Reform Prosecutors Respond to Attack by U.S. Attorney General

Checking-in on the politics of prosecutors: A Vermont state’s attorney makes waves, and California and Florida prosecutors plan on dismissing more drug charges

The Appeal: Political Report regularly tracks how the reform movement is affecting the practices and policies of prosecutors nationwide. What reforms are they rolling out, and are they actually implementing them? Explore with our interactive tracker. 

U.S. Attorney General William Barr attacked the country’s new reform prosecutors in a speech last week, calling them “anti-law enforcement DAs.” 

Fair and Just Prosecution, an organization that advocates for criminal justice reform, released a statement answering Barr signed by 30 current elected prosecutors, three attorneys general and two sheriffs, among others. After faulting Barr for “using rhetoric that harkens back to the parochial ‘tough on crime’ narrative of past decades that stoked fear and impeded progress,” the signatories say they joined “this public statement to make clear that a growing number of criminal justice, law enforcement and prosecution leaders reject AG Barr’s perspective; we do not view our jobs as waging a ‘war’ against “criminal predators.” 

Separately, Parisa Dehghani-Tafti (a prosecutorial candidate who ousted a Virginia incumbent in the June primaries on a platform of reducing mass incarceration), as well as District Attorney Mark Gonzalez of Nueces County, Texas, and Prosecuting Attorney Wesley Bell of St. Louis County, Missouri, published a joint op-ed in the Washington Post responding to Barr. 
Their op-ed offers a manifesto of sorts for reform prosecutors. “We understand that our current criminal legal system throws away too many people, breaks up too many families, destroys too many communities and wastes too much money,” they write. “And we refuse to accept that a wealthy democracy cannot figure out how to keep its people safe without criminalizing as many things as possible, prosecuting as hard as possible and punishing people for as long as possible.”

This confrontation seems likely to recur, as the number and the ambition of reform prosecutors grows. The Appeal has reported on the hostile environment in which prosecutors like Kim Gardner, Larry Krasner, and Rachael Rollins are operating in St. Louis, Philadelphia, and Boston, respectively, and on legislative attempts to dilute their authority.

And just days after Barr’s speech, U.S. attorney William McSwain escalated the attorney general’s rhetoric by blaming Philadelphia DA Larry Krasner for a standoff in which a gunman wounded six police officers. “The crisis was precipitated by a stunning disrespect for law enforcement,” McSwain said. Sarah Lustbader writes in the Daily Appeal that a “pressing challenge” in response to an incident like Philadelphia’s is to “not to fall into McSwain’s trap of competing over who was less lenient and more incarceratory.”

Vermont prosecutor who sends staff to prison makes waves
Chittenden County State’s Attorney Sarah Fair George’s initiative to require that her staff visit a prison is making waves. The Political Report published a Q&A with George last week, in which she laid out her hope that such visits counter prosecutors’ reflex to seek incarceration.

Janos Marton, who is running to be DA in Manhattan on a decarcerative platform, tweeted his approval. “I commend @SarahFairVT for this, and would do the same in Manhattan. (Maybe have ADAs spend the night!),” he wrote.

I asked Marton why he would implement such a policy. “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,” he said. “To experience that, even for 24 hours, even knowing that there are no collateral consequences on the other side, ought to shift some ADAs’ perspectives on what jail is and what purpose it serves. For example, is it morally appropriate to use pretrial jail detention to leverage plea bargain outcomes? Recognizing that jail and prison conditions are different, we would also want to better understand prisons as we interrogate the kind of sentences we seek, and when we seek prison sentences at all rather than another form of accountability.”

Justin Kollar, the prosecutor of Hawaii’s Kauai County, also tweeted in response to the Q&A that he and his staff “regularly visit Hawaii’s prisons and jails for minimum term hearings,” and that such visits can be “eye opening.” He told me that “seeing the bleak conditions of a jail environment firsthand really brings it home for most folks that we should only put people in that type of restricted environment if it is truly necessary to protect the citizenry from violence. The therapeutic and rehabilitation components are better administered, for most people, in the community.”

In California and Florida, two prosecutors announce policies to dismiss simple drug possession cases
The office of Santa Clara County DA Jeff Rosen, in California, announced that it will decline to prosecute many cases of simple drug possession. Prosecutors 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, approximately 4,500 cases were prosecuted that fit the criteria of cases that will now be declined; that’s an impressive 13 percent of all cases charged in Santa Clara 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.” 
Aramis Ayala, the prosecutor for Orange and Osceola counties, in Florida, also rolled out a policy in June aimed at reducing the number of people prosecuted for drug possession. Prosecuting drug possession “has failed to reduce levels of drug use, dramatically increased the number of individuals incarcerated and undermined public safety by diverting much-needed resources,” Ayala said in a statement. The policy sets up conditions for prosecutors to outright dismiss drug charges: People will need to complete a one-hour course for lower-level charges (possession of marijuana or drug paraphernalia, or offenses involving trace amounts of other drugs) to be dropped; for possessing drugs other than marijuana, people will need to complete a course and community service, and not be rearrested for six months. If someone doesn’t fulfill those conditions, or if Ayala’s office decides they need substance use treatment, they may still be diverted toward rehabilitative services. 
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.