran on, including instructing prosecutors to seek no bail or “low” bail in more cases, and expanding diversion programs by removing some restrictions on access. Garza also reiterates his campaign promise, which goes further than other progressives who have run for DA, of no longer prosecuting the low-level possession and sale of drugs.
A grand jury in Travis County, Texas, has also indicted two police officers over the 2019 assault of Paul Mannie, a Black man. Austin’s police department had cleared the officers in an internal investigation, but Garza ran on a promise of presenting “all use-of-force cases to grand juries that involve deaths or serious injuries,” the Austin American-Statesman reports. Garza’s office also supported the release of Rosa Jimenez, a woman who has been fighting to establish her innocence.
Melissa Nelson, the chief prosecutor of Duval County (Jacksonville), first ran on promoting reforms and using the death penalty judiciously. But The Appeal reports that she is now seeking the death penalty against a man who is intellectually disabled, according to his attorneys. “Nelson seems to suggest that she would consider dropping the death penalty if not for Glover’s innocence claim and his plans to appeal his conviction,” Elizabeth Weill-Greenberg writes.
A growing number of prosecutors are running on never seeking the death penalty, rather than on promises of simply using their discretion more wisely. The Appeal has reported on other prosecutors, such as Houston’s Kim Ogg, who only made the latter promise and then aggressively defended death sentences.
Eli Savit, Ann Arbor’s new prosecutor, announced last week that he would no longer prosecute acts involving consensusal sex work and its soliciticition. “The criminalization of sex work actually increases the risk of sex work-adjacent harm,” says the eight-page policy memo released by Savit’s office. The directive also states that criminalization “is in serious tension with established norms related to bodily autonomy and personal liberty.”
The decriminalization of sex work has become an insistant theme in local elections over the past two years, but few prosecutors so far have announced formal policies of declining to prosecute. Chesa Boudin, the DA of San Francisco, announced last year he would not press charges for behaviors related to prostitution.
Two prosecutors rolled out new policies around the holidays of never seeking cash bail. In late December, Steve Descano issued a memo to this effect in Fairfax County, Virginia; Eli Savit did the same in early January in Michigan’s Washtenaw County (Ann Arbor).
Their decisions are big wins for national efforts to end financial conditions for pretrial release. People are jailed around the country because they cannot afford to make payments, which makes it more likely that they suffer consequences for an arrest and plead guilty. But there are question marks about the scope of these new policies and the extent to which they will restrict wealth-based detention,
After winning the DA’s race in Athens and in Oconee County this fall on a progressive platform, Deborah Gonzalez released a string of sweeping reforms on Jan. 1, detailed by the Political Report.
The DA’s office under her leadership will decline to prosecute marijuana possession, will decline to prosecute or else divert low-level drug possession cases, will never seek the death penalty, and will seek to release people charged for nonviolent offenses pretrial “on their own recognizance.” And a key area of reform will be to target probation, which she called “the back door into incarceration.”
Within hours of becoming district attorney of Los Angeles County, George Gascón rolled out momentous policy changes. He announced his office would stop seeking cash bail as of January. His office will also stop charging children as adults; will stop seeking sentencing enhancements of any type; will stop seeking the death penalty; and will decline to prosecute offenses associated with poverty and homelessness.
He rolled out plans to review sentences of roughly 20,000 incarcerated people. He promised a “concerted effort to review, resentence, and release” in a commentary published in The Appeal with Baltimore State’s Attorney Marilyn Mosby.
Gascón released policy memos on bail, youth justice, the death penalty, sentencing enhancements, misdemeanor declinations, resentencing, victims’ rights, and innocence reviews.
A major obstacle Gascón may face is cooperation from line prosecutors. The Los Angeles Times editorial board noted last week that civil protections rules will make it difficult for Gascón to appoint or hire new people who may help implement them.
The Political Report reported in 2020 on the organizing that focused on the Los Angeles DA race. And we interviewed Gascón in January on his views on reform. “The problem is that LA County has come to a place where they use the most expensive and the most intrusive tools of the criminal justice system to deal with every behavior, and that is prosecution and incarceration,” he said then.
Steve Descano rolled out a policy of no longer using mandatory minimums in plea deals when it comes to cases where sentences are not constrained by state law. He also asked the legislature to repeal mandatory minimums altogether, saying that they “perpetuate mass incarceration that is felt predominantly by Black and brown Virginians,” a stance he had laid out in an interview with the Political Report in 2019. Descano also wrote a commentary in the Richmond Times-Dispatch in December making the case against mandatory minimums.
A series of public defenders who ran on changing the criminal legal system won judicial elections in Clark County (Las Vegas) in November, but since then they are facing some pushback: Sam Mellins reports in the Political Report that DA “Steve Wolfson, who in the past has resisted reform proposals to end cash bail and the death penalty, has called for Nevada to move to replace judicial elections with appointments. He raised the issue in direct response to the public defenders winning judicial elections.”
Amid the summer protests against police brutality and racial injustice, the police department in Portsmouth, Virginia, engaged in retaliation against local Black leaders. It served felony warrants for conspiring against Confederate monuments to a state senator, public defenders, and a local leader of the NAACP. The police also named Commonwealth’s Attorney Stephanie Morales as a “witness,” which made it tougher for Morales to dismiss the charges that the officers filed directly.
The Virginian-Pilot reported that these actions are part of a long history of attempts to overthrow Black political leadership in Portsmouth.
But the police attempts to overthrow local government have since hit roadblocks. In October, a judge ruled against the police efforts to drag Morales into the case. And this in turn has enabled her to re-establish her prosecutorial discretion.
Morales announced in November that she was dropping all charges the police filed in the summer, including those against Senator Louise Lucas and public defenders. “Plainly stated, my name is on the door, and as long as my Portsmouth family keeps it there, I will fight tirelessly with them and for them against systemic injustice, at every turn,” Morales tweeted. (See also: In July, Morales helped form a statewide progressive alliance.)
Sarah George, the state’s attorney of Chittenden County (Burlington), announced that her office has stopped seeking cash bail. “Cash Bail is Ransom,” she tweeted. “We’re holding poor people in jail and completely destabilizing their lives and the lives of their families to put them in a place that is always violent and dangerous and prone to create more trauma and harm,” she told Seven Days.
George is the second prosecutor to roll out such a policy, after San Francisco DA Chesa Boudin. The Political Report explained last year why Boudin’s (and now George’s) policy goes further than those of other DAs associated with reform. Judges make the final decision, but George said she has worked with defense attorneys to overturn those who are imposing bail.
George, again like Boudin, said her office will be recommending to detain people pretrial if it determines that releasing them would be dangerous. Such predictive determinations can involve biases and inequalities, The Appeal has reported, regardless of whether algorithms are used. George’s statement outlines the conditions when her office “may seek detention,” specifically “where someone is charged with a violent felony, the evidence of guilt is great, and we believe that poses a serious public safety threat that cannot be immediately negated.”
San Francisco DA Chesa Boudin announced two new initiatives in September to review past convictions. An innocence commission will review claims of wrongful convictions for possible exoneration; separately, a post-conviction unit will review claims of excessive sentencing then determine whether to ask the court system to reduce someone’s sentence. The latter initiative is made possible by a law that California adopted in 2018 that significantly expanded prosecutors’ ability to revisit sentences they believe to be harsh; this legal authority is mostly lacking nationally.
Lara Bazelon, a professor of law at the University of San Francisco, will chair the Innocence Commission. “We will present factual findings and legal conclusions to the DA in a written memorandum,” Bazelon told The Appeal: Political Report. “The DA has made it clear he won’t use procedural technicalities to block an exoneration and that what we decide will be given great weight.”
Bazelon also emphasizes the importance of reducing sentences. “DA Boudin … understands that we will never meaningfully address the problem of mass incarceration until we consider the hard cases,” she said. She added that “post-conviction unit will review more than 900 cases where prisoners in California are bringing claims that their sentences were excessive.”
Thousands were arrested during the nationwide Black Lives Matter protests that followed the killing of George Floyd in Minneapolis, and many of these cases are now in the hands of prosecutors.
Many prosecutors are using gang laws to aggressively prosecute people who participated in the protests against police brutality over the summer, The Appeal reports in an article about decisions made by Salt Lake County DA Sim Gill and also federal prosecutors in Oregon and New York. Gill, a Democrat, has drawn attention for seeking aggressive charges and enhancements against protesters.
In Iowa, the office of Democratic Polk County Attorney John Sarcone has filed rare charges of unauthorized dissemination of intelligence data against protesters who displayed a police document they allegedly stole from an officer’s back pocket in Des Moines. This carries up to five years in prison.
In Portland, Oregon, Multnomah County DA Mike Schmidt announced this week that his office would “presumptively decline” to prosecute all cases that have to do with participation in a protest that “do not involve deliberate property damage, theft or threat or use of force against another person,” the Willamette Gazette reports.
Wayne County (Detroit) prosecutor Kim Worthy has accumulated a punitive record when it comes to minors sentenced to spend their life in prison without the possibility of parole, The Appeal reports. In adition, local advocates have also been pleading with Worthy to drop charges for gun possession without a permit amid a surge in arrests.
Franklin County DA Matt Fogal, a Republican, drew national attention for saying he is supportive of Black Lives Matter and open to reform; but the PA Post reports he has continued his aggressive policies toward drug possession (as The Appeal has reported in the past) and that he is charging people for low-level marijuana possession.
Cracks are showing in the state associations that lobby on behalf of local prosecutors. These associations thrive on the blurred line between their policy role and their status as professional membership organizations. This has meant that the punitive policies they defend come across as the natural offshoot of having prosecutorial experience.
In July, 11 Virginia prosecutors breached the expectation of a neutral and monolithic law enforcement perspective that advocates for carceral norms. They formed a new association, the Virginia Progressive Prosecutors for Justice, with a stated intention of championing criminal justice reform in the legislature. Read more in the Political Report.
A string of county attorneys have made Maricopa County, home to Phoenix and to nearly 4.5 million people, one of the nation’s bastions of carceral politics, Meg O’Connor writes in the Political Report. “From 2005 to 2010, County Attorney Andrew Thomas encouraged prosecutors to seek the harshest possible sentences. Then, “Bill Montgomery grew into a chief antagonist” of reform” for nearly a decade with punitive sentencing and charging policies of his own. Now, Alistair Adel, who was appointed after Montgomery resigned, is signaling that she will implement a similar outlook. O’Connor also reported in June that, “in her past as a prosecutor in the vehicular crimes unit, Adel sought to send a young man to prison for 71 years for causing a car accident that injured four people, a sentence she said she still stands by today.”
The Black Lives Matter protests combined with June’s Democratic primaries have brought heightened scrutiny to the records of Tompkins County DA Matt Van Houten and Westchester County DA Tony Scarpino. Both faced fire for their handling of allegations or incidents involving police officers; Scarpino’s office kept prosecuting on the basis of the work of police officers who it was told were framing people.
Jeff Rosen, the DA of Santa Clara County, targeted public defender Sajid Khan in June because of a blog post in which Khan wrote that Black Lives Matter protesters should turn their attention to prosecutors. Rosen threatened Khan with a whistleblower complaint, the Washington Post reports. Faced with the intense nationwide blowback that followed, Rosen dropped his complaint against Khan.
As COVID-19 explodes in jails and prisons around the country, prosecutors continue to take varying approaches to their authority to accelerate decarceration.
Many of the debates so far have involved DAs’ approach to facilitating pretrial detention. Reporting on North Carolina, though, the News & Observer finds that Durham County DA Satana Deberry is going a step further by considering cases of people who are already convicted to recommend reduced sentences. Her peers in Mecklenburg (Charlotte), Orange, and Wake (Raleigh) counties are not doing this.
Allister Adel, the DA of Maricopa County (Phoenix), has been most explicit in rejecting calls to decarcerate, writing that groups were “exploiting a public health emergency to forward a political agenda.”
Similar contrasts have exploded in Massachusetts, Will Isenberg wrote in a commentary in The Appeal. Seven of the state’s DAs submitted a joint brief against calls for decarceration, on the one hand; on the other, Rachael Rollins, Boston’s DA, “has her office working with the defense bar to identify people in the criminal legal system who are vulnerable, or held on low bail” to facilitate release, Isenberg wrote.
But Isenberg also called on Massachusetts DAs, including Rollins, to go further and use their authority to nolle prosse cases. In addition, Elizabeth Weill-Greenberg reports in The Appeal on the case of a man with leukemia and who faces a murder charge whom a judge allowed to wait for trialfrom home over the objections of Rollins’s office.
Texas DAs have jumped into legal disputes over whether to increase pretrial release, on both sides of the matter. Kim Ogg, the DA of Harris County (Houston), filed an emergency motion this month to block judges from considering “public health matters” when deciding bail. But the DAs of Bexar, Dallas, Nueces, and Fort Bend counties filed an amicus brief in support of a lawsuit against Governor Greg Abbott’s order setting back local release efforts.
The public defender’s office in Cook County (Chicago) says it has identified 3,000 candidates for pretrial release, but that the office of State’s Attorney Kim Foxx has opposed release for 83 percent of them. The coronavirus has spread disastrously in the Cook County jail. Finally, California DAs are circumventing state rules that reduced bail for many offenses to $0, HuffPost reports, spotlighting Los Angeles, Kern, Fresno, Yolo, and San Diego counties. One strategy has been to upcharge certain theft offenses as looting.
Queens DA Melinda Katz created a new unit that will prosecute people who pay for sex, as well as sex and labor traffickers, the Queens Eagle reports. Sex work was a major issue in the borough’s high-profile DA race last year; Tiffany Cabán, a public defender who came close to winning, ran on a proposal to fully decriminalize sex work, including for customers.
District attorneys have presented a unanimous front to defeat criminal justice reforms in the state legislature, reports the Appeal: Political Report.
That includes a bill that would have lowered drug possession charges to the level of misdemeanors, significantly reducing penalties, as well as an an overhaul of probation and parole rules.
As the COVID-19 crisis began and the threat to jails and prisons became clear, DAs faced a choice of whether they would facilitate or hinder efforts to lower incarceration. Our mid-March update showed that some responded with measures to reduce prosecutions, while others doubled down on their punitive approaches. Since then, court systems have suspended their activities and jail and prison cases of COVID-19 continue to rise, but many prosecutors are still pursuing policies that keep people in detention.
Kira Lerner reported in The Appeal that in Fairfax County, Virginia’s largest, DA Steve Descano’s office is, in some cases, actively opposing efforts to get people awaiting trial released from jail. Descano was elected on a reform platform in 2019. By contrast, in nearby Arlington, where DA Parisa Dehghani-Tafti also won on a reform platform, “prosecutors are mostly siding with public defenders and arguing that people should not be held pretrial,” Lerner writes.
The Washington Post also reported on prosecutors in Virginia and Maryland (Charles County’s Anthony Covington, Chesapeake County’s Nancy Parr, and Hampton County’s Anton Bell) fighting efforts to release people due to COVID-19. New York City’s five DAs chose to write a letter to Mayor Bill de Blasio questioning his release efforts and accusing him of putting the community at risk. And Los Angeles DA Jackie Lacey was criticized by challenger George Gascón for continuing to prosecute low-level offenses like panhandling or drinking in public; these decisions “will very possibly cost lives,” he said.
In Massachusetts, a petition filed by the Public Defender Agency of Massachusetts and the ACLU of Massachusetts has split the state’s 11 DAs along now-predictable lines. Rachael Rollins (Suffolk/Boston), Andrea Harrington (Berkshire), Marian Ryan (Middlesex), and David Sullivan (Northwestern), asked the court to go further; the others disputed the need for any judicial intervention.
Nationwide: the COVID-19 response
Jails and prisons are risky spaces during the COVID-19 pandemic, and that puts spotlight on DAs. Will they reduce exposure through their charging decisions and bail recommendation? Or will they fight to keep detained pretrial and prosecute defendants at a time defense counsels are facing major challenges?
As of March 20th, some DAs have rolled out initial changes, curbing practices that advocates have long denounced. Baltimore‘s prosecutor Marilyn Mosby dropped all charges for drug possession, prostitution, trespassing, and more. Brooklyn’s Eric Gonzalez said he would stop prosecuting “low-level offenses that don’t jeopardize public safety,” while Seattle’s Dan Satteberg said his office would only file “in-custody violent crimes.” In Louisville, Kentucky, prosecutors and public defenders partnered to obtain the release of 110 people held pretrial. Philadelphia’s DA Larry Krasner said his office would not seek cash bail over misdemeanors and felonies classified as nonviolent, and that he would work with public defenders to review requests to lift detainers on those held for technical parole violations Top prosecutors in St. Louis announced similar measures on pretrial detention. San Francisco’s DA Chesa Boudin directed his staff to design plea deals that would detain fewer people.
These policies are in stark contrast to those of DAs with a more punitive outlook. New Orleans DA Leon Cannizzaro is denying requests for people to be released pretrial, and arguing that people who would be released could infect others. The Louisiana DA’s association is also calling to suspend speedy trial rules. This combination could expand pretrial detention, including when people are too poor to afford bail, and leave people in dangerous conditions.
Prosecutorial discretion is an ironclad feature of the U.S. criminal legal system, and DAs’ tough-on-crime policy preferences contributed to fueling mass incarceration. But now that reform-minded DAs are taking office around the country and setting less punitive policies, other actors are abruptly calling into question their discretion to control who to charge and how.
The latest chapter in this ongoing saga: Former public defender Parisa Dehghani-Tafti took office in January as the top prosecutor in Arlington County, Virginia. In early March, the Circuit Court for Arlington County issued an order that makes it harder for Dehghani-Tafti to pursue her goal of prosecuting fewer cases, or of pursuing them in alternative ways.
The order requires her office to “file motions stating all the factual reasons when they amend indictments, decide not to prosecute a case or dismiss charges,” the Washington Post’s editorial board writes in a scathing article denouncing the judges’ “unheard of” move. The court, in other words, is countering attempts to prosecute less with layers of paperwork.
The Post adds: “Was it really necessary for the court to be briefed—with a 28-page filing from the public defender—about the decision not to prosecute someone found with a small amount of marijuana after making an illegal right turn on red, who was later able to prove that his medical conditions authorized his possession of the drug?”
Queens, New York
David Brand reports in the Queens Eagle on what the state’s new discovery reform has changed in Queens. Until this year, many defendants never had access to the material that prosecutors had against them since they were not entitled to the material during plea negotiations. That has changed because of a new requirement that prosecutors share evidence like witness statements within 15 days of a defendant’s first court appearance. As a result, Brand writes, the pace of trials has slowed because “defendants now get a better sense of what prosecutors have, or don’t have, against them.” Brand talks to assistant DAs who complain that compiling materials has increased their workload. But Scott Levy of the Bronx Defenders said in October, “What these reforms really say is that you aren’t allowed to prosecute someone unless you are able to provide this transparency and fairness. If you can’t, maybe you shouldn’t be bringing all these cases in the first place.”
These complaints are just the tip of the iceberg of DAs’ offensive against the new reforms. Nick Pinto wrote an investigation in The Intercept this week on state DAs and police chiefs’ all-out lobbying against the state’s bail reform.
San Francisco, California
San Francisco DA Chesa Boudin, who won in 2019 on a decarceral platform, has rolled out a new policy that “significantly restricts” the use of sentencing enhancements, Elizabeth Weill-Greenberg reports in The Appeal. These include three-strike enhancements, and enhancements that increase people’s sentences over allegations of gang affiliation, which are racially discriminatory.
Boudin called it harmful to lengthen people’s sentences because they’ve had prior convictions. “For us to punish people more harshly because we collectively failed to rehabilitate them, because we collectively set up these roadblocks and obstacles for them,” he said. But Boudin also said there could be exceptions to the policy, calling it a presumption.
This is at least the third in a series of major policy announcements since Boudin has taken office. In January, he unveiled a policy that forbids prosecutors from requesting money bail, and restricts when prosecutors can seek pretrial detention. He also set up a diversion program under which some people who are the parents or primary caregivers of a child will be eligible for alternatives to incarceration.
Cook County, Illinois
A new study found that prison admissions for Black and Latinx people declined by 36 percent between 2012 and 2019 in Cook County. This finding comports with other studies that have shown a reduction in prison admissions during Kim Foxx’s tenure as state’s attorney; this stems in part from policies such as a presumption of no incarceration for drug possession, and her shifting more cases to the misdemeanor level if not dropping them.
Harris County, Texas
District Attorney Kim Ogg’s office announced this week that it would use private law firm attorneys as pro bono prosecutors in misdemeanor cases. “If [these cases] are so minor, so inconsequential, as to justify having non-prosecutors manage them, why not just drop them altogether?” Sarah Lustbader asks in the Daily Appeal.
Chesa Boudin unveiled a new bail policy that forbids prosecutors from requesting money bail under any circumstances. It also restricts when prosecutors can ask for pretrial detention, setting a presumption against it and only allowing them to request it for people who face certain violent charges and who prosecutors believe pose a high risk of violence or flight. Comparing Boudin’s policy to that of his peers, including in Boston and Philly, Colin Dolye writes in the Political Report that this is “easily the most progressive prosecutor bail policy in the country… In San Francisco, people’s freedom will not depend on their ability to post bail.” But he also warns this “reveals how tough-on-crime norms limit the contemporary vision of progressive prosecution” since “Boudin’s office will continue the practice of assessing risk to justify incarcerating legally innocent people for their future crimes.”
Philadelphia DA Larry Krasner has used diversionary programs for some people arrested for unlicensed gun possession. This challenges the common idea that effective gun control requires dialing up punishments.
In the New Republic, Alex Yablon reports on Krasner’s policies, and his “thesis” that “the sustained alienation of marginalized communities is a strong factor in Philadelphia’s gun violence crisis.”
Arlington and Fairfax counties, Virginia
Parisa Dehghani-Tafti and Steve Descano, the new prosecutors of Virginia’s Arlington and Fairfax counties, announced in early January that they will stop prosecuting adults for marijuana possession.
Both campaigned on this reform during their victorious challenges to incumbent prosecutors in 2019, and both have kept up a public case for reform since taking over as prosecutor.
Still, questions remain about the scope of these policies, and about which marijuana possession cases, if any, prosecutors may still choose to file, the Political Report writes.
San Joaquin County, California
San Joaquin County District Attorney Tori Salazar has left the California District Attorneys Association (CDAA), Salazar is the first DA to leave a statewide association over its opposition to criminal justice reforms since Philadelphia’s Larry Krasner quit Pennsylvania in 2018.
The Political Report talked to Salazar about why she left the CDAA and why conventional approaches to prosecution are not working. “We looked at what the CDAA was doing, and we just felt that they were in opposition to almost all change that the voters of California had asked us to enact,” she said.
Chesa Boudin, the new DA of San Francisco, has rolled out a new pretrial diversion program, under which some people who are the parents or primary caregivers of a child will be eligible for alternatives to incarceration.
Vaidya Gullapalli interviewed Chesa Boudin in the Daily Appeal about this new policy. Read the Q&A here.
This initiative implements a new 2019 law (Senate Bill 394), which authorizes each county to set up such a program to fight family separation. But this creation requires the agreement and cooperation of the local DA. Boudin’s embrace contrasts with the resistance of other state prosecutors like Los Angeles’s Jackie Lacey.
Melinda Katz, who became DA on Jan. 7, created a conviction integrity unit that will review claims of wrongful convictions. Queens was the only New York City borough to lack such a unit. She appointed Bryce Benjet, an attorney with the Innocence Project, to head the unit. Katz also changed plea bargaining practices, ending her predecessor’s requirement that people waive their rights to a grand jury in order to enter plea discussions, and also ending restrictions on allowing defendants to plead to anything but the top count of indictment.
Aaron Morrison reported in The Appeal last week, though, that prosecutors were still requesting cash bail despite Katz’s promise to eliminate such recommendations. Katz reiterated this promise in her inauguration speech, but said she was not yet ready to fully implement it.
Baltimore, Maryland and Brooklyn, New York
Baltimore City State’s Attorney Marilyn Mosby shared with a state commission a list of 305 officers (nearly 15 percent of the police force) with credibility issues that her office will not call as witnesses. This comes a month after Brooklyn DA Eric Gonzalez released a partial list of officers accused of dishonesty to Gothamist/WNYC; he would only say that these officers would not be called to testify in cases if they are a “sole witness.”
Philadelphia DA Larry Krasner will divert all simple drug possession, Samantha Melamed reports in the Philadelphia Inquirer: The policy is to “withdraw charges for those who show proof they’re in drug treatment” and “start all possession cases on a diversionary track, connecting defendants to court-accredited treatment providers.” Convictions in such cases are down 45 percent since Krasner became DA, and his office now expects a bigger drop. Critics say implementation has been uneven, and that more should be done to not arrest and not criminalize people for any drug possession.
Ingham and Oakland Counties, Michigan
Since the U.S. Supreme Court banned mandatory life without the possibility of parole for minors, states have had to review the sentences of their juvenile lifers. But Elizabeth Weill-Greenberg reports in The Appeal that Oakland County prosecutor Jessica Cooper has asked courts to reimpose the sentence in 43 out of 48 cases eligible for review. The ACLU’s Udi Ofer called this “inhumane and cruel.” By contrast, Ingham County (Lansing) prosecutor Carol Siemon told The Appeal she would never seek life without the possibility of parole sentences for minors. Siemon supported the resentencing of the county’s two juvenile lifers, one of whom was released.
Chittenden County, Vermont
“Prison rape is a longstanding emergency, affecting incarcerated men and women,” Vaidya Gullapalli writes in The Appeal, but “prosecutors were allowed to remain largely oblivious of and indifferent to what happens inside these facilities.” Last week, in response to reporting of allegations of sexual assault by corrections officers at a women’s prison, Chittenden County prosecutor Sarah Fair George said she would review the sentences of people detained there to determine whether to release them. Gullapalli writes that this is noteworthy because it is “not to simply call for punishment for the individual officers but to think about how to take responsibility for the women her office sent there. ”
Thirty-nine elected prosecutors signed a new pledge to visit a prison with their staff last week. Jails and prisons can be “violent and unhealthy places,” the letter states. “We cannot ignore the fact that the conditions we subject people to necessarily impact them, their families, and the health and safety of our communities.” (See also: When I interviewed Vermont prosecutor Sarah Fair George about her policy of requiring that her staff visit prison in August, she described it as a bid to change prosecutorial practices and get her staff to seek less incarceration.)
Suffolk County, Massachusetts
Boston police are using undercover Snapchat accounts, and local advocates say that every instance they have identified involves a Black or Latinx person. A court ordered the police to disclose more information, but local law enforcement as well as the office of Suffolk County DA Rachael Rollins have been fighting this order, Elizabeth Weill-Greenberg reports in The Appeal.
Douglas County, Kansas and Travis County, Texas
Women who try to report sexual assault in Lawrence, Kansas, are frequently doubted and retraumatized, Katie Bernard reports in a remarkable Kansas City Star story. Bernard found that Douglas County DA Charles Branson has repeatedly charged women with falsely reporting an assault. In Texas, Travis County (Austin) DA Margaret Moore faces a lawsuit that alleges she is mishandling sexual assault incidents, Kira Lerner reports in The Appeal. Branson and Moore are both Democrats up for re-election in 2020.
Franklin and Cuyahoga counties, Ohio
The prosecutors of Ohio’s two biggest counties are staunch death penalty proponents, Joshua Vaughn reports in The Appeal. Ron O’Brien, the Republican DA of Franklin County (Columbus), and Michael O’Malley, the Democratic DA of Cuyahoga County (Cleveland), have frequently asked for the death penalty. (Both are up for re-election in 2020.) This year, they also lobbied against a bipartisan bill that would have banned the death penalty for people with a mental illness at the time of the crime; the bill passed the GOP-run House, then stalled.
Voting rights in Maine and Vermont, and nationally
Each time prosecutors decide whether to charge someone with a felony or a misdemeanor, or whether to offer someone a deal that avoids incarceration, or how long a prison sentence to seek, they are shifting the voting public. But laws in Maine and Vermont do not give public officials discretion to police who should vote.
The Political Report reached out to all the prosecutors in Maine and Vermont, and to Department of Corrections officers, to discuss voting rights. Those who answered either defended prison voting as a boon to the criminal legal system, or shrugged it off as a non-issue.
Read more in the Political Report.
In response, some prosecutors (as well as DA hopefuls) endorsed ending disenfranchisement or amplified remarks that voting rights can empower incarcerated people, including Marilyn Mosby (Maryland), Rachael Rollins (Massachusetts), Justin Kollar (Hawaii), Parisa Dehghani-Tafti (Virginia), and Larry Krasner (Pennsylvania). “In 2020, let’s recommit to finally severing Jim Crow from our present, including by ending the evils of voter suppression and disenfranchisement,” Krasner tweeted.
Los Angeles County, California
In The Appeal, Jessica Pishko chronicles problems that have surfaced under DA Jackie Lacey’s tenure. Lacey has also opposed numerous statewide reforms; everyone she has sent to death row has been a person of color; and activists fault her failure to hold police accountable. “Over 400 people have been killed by law enforcement or died in custody” during her tenure, Pishko writes, but she “hasn’t charged a single LAPD officer for a shooting.” In June, The Appeal’s Raven Rakia also reported on Lacey’s record toward people with mental illness.
Calcasieu Parish, Louisiana
In Calcasieu Parish, defendants can donate money or a gift card to a foundation set up by DA John DeRosier “in order to buy their way out of community service,” Radley Balko reports in the Washington Post. This was said to have generated hundreds of thousands of dollars for his foundation; DeRosier subsequently distributed those gift cards to friends and supporters.
California, Mississippi, Virginia, and more
The movement to elect prosecutors broke new ground on Tuesday when a wave of decarceral candidates won in suburban or rural counties across the nation.
The Election Day results overhauled Virginia’s landscape in particular, broadening the geography of decarceration. Candidates who ran on reform platforms won in at least four populous counties. Read more on Virginia. You can also read our Q&As with the incoming prosecutors of Albemarle (Jim Hingeley), Arlington (Parisa Dehghani-Tafti), Fairfax (Steve Descano), and Loudoun (Buta Biberaj), and Prince William Counties (Amy Ashworth).
And it’s not just Virginia. Reform candidates secured victories in suburban Pennsylvania and rural Mississippi as well.
In Queens, New York, Melinda Katz won the general election, five months after securing the Democratic nomination. She has pledged to create the borough’s first conviction integrity unit.
In San Francisco, voters elected Chesa Boudin, a public defender who ran on never seeking cash bail, promoting restorative justice and alternatives to incarceration, creating a unit to investigate ICE agents, and not prosecuting so-called qualify of life crimes, among other policies. Read more.
Iberia Parish, Louisiana
Lori Landry, a Black judge in Iberia Parish, criticized the overincarceration of Black Louisianans. Prosecutors in DA Bo Duhé’s office are now trying to get her removed from hundreds of cases for being biased. ” The truth is that people with biases are allowed to serve as judges and jurors in our system, but only if they have the biases considered correct, which means biases in favor of the prosecution,” Sarah Lustbader writes in the Daily Appeal.
Berkshire and Suffolk counties, Massachusetts
Both elected in 2018 on reform platforms, Harrington and Rollins are implementing different pretrial detention policies, The Appeal’s Joshua Vaughn reported. Vaughn identified vast disparities in how often state prosecutors are requesting that someone be detained pretrial on the grounds that they are dangerous. Harrington has overseen a large increase in such requests this year. She attributes this to her policy of mostly ending the use of cash bail, and relying on dangerousness hearings instead. Advocates say that stymies the goal of reducing pretrial detention.
California’s exceptionally punitive gang suppression laws criminalize non-criminal behavior, remove procedural protections at trial, and lengthen prison sentences. A sweeping gang database almost exclusively targets people of color. DAs employ these statutes, though their discretion enables them not to. Emily Galvin-Almanza reports in The Appeal on the use that Los Angeles DA Jackie Lacey is making of these laws.
Salt Lake County, Utah
Salt Lake County DA Sim Gill will retroactively reduce the criminal convictions of about 12,000 people (for some, from the felony to the misdemeanor level). This will expand the pool of people eligible to have their records cleared, just as Utah prepares to implement a “Clean Slate” law that will automate part of its expungement process.
Philadelphia continues to feature some of the country’s biggest DA reforms, and biggest pushbacks. Both were on full display this month.
DA Larry Krasner launched a data transparency initiative: a new website that features daily information on prosecutions. It has yet to include demographic information, which is a crucial reason for transparency demands. But it documents large declines in the volume of prosecutions under Krasner, matching earlier commitments.
This includes a drop of more than 85 percent in the number of retail theft cases charged, and smaller drops in other property crimes charged. His office says the most important finding is the reduction in “future years of incarceration or supervision” (the projected length of sentences served).
Meanwhile, The Intercept’s Akela Lacy reports that the office of Democratic Attorney General Josh Shapiro encouraged the press to cover Krasner more negatively and raised questions to journalists about his reforms’ safety risks.
Marion County, Indiana
Marion County (home to Indianapolis) joined the growing tide of jurisdictions that will no longer prosecute people for simple marijuana possession. Prosecutor Ryan Mears said Monday that his office is now declining to prosecute if the amount possessed is under one ounce. He announced this after just one week in office. Prosecutor Terry Curry resigned in late September, and a Democratic caucus will soon determine who finishes his term. Mears is one of two main contenders, alongside Tim Moriarty, who works for the Indianapolis mayor. Moriarty said in a statement that he would keep this new policy.
Prosecutors have rolled out similar policies of declining marijuana cases this year in Bexar County, Texas (San Antonio); Jefferson County, Kentucky (Louisville); and St. Louis. But Marilyn Mosby (Baltimore) and Rachael Rollins (Boston) have gone further: Their policy is to decline pot possession cases with no limit on the quantity.
Kern County, California
Kern County DA Cynthia Zimmer and Sheriff Donny Youngblood want to address an increase in homelessness by locking homeless people in jail. The idea is to sentence homeless people to jail for misdemeanor drug offenses or for trespassing, even though such cases do not typically lead to jail or prison anymore, the Los Angeles Times reports. This punitive plan would require other local officials to cooperate. Bakersfield’s city government is considering allocating $300,000 a year for two assistant district attorneys to prosecute these charges rather than issuing tickets. In addition, local judges must be willing to issue the maximum allowable sentence.
Kate Chatfield writes in The Appeal that the Kern County plan would “defy a 1975 state Supreme Court precedent that says law enforcement cannot intentionally discriminate against a person or group of people.”
Alexandria, Virginia, and Jefferson County, Kentucky
A growing number of prosecutors are limiting or ending the prosecution of marijuana possession. The latest to join this trend are in Alexandria, Virginia, and Louisville, Kentucky. The Political Report reviews these reforms, and asks what’s next.
Bryan Porter, the commonwealth’s attorney of Alexandria (in Northern Virginia), announced that people charged with simple marijuana possession will be eligible for pretrial diversion. Read more.
In Jefferson County, Kentucky (home to Louisville), County Attorney Mike O’Connell rolled out a policy of no longer prosecuting people for possessing up to one ounce of marijuana. Read more.
Kauai County, Hawaii
Justin Kollar, the chief prosecutor of Kauai County, rolled out a new policy to lessen penalties for driving without a license or insurance. These offenses are often linked to poverty and an inability to pay court debt, which triggers license suspensions. Elsewhere in the country, some DAs have gone a step further: They have said they are altogether declining to prosecute cases of driving on a suspended license when the suspension is due to unpaid debt. Read more in the Political Report.
Prince George’s County, Maryland
Aisha Braveboy, the state’s attorney of Prince George’s County, announced in a speech that she would no. longer seek cash bail as a condition of release. Reform advocates express optimism about the reform in the Washington Post. They also note implementation will be crucial. Reducing pretrial detention will depend on the judges who actually set bond, and who could deny people pretrial release. Also, what replaces cash bail will matter greatly. Read more in the Political Report.
U.S. District Judge Lee Rosenthal gave preliminary approval last week to a settlement that restructures the bail system in Texas’s Harris County, home of Houston. And she did it over the objections of Harris County DA Kim Ogg. Rosenthal offered a stern rebuke of Ogg’s bid to stop the settlement by reviving the Willie Horton strategy. She wrote in her ruling that briefs filed against the settlement, including Ogg’s, were “essentially an argument for incarcerating every arrestee and defendant until trial or other disposition.” Read more in the Appeal: Political Report.
St. Louis, Missouri
St. Louis Circuit Attorney Kim Gardner is trying to vacate a murder conviction because of prosecutorial and police misconduct. A long list of issues in Lamar Johnson’s 1995 trial was uncovered by a conviction integrity unit (CIU), and 43 reform-minded prosecutors filed an amicus brief in support of Gardner. But a judge has refused to grant Gardner’s motion for a new trial, arguing that a circuit attorney has no such authority and that deadlines long expired. The Appeal’s Vaidya Gullapalli reminds us that few prosecutors set up CIUs, and those that do face intense blowback.
Earlier this year, a study measured the effects of Philadelphia DA Larry Krasner’s bail reform. Now, two publications probed the effects of other reforms adopted by Krasner:
The Appeal reports that the number of minors charged as adults was halved in Krasner’s first year in office. Joshua Vaughn found that Krasner’s staff uses its charging discretion to circumvent the state’s requirement that minors be automatically treated as adults when charged with certain offenses. Krasner also said he would support eliminating automatic adult prosecution, as Oregon did this summer.
CBS News reports on a string of nine exonerations by the county’s Conviction Integrity Unit. “There was a culture at various times of win at all cost,” said Krasner, who strengthened the unit’s mission of investigating wrongful convictions. “And if that meant that you were gonna take the document that suggested there was a different suspect, a document that the Constitution requires you, as a prosecutor, to turn over to the defense, and you were gonna shred it, you did.”
In a speech at the Fraternal Order of Police conference on Monday, U.S. Attorney General William Barr delivered a wide-ranging attack against efforts for police oversight and against reform-minded prosecutors, whom he called “anti-law enforcement DAs.” Read the annotated and fact-checked version of the speech in The Appeal.
In addition, Fordham Law School professor John Pfaff writes in The Appeal that “Barr is out of step with the data and the desires of the people who have elected progressive prosecutors.”
Fair and Just Prosecution, an organization that advocates for criminal justice reform, released a statement answering Barr signed by 30 current elected prosecutors, who fault him for “using rhetoric that harkens back to the parochial ‘tough on crime’ narrative of past decades that stoked fear and impeded progress.”
And a Virginia candidate and two sitting prosecutors published a joint op-ed in the Washington Post that offers a manifesto of sorts for reform prosecutors.
Harris County (Houston) is on the verge of restructuring its bail system, but DA Kim Ogg just threw a wrench in the planned reform. To recap: A federal judge struck down the county’s bail rules for misdemeanors in 2017, and this year officials unveiled a settlement that expands public defense services and provides for the pretrial release of most people arrested for misdemeanors. But last week Ogg filed a legal brief objecting to the settlement, in part over its perceived leniency toward defendants. Audia Jones, who is challenging Ogg in the county’s 2020 DA race, told The Appeal in March that she was “all for” the settlement, and would favor also reforming bail for felonies.
King County, Washington
Seattle has steadily moved toward decriminalizing drugs, and Nick Kristof writes in the New York Times about the policies implemented by local officials, including Prosecuting Attorney Dan Satterberg, to promote a public health response to addiction. “Anyone caught here with a small amount of drugs — even heroin — isn’t typically prosecuted. Instead, that person is steered toward social services to get help,” Kristof writes. A program launched in 2011 to divert people toward treatment was expanded last year when Satterberg announced he would stop prosecuting possession of less than one gram of any drug.
Santa Clara County, California
The office of Santa Clara County DA Jeff Rosen announced that it will decline to prosecute many cases of simple drug possession. It will seek drug possession charges if they deem it accompanied by other offenses, or if it is a person’s third offense within 12 months, and otherwise dismiss charges. In 2018, about 4,500 cases were prosecuted that fit the criteria of cases that will now be declined; that’s 13 percent of all cases charged last year. “We are drawing the line between public health and public safety,” Brian Buckelew, a supervising deputy DA, told KPIX. “The people can get a higher degree of treatment without the stigma, without the conviction, without everything else.”
Orange and Osceola Counties, Florida
State Attorney Aramis Ayala has a new policy meant to reduce prosecutions for drug possession. Prosecuting drug possession “has failed to reduce levels of drug use, dramatically increased the number of individuals incarcerated,” she said in a statement. The policy sets up conditions to outright dismiss drug charges: People need to complete a one-hour course for lower-level charges (including possession of marijuana) to be dropped; for possessing drugs other than marijuana, people need to complete a course and community service, and not be rearrested for six months. People may still be diverted toward rehabilitative services if they don’t fulfill those conditions.
Prosecutors who over the last year have announced policies to not prosecute possession of some drugs other than marijuana include Kim Foxx (Chicago), Sarah Fair George (Burlington, Vermont), and Rachael Rollins (Boston). Implementation of such policies is always crucial since prosecutorial discretion remains strong. For instance, these policies generally apply to simple possession, which means possession is not accompanied by another offense. But a prosecutor could respond by making more frequent use of other charges to circumvent it.
Sarah Fair George, prosecutor of Chittenden County (Burlington), has instructed all staff and prosecutors who work in her office to visit the St. Albans prison.
The Political Report talked to George about her initiative, and how it might could change practices in her office. “They spent an hour and a half there and were relieved to get out,” she said. “So let’s imagine how this might impact somebody who is there for six months or a year.”
George said this perspective could curb prosecutors’ reflex to seek incarceration. Read the interview.
Janos Marton, who is running to be Manhattan DA, tweeted approval, as did Justin Kollar, the prosecutor of Hawaii’s Kauai County. “Jail has a visceral impact on all of the senses, and serves as a reminder of the callousness and racism embedded in our criminal legal system,” Marton said. Read more.
A new report shows that reforms implemented by Kim Foxx are paying dividends for decarceration in Cook County. The number of people sentenced to prison or jail declined by 19 percent between 2017 and 2018. Violent crime also declined over that period. Since 2016, Foxx has shifted to using lower-level charges for some offenses. She announced that she would prosecute retail theft as a felony if the value of the property is above $1,000, as opposed to $300 previously. This year, she set a presumption of no incarceration for drug possession charges.
See also: In a large-scale data investigation in Oct. 2019, Matt Daniels took advantage of an unusual data disclosure to assess the scope of Foxx’s reforms. He finds that, since Foxx took office in 2016, her office has declined felony charges in more than 5,000 cases that her predecessor Anita Alvarez would have likely prosecuted at the felony level. This is due to a mix of dropping cases, shifting them to lower misdemeanor charges, and diverting them toward treatment programs. For one, she has dismissed more drug cases than Alvarez; the jump is starkest for the more severe charges like trafficking. For non-drug offenses, Daniels looks only at whether cases were filed as felonies, and finds that “felony prosecutions are trending down for nearly every offense category,” except gun charges.
Cuyahoga County, Ohio
A coalition of local organizations sent a letter to Cuyahoga County (Cleveland) Prosecutor Michael O’Malley demanding that he curb the use of cash bail. “Jailing people who cannot pay bail discriminates against the poor, and it exposes them to needless suffering and even death,” they write.
People held on bail are detained at the Cuyahoga County Jail, where a string of deaths have raised alarms about abusive conditions; even brief jail stints carry major health risks.
San Diego, California
The office of San Diego DA Summer Stephan is systematically resisting reforms adopted by California’s legislature. Let’s review:
1) A law adopted in 2018 enables judges to divert people with mental health issues away from incarceration. But the San Diego Union-Tribune reported last week that Stephan’s office has argued against nearly all diversion requests (95 percent), even though a tiny share of all defendants have made one (0.2 percent of all arraignments). This near-constant opposition to diversion contrasts with Los Angeles; prosecutors there argued against 33 percent of diversion requests over the period reviewed by the Union-Tribune.
2) Stephan is also among the California DAs challenging the constitutionality of another 2018 law, which restricted the felony murder doctrine, and did so retroactively. DA resistance is delaying the resentencing of hundreds.
3) Stephan is even fighting still-nonexistent reforms. The Union-Tribune reported that, as part of plea deal negotiations, Stephan’s office is asking some defendants to forfeit their right to seek a revised sentence based on hypothetical future reforms, even if those are intended to modify past sentences. Assistant DA David Greenberg, who is quoted in each of the articles linked here, defended this waiver in the name of “truth in sentencing.”
Democratic Governor David Ige vetoed bills reforming Hawaii’s criminal legal system, including a measure to restrict civil asset forfeiture. Mitch Roth, the Hawaii County prosecutor, and Keith Kaneshiro, the Honolulu County prosecutor, urged these vetoes; Roth said he “doesn’t know of a single case” in which asset forfeiture has been abused. “There’s longstanding deference to police and law enforcement in our state,” said Mandy Fernandes, policy director of the ACLU of Hawaii. But Justin Kollar, prosecutor of Kauai County, voiced support for reform. Read more in the Political Report.
The Political Report reported in April on a Massachusetts bill that would raise the age of juvenile jurisdiction to 21 from 18. The idea now has prosecutorial support: Three of 11 DAs have endorsed it: Andrea Harrington, Rachael Rollins, and David Sullivan. “By pushing these young people, who research tells us are still developing, into the adult justice system, we are willfully ignoring decades of data and developmental science,” Rollins tweeted.
(See also: Harrington and Rachael Rollins testified in favor of the bill raising the age to 21 in November.)
Only Vermont has raised the age of juvenile jurisdiction above 18.
In legalizing hemp this year, Texas distinguished it from marijuana based on THC concentration: If a product has more than 0.3 percent THC, it is defined as marijuana and is illegal. But an unintended consequence is that marijuana cases now require knowing a product’s THC level, and many DAs say they lack the resources and capacity to make this determination. The DA’s statewide association echoed their warning.
At least five DAs (in Bexar, Harris, Fort Bend, Nueces, and Tarrant counties) have announced that they will no longer prosecute marijuana cases absent a THC concentration test. These DAs have also dismissed hundreds of marijuana cases since the law came into effect in June. Governor Greg Abbott and other GOP officials are contesting this.
They say pot prosecutions can proceed “with the tried-and-true use of circumstantial evidence.” But Dallas County DA John Creuzot replied his duty is “to ensure that people are not prosecuted for possessing substances that are legal.”
Most DAs in the state’s largest counties are staking a position like Creuzot’s. Exceptions are El Paso’s Jaime Esparza, a Democrat, and Montgomery County’s Brett Ligon Brett Ligon, a Republican. Asked how Ligon’s office would prove a substance is marijuana, a spokesperson told the Political Report that they have identified a private lab capable of conducting tests in Arlington, and that they would order a test only if a case goes to trial (which is rare) or if defendants request it in cases disposed of pretrial.
Philadelphia DA Larry Krasner has asked the Pennsylvania Supreme Court to declare that the death penalty violates the state’s Constitution, Elizabeth Weill-Greenberg reports in The Appeal.
Also, a new law enables the state attorney general to prosecute firearm violations in Philadelphia. The move, which dilutes Krasner’s authority, applies only to Philly and expires in two years, right when Krasner’s current term ends. The GOP sponsor implied to The Intercept that he was motivated by his view that Krasner, who has used probationary programs, was not “enforcing the law.” Democratic Governor Tom Wolf signed the bill into law. In response to the controversy, Attorney General Josh Shapiro tweeted that he did not plan “to use it to act unilaterally or go around DA Krasner.”
Miami-Dade County, Florida
Some of Florida’s Democratic prosecutors are developing plans to mitigate the state’s “poll tax” law, which Republicans adopted this spring to require that people pay off their court fines and fees before regaining the right to vote. Kira Lerner and Daniel Nichanian report in The Appeal that a coalition of Miami-Dade County officials is now saying that most people with felony convictions are likely to be able to vote, despite owing fines and fees. The group includes Miami-Dade County State Attorney Katherine Fernandez Rundle.
Her office is talking to prosecutors elsewhere in the state. The offices of the state attorneys in Broward, Hillsborough, and Palm Beach counties confirmed their interest in a process that would get as many people voting as possible.
Prosecutorial practices were harsher in Queens than elsewhere in the city under Richard Brown, the DA between 1991 and 2019. “If there is room for reform anywhere in the boroughs of New York City, it’s in Queens more than anywhere else,” said Aaron Morrison, a reporter with The Appeal. Morrison has reported in The Appeal on the harsh practices that Brown’s office pursued toward people on probation and parole. He also reported on the lack of a conviction integrity unit. Such units resulted in roughly 60 exonerations nationwide last year. Queens is the only New York City borough without one. Queens is elected a new DA this year.
Cumberland County, Pennsylvania
A new DA in Cumberland County is treating the overdose crisis as a criminal matter rather than a community health issue, Josh Vaughn reports in The Appeal. DA Skip Ebert is choosing to aggressively charge people with homicide if they provide others drugs which they overdose. Ebert casts this strategy as essential to proper punishment and deterrence, but advocates argue that he is targeting friends and family members rather than kingpins and drug dealers, and they point out that his policies dissuade people from calling 911 during overdoses.
Orleans Parish, Louisiana
Leon Cannizzaro, the DA of Orleans Parish,, is the subject of an Intercept investigation on how his office is undermining defendants’ right to counsel, as well as of an Appeal investigation on the harmful effects of his office’s handling of jailhouse informants. Cannizzaro is known for harsh practices. Last month, he said he would pursue a more punitive approach toward minors, even as New Orleans’s youth jail faces overcrowding, Kira Lerner reports in The Appeal.
St. Louis County, Missouri
Wesley Bell, the prosecutor of St. Louis County, is creating a Conviction and Incident Review Unit to investigate police shootings and allegations of misconduct. In 2018, Bell ousted incumbent Bob McCulloch, whose refusal to appoint an independent prosecutor after Michael Brown’s shooting contributed to the 2014 Ferguson protests. The Intercept reports that the board’s mechanics are still uncertain. The board will also review claims of wrongful conviction.
The Philadelphia Bail Fund released a report showing Philadelphia prosecutors seek high bail amounts, and questioning the speed at which Larry Krasner’s office is reforming bail, Bryce Covert reports in The Appeal. “It indicates there’s room to move forward and do more,” Krasner’s office told Covert.
Arlington County, Virginia
Arlington County Commonwealth Attorney Theo Stamos has a history of harsh prosecutorial practices toward minors, Kira Lerner reports in The Appeal. Stamos lost in the June Democratic primary against a candidate who ran on a reform platform.
Chicago and San Francisco
Kim Foxx, the prosecutor of Cook County, Illinois (Chicago) and George Gascón, the prosecutor of San Francisco, California, have each launched new initiatives to improve their office’s transparency and release years worth of prosecutorial data. Sarah Lustbader writes in the Daily Appeal that this is part of a new transparency wave.
The Supreme Court overturned the death sentence of Curtis Flowers because of the racially discriminatory jury selection practices of DA Doug Evans. The court stressed how unique the case was, but Sarah Lustbader explains that what makes this case so important is that it is anything but an outlier. (Evans is running unopposed this year.) See also: In November 2019, civil rights groups filed a proposed class action lawsuit against Evans for illegaly striking Black jurors
As draconian restrictions on reproductive rights spread nationwide, some Georgia DAs like DeKalb County’s Sherry Boston say they will not use prosecute people using these new laws; others like Gwinnett County’s Danny Porter say they would specifically not prosecute women who seek an abortion.
Sarah Lustbader writes in the Daily Appeal that prosecutors have become an “unlikely line of defense against abortion bans.”
Natasha Irving, the DA of Knox, Lincoln, Sagadahoc, and Waldo counties, announced new policies to expand the use of restorative justice, a practice that involves addressing harm outside traditional legal settings by involving defendants and people affected by an alleged crime. (The Restorative Justice Project of the Midcoast operates in this area of Maine.) Beth Brogan reports in the Bangor Daily News that Irving campaigned on expanding restorative justice in the 2018 election. Irving also announced that she will expand the use of pre-conviction diversion programs for lower-level offenses.
Maricopa County, Arizona
Maricopa County prosecutor Bill Montgomery has faces accusations that he operates in secrecy and withholds information, Elizabeth Weill-Greenberg reports in The Appeal. The ACLU is now suing him for failing to comply with a public records request. In addition, bills to overhaul the state’s legal system derailed in the 2019 session, and state advocates have laid blame on Montgomery’s influence.
Durham County, North Carolina
Durham County DA Satana Deberry, elected in 2018, is rolling out new policies to reduce pretrial incarceration. She is restricting arrests over a failure to appear in court and narrowing the use of cash bail, a practice that leaves poor people in jail because of an inability to afford a payment. Her office states that only “in rare circumstances” should making a financial payment be a condition for pretrial release. Read more in the Political Report.
North Carolina revokes the driver’s licenses of people who fail to pay court fees and fines, with no regard for financial ability. Durham is taking action this year through its Second Chance Driving Project. DA Satana Deberry has cleared tens of thousands of traffic cases this year, and she has asked courts to clear thousands of fines and fees that are more than two years old. Parts of this initiative were launched under her predecessor, Roger Echols. It will result in thousands regaining their eligibility to have a license, though informing them of this is yet another challenge. The Political Report writes on broader efforts to counter driving license suspensions in North Carolina.
New York’s legislature reformed the state’s criminal legal system by adopting a slate of changes that reformers have long championed. The state required prosecutors to share information with the defense within 15 days, ended cash bail for many categories of offenses, provided for speedier trials, and acted for some convictions to not trigger deportation. But advocates who worked to get them passed say that the DAs who will be elected in November 2019 will still face major decisions on each of those issues. For instance, they can adopt stronger discovery rules within their office than what the law mandates. Read more in the Political Report.
Dallas County, Texas
Dallas County DA John Creuzot announced a big package of reforms in an open letter. These include no longer prosecuting first-time arrests for marijuana possession and theft of “necessary items” whose value is under $750. He also said he will shorten probation and reduce incarceration for people who violate some of their probation terms. To cut pretrial detention, he instituted a presumptive policy of asking for people to be released without conditions when charged with misdemeanors and some low-level felonies. Creuzot’s announcement sparked opposition from Republican Governor Greg Abbott and police groups. But some conservatives defended Creuzot.
See also: In Nov. 2019, Ariel Ramchandani profiles Creuzot in The Atlantic, focusing on his policy to decline to prosecute some offenses. But she also writes that “he most wanted to talk about how he might address social crises outside the usual realm of his office, such as mental-health issues and homelessness.” And The Dallas Morning News writes on Creuzot’s push for a “deflection center” to curb the jailing of homeless people over minor offenses.
Utah County, Utah
Jessica Miller reports in the Salt Lake Tribune on reforms announced by David Leavitt, the new prosecutor of populous Utah County. Leavitt intends to create precharge diversion programs for lower-level offenses because he thinks existing approaches to diversion are too selective. “Leavitt calculated that it’s statistically more probable for an applicant to be admitted into Harvard University than it is for an arrested person to get into 4th District drug court,” Miller writes. He also intends to set up a conviction integrity unit within his office.
Utah County officials considered creating an external review board last year but tabled that proposal.
Macomb County, Michigan
County Prosecutor Eric Smith is under investigation by the state attorney general for how he allegedly spent asset forfeiture funds. He is accused of inappropriately using the funds to pay for parties and furniture, and the state police raided his office last week.
Portsmouth City, Virginia
Portsmouth Commonwealth’s Attorney Stephanie Morales outlined circumstances in which she would no longer prosecute marijuana possession, as Scott Daugherty reports in the Virginian-Pilot. She said that she will still file possession charges when those are accompanied by higher-level charges, as well as against minors.
Bronx, New York
New York City Mayor Bill de Blasio has proposed a pilot program of supervised injection sites in the Bronx, Manhattan, and Brooklyn. The Manhattan and Brooklyn DAs have already pledged their support, and the city needs their permission to launch the program. But Bronx DA Darcel Clark opposes safe injection sites. Raven Rakia reports in The Appeal on the significant implications of Clark’s position.
A new California law restricts felony murder, a doctrine under which someone can be prosecuted for a murder that they did not commit. But many California prosecutors, including Los Angeles DA Jackie Lacey are suing, claiming the law is unconstitutional. Jessica Pishko reports in The Appeal on the long history of prosecutors opposing criminal justice reforms in California.
Three months into her tenure as the DA of Boston (Suffolk County), Rachael Rollins issued a hefty memo that reforms her office’s prosecutorial practices based on a stated goal to “file fewer criminal charges, divert more people into services and treatment, send fewer people to jail and prison.” The Political Report dug into some of Rollins’s announcements; you can read our analysis here.
The memo’s highest profile announcements may be those over bail reform, and the details of how she will implement her much-publicized campaign commitment to adopt a default policy of declining to prosecute 15 offenses, such as drug possession or trespassing.
Attorney General Kathleen Jennings released a memo outlining new policies that state prosecutors should follow to “increase fairness and proportionality in the system” and “reverse” the “high rates of incarceration and recidivism.” The memo, which covers a wide range of areas, instructs prosecutors to increase the use of diversion (for instance when it comes to offenses that involve marijuana), curb the use of money bail, limit the duration of probation, and take into account possible effects of prosecutorial decisions like deportation. The memo pays special attention to charging decisions and plea negotiations, areas of great prosecutorial discretion. Read more in the Political Report.
Harris County (Houston) DA Kim Ogg asked county officials to increase her office’s budget by $20 million so she could hire 102 new prosecutors. This sparked calls for Ogg to change her office’s practices by reducing the number and type of cases it prosecutes. In February, the five-member County Commissioners Court rejected Ogg’s request while also voting to significantly increase the budget of the public defender’s office. One criticism of Ogg’s proposal was that her office is filing too many charges to start with—and hiring more prosecutors would only balloon that number—and that she should instead look for ways to shrink the criminal justice system by altogether declining to prosecute certain cases. Read more in the Political Report.
State’s Attorney Kim Foxx announced a shift to treating drug possession as a public health matter, with a default of no incarceration. “Incarceration is not treatment, and the Cook County State’s Attorney’s office will no longer address the public health crisis of drug addiction in our criminal justice system,” she said in a Jan. 24 speech. “Diversion will be the presumption in drug possession cases.” Foxx also launched a program to “pursue the expungement of all misdemeanor marijuana convictions.” What this means according to the Chicago Citizen is that people will be able to apply for expungement with her office’s assistance without paying an expungement fee, instead of going through the existing process that requires a payment.
Baltimore, Maryland and St. Louis, Missouri
Marilyn Mosby, the Baltimore state’s attorney, announced on Jan. 29 that her office would no longer prosecute marijuana possession no matter the quantity. She also said that she would act to vacate thousands of old convictions. Her office laid out her rationale in a 14-page white paper. Also in January, St. Louis County’s new prosecutor, Wesley Bell, issued a policy of no longer prosecuting the possession of under 100 grams of marijuana; he will still prosecute larger quantities if he is also accusing a defendant of an intent to sell. Bell’s decision echoes that announced in June by Kim Gardner, the chief prosecutor of the city of St. Louis.
One outstanding question is the persistence of enforcement besides prosecution. In Missouri, municipal officials can still issue citations that remain on one’s record and result in fines; this has limited the impact of local steps toward decriminalization in both St. Louis and Baltimore in the past. Scott Hechinger, senior staff attorney at Brooklyn Defender Services, warned that, absent legalization, marijuana will remain a pretext for heavy-handed policing. Another matter for continued scrutiny how prosecutors implement their own stated policies.
Read more in the Political Report.
In 2018, Philadelphia DA Larry Krasner announced a new policy meant to limit the use of monetary payments as a condition for pretrial release. The policy was to not seek cash bail from people charged with some misdemeanors and nonviolent felonies. Aurelie Ouss and Megan Stevenson, professors at the University of Pennsylvania and George Mason University, released a study assessing the policy’s impact at the one-year mark. They found no ill effect on court attendance or recidivism. Read more in the Political Report.
Hennepin & Ramsey counties, Minnesota
The two county attorneys of Minnesota’s Twin Cities announced new policies on how their offices will handle the prosecution of marijuana-related offenses, Daniel Nichanian reports in the Political Report Both. Both offices will expand the use of diversion programs for felony-level offenses. But both told the Political Report that they would not emulate prosecutors elsewhere in the country who have said that they would simply decline to prosecute marijuana possession cases no matter the quantity. Read more in the Political Report.
Philadelphia DA Larry Krasner announced in November that he was leaving the Pennsylvania District Attorneys Association (PDAA), an organization that brings together the state’s prosecutors and assistant prosecutors and that lobbies in their name in the state capital. In the Political Report, Daniel Nichanian looks at what the group stands for. The PDAA has championed a series of measures to make the law more punitive or criminalize a new action. In the media, its statements often get reified as the perspective of law enforcement writ large, as the view that reflects the experience of striving for safety and caring for victims. But this does not capture the way the PDAA makes decisions. Read more in the Political Report.
Ferguson and St. Louis, Missouri
Wesley Bell ousted St. Louis County prosecutor Bob McCulloch in August, four years after the Ferguson protests. Defeating McCulloch, who had been in office since 1991, involved years of sustained organizing on the part of activists who participated in those protests. Daniel Nichanian talked to Reverend Dr. Cassandra Gould, executive director of Missouri Faith Voices, about what toppled the longtime prosecutor and about what’s next. “We don’t expect St. Louis County to be run the same way in two years that it was run over the past 27 years,” Gould said. “We believe that ongoing engagement and commitment with the prosecutor’s office is extremely important.” Read more in The Political Report.
Two candidates who unsuccessfully ran for DA on the need to reform Oklahoma’s criminal justice system talked to the Political Report about the difficulties of running for prosecutor on such a platform. “We struggled to get anybody to care about the DA race,” said Cory Williams, who ran in Payne and Logan Counties. “There isn’t a built-in pipeline fundraising for DA races,” he added, contrasting his experience in this election with his past legislative races. Both candidates also questioned incumbent prosecutors’ insistence that they are merely applying the law in light of the active role played by the Oklahoma District Attorneys Council. Read more in the Political Report.
Pierce County, Washington
Mary Robnett, the incoming prosecutor of Pierce County, Washington says the job ought to be nonpolitical. But her 2018 campaign also illustrated the limits of this common trope, Daniel Nichanian writes in the Political Report. It ignores the policy decisions that actors involved in the criminal justice system are constantly making, and it reinforces the expectations that the main axis on which to differentiate within prosecutors is whether they are competent. This framing also downplays the criminal justice system’s broader problems; confronting them requires going beyond targeting a set of exceptionally rogue practices. Read more in the Political Report.
Allegheny County, Pennsylvania
Joshua Vaughn identifies considerable disparities in youth justice in the office of Allegheny County (Pittsburgh) DA Stephen Zappala: Black teens in the county were 20 times more likely than their white peers to be arrested and charged as adults in 2016 and 2017. Read more in The Appeal.
Manhattan, New York
Manhattan DA Cyrus Vance has claimed that his office is not prosecuting people who use “gravity knives”during their job, but Melissa Gira Grant reports on contentions that Manhattan prosecutors are still doing so. Read more in The Appeal. New York has since lifted its ban on these knives.