How State Attorneys General Can Lead On Reform

On January 14, 2021, New York State Attorney General Letitia James took an unprecedented action: she sued the New York City Police Department. In a complaint filed in federal court, James, who is a Democrat, alleged that NYPD officers had abused their authority by beating and unlawfully arresting peaceful protestors who took to the streets following the killing of George Floyd. This abuse, James alleged, was part of a longstanding pattern and practice of misconduct that had been condoned by higher-ups “time and time again.” 

James’s lawsuit, which seeks a court-appointed monitor to oversee the policing of citizen demonstrations, was not without controversy, including within her own political party. But  James stood firm, criticizing Mayor Bill de Blasio and other city leaders whom she named as defendants, for dragging their feet and implicitly condoning police misconduct by repeatedly failing to implement important reforms.

The attorney general is the top law enforcement officer in the state, a position that comes with broad authority and discretion. James’s lawsuit against the NYPD is one example of what all state attorneys general can do with that authority and discretion, and what voters can demand of them: use their power to hold the police accountable and implement progressive policies.

In California, Governor Gavin Newsom now has a unique opportunity to put a reformer in charge of the California Attorney General’s Office. Xavier Becerra, who currently holds that position, has been selected by President Biden to be the next head of the Department of Health and Human Services. Assuming that Becerra is confirmed, Newsom must name his replacement.  

Whoever gets the nod will be at the helm of the most powerful law enforcement agency in the most populous state in the country, with 40 million residents and a reputation for leading the way with innovative approaches on a range of legal issues. Though perhaps under-appreciated, the state attorney general is in some ways uniquely positioned to push back on some of the most harmful excesses of our punitive criminal justice system, including draconian sentences, wrongful convictions, and unchecked, often lethal police violence. The attorney general can also enact new policies that take a forward-thinking approach rather than enforcing the status quo.

Both the prospect of Newsom’s selection, and bold actions like James’s NYPD lawsuit, raise a host of questions about the role of attorneys general and their influence on statewide policy. What, exactly, do attorneys general do? For progressives, what does a “reform” state attorney general look like in practice? What kind of policy commitments should they make, and how can they use their power to further criminal justice reform? Answers to these questions are the subject of this explainer.

What Do State Attorneys General Do? 

State attorneys general have a broad array of legal responsibilities. They represent the state in civil and criminal cases; provide investigative, forensic, and financial support to local prosecutor offices; coordinate task forces and intra-state efforts in large scale prosecutions; and represent consumers who have been the victims of fraud. In California and some other states, the attorney general has a Civil Rights Enforcement Division to enforce protections for vulnerable populations that ensures discrimination-free access to education, voting, and housing; ensures workers have labor and employment protections; and investigates allegations of law enforcement misconduct, including the killing of unarmed civilians by police without justification. (In Virginia, the state attorney general created an Office of Civil Rights just last month.)

Equally important is the attorney general’s discretion to stake out a public position in cases of major importance by filing an amicus curiae or “friend of the court” brief with the state’s appellate courts or supreme court. The attorney general can also fulfill this role in cases outside the state, including in the United States Supreme Court, that present issues affecting fundamental constitutional rights. Often, state attorneys general will partner in multi-state efforts to enforce federal law on behalf of their residents (in many cases opposing coalitions of attorneys general will form), filing joint briefs in courts and federal agencies on matters such as antitrust, environmental and consumer protection, and voting rights. 

More rarely, but crucially, when the attorney general is tasked with defending a law attacked as unconstitutional, they decline to defend the law because they agree that it violates fundamental guarantees of equal rights and due process.  One famous example occurred in 2013 when then-California Attorney General Kamala Harris refused to defend Proposition 8, an initiative passed by the voters that banned same sex marriage. The attorney general can also weigh in on the merits of proposed legislation, lending crucial support to reforms aimed at overhauling a system that disproportionately impacts communities of color and incarcerates people long past the point where they pose a danger to public safety.

Below are a few issues where a progressive, reform-minded attorney general could have a seismic impact.

1. The Death Penalty

Myriad studies have shown that the death penalty is racist in application and discriminatory against the poor. Roughly 35 percent of those executed since 1976, the modern era of America’s death penalty, are Black, even though Black people make up only 12 percent of the U.S. population. Perhaps unsuprisingly given this figure, the ACLU’s Prison Project found evidence of racial discrimination in 96 percent of active death penalty cases.

Nearly everyone on death row is a person of color, indigent, or both. They are condemned not because they are “worst of the worst,” but because they lacked the resources to mount a defense, particularly at sentencing, where mitigating evidence is crucial to jurors weighing life in prison without the possibility of parole against the ultimate punishment. We also execute the innocent. A 2014 study by the University of Michigan concluded that more than four percent of the people on death row nationwide are innocent; in California alone, that would mean that more than two dozen people on death row did not commit the crime that put them on the list for execution. According to the Equal Justice Initiative, 174 condemned prisoners across the country have been released and/or exonerated since 1973. 

One of those men, Vincente Benavides, was freed from California’s death row in 2018 after every expert but one recanted their testimony against him and the California Supreme Court ruled unanimously to overturn his conviction.

Yet California remains one of 28 states that still allows for the death penalty; prosecutors continue to seek it, and California attorneys general continue to defend death sentences on appeal. This despite the fact that no one has been executed in the state since 2006 due to protracted litigation over the constitutionality of the law and, now,  a moratorium on executions that will last throughout Newsom’s time in office. Today, California’s death row population has swelled to upwards of 700. While all execution dates have been pushed back, the machinery of death could crank up again if the state implements judicially-ordered fixes and the next governor is more conservative. All the while, the taxpayers foot the bill: The state has spent more than $4 billion on capital punishment since 1978 when the death penalty was reinstated.

The state attorney general—in California and in any state that still has the death penalty—could end this madness by refusing to defend death sentences on appeal. They could also go further. As the state’s chief law enforcement officer, attorneys general can order local prosecutors to not seek death sentences,  and they can publicly declare their support for any legislation, ballot initiative, or court challenge that seeks to eradicate the death penalty statewide because it violates fundamental protections to equal protection, due process, and prohibitions on cruel or unusual punishment.

2. Wrongful Convictions 

Wrongful convictions in the United States are widespread. According to the National Registry of Exonerations, more than 2,700 people have been exonerated since 1989. Yet exonerating just one individual can take years, in part because these efforts are often fierce and face unyielding opposition not only by the local prosecutor but by the state attorney general.

One prominent example is the case of Kevin Cooper, a Black man convicted of the brutal slaying of a white family in 1983. Cooper, who has always insisted that he is innocent, has languished on California’s death row for 35 years. Although the case was rife with racism, Cooper’s trial counsel was overwhelmed, and there is abundant evidence that the prosecutors and police tampered with and planted evidence, the San Bernardino County District Attorney’s Office and numerous California attorneys general fought to uphold the verdict and the sentence until Cooper exhausted his appeals.  (Disclosure: the USF Racial Justice Clinic, which I direct, has provided assistance to Cooper’s legal team).

In cases like Cooper’s, state attorneys general can address such manifest injustice by conceding error. But reformers can also take on wrongful convictions more proactively. The role of a prosecutor is to do justice, not reflexively defend convictions even if they violate the Constitution, incarcerate the innocent, and reward misconduct by government officials.  

Acknowledging the profound obligation to right past wrongs, San Francisco District Attorney Chesa Boudin has formed an Innocence Commission. The Commission is an empowered and diverse group of experts: a retired judge, an academic, an assistant district attorney, a public defender, a neuropsychologist, and the executive director of an innocence project. (Disclosure: I serve in the academic position as the Commission’s Chair.) The Commission members work pro bono, assisted by a paid staff attorney, to independently and exhaustively examine cases involving credible claims of wrongful conviction and report their findings and recommendations to the DA. The paramount duty of the Commission is to get to the truth and advise the top prosecutor in their duty to “see that justice is done.” 

Several state attorney general offices, including those in Michigan and New Jersey, have Conviction Integrity Units, though their review is typically narrow, limited to claims based on entirely new evidence, and to date none has produced a single exoneration, according to the National Registry of Exonerations. (In 2020, Minnesota received a grant from the U.S. Department of Justice to start a post conviction integrity unit and is in the process of establishing it.)  

An Innocence Commission is a different approach that the California and other attorneys general should consider. It is broader in scope: reviewing a wider array of claims and with greater independence because it is not staffed mainly by prosecutors or housed within a prosecutor’s office. An Innocence Commission can ensure that individuals convicted because of official misconduct, bad lawyering, perjured testimony, or faulty forensic science are not left without a remedy because the local prosecutor—or an internal attorney general review unit that is hampered by tunnel vision, bureaucracy, and politics—is reluctant to investigate or cites procedural bars as a reason to ignore the truth. 

3. Police Accountability

Outrage surrounding the killing of unarmed Black civilians by police in the United States crescendoed over the summer of 2020. Millions of people watched a Minneapolis police officer extinguish the life of George Floyd, an unarmed Black man, by pressing his knee against Floyd’s neck for nearly nine minutes. More killings followed: Breonna Taylor, gunned down in her Louisville, Kentucky, home by police officers executing a no-knock warrant; Rayshard Brooks, shot to death while fleeing from an officer after an altercation in a Wendy’s parking lot in Atlanta. 

These cases are notable not because they are unusual—they are not. Before Floyd, Taylor, and Brooks, there was Philandro Castillo, Tamir Rice, and countless others. The killings in 2020 are notable because they sparked worldwide outrage, a national conversation, and long overdue acknowledgement by some of those in power that these were not just unfortunate events but rather crimes in need of prosecution; not merely the isolated acts of “bad apples,” but rather the products of a racist and violent system that cannot be fixed by tinkering on the margins.

California has its own share of high profile killings of Black men by police: Mario Woods in San Francisco in 2015, Stephon Clark in Sacramento in 2018, and Sean Monterrosa in Vallejo in 2020. In each case, Attorney General Becerra declined to bring charges after the local district attorneys did not prosecute the officers who were involved.

Reform attorneys general can chart a different course. New York Attorney General Letitia James’s lawsuit against the NYPD, using the office’s power to enforce civil rights protections, marks one avenue of police accountability, one also used recently to combat persistent police violence in Chicago. In California, Attorney General Becerra recently announced a civil rights investigation into the Los Angeles County Sheriff’s Department, an agency long-known for its violence, deputy misconduct, lack of transparency, and even violent gangs within its ranks. This investigation is a long overdue first step toward accountability, but reform-minded attorneys general can do more: move swiftly to protect civil rights before more people are abused and killed.  

The attorney general can also bring criminal prosecutions in cases where civilians die at the hands of the police, particularly in cases where local prosecutors either refuse to take action or have lost the public’s confidence. In Minnesota, Governor Tim Walz transferred prosecuting power in George Floyd’s murder to state attorney general Keith Ellison after state lawmakers said in a letter that, “our constituents, especially constituents of color, have lost faith in the ability of Hennepin County Attorney Mike Freeman to fairly and impartially investigate and prosecute these cases.”

In California, a new law requires state prosecutors to investigate these cases. California’s next attorney general should embrace this mandate, zealously investigate these cases, and if appropriate, criminally charge the law enforcement officers responsible for these deaths. The fact that prosecuting police officers is difficult both inside the courtroom (because juries often afford officers deference) and outside of the courtroom (because powerful special interests, including police officer associations, forcefully condemn such decisions) is no excuse for not bringing a case where the evidence supports a conviction.

Finally, police accountability begins with independence from the police. Police unions often spend heavily on prosecutor elections, currying favor on behalf of the very officers who prosecutors are supposed to oversee and may have to prosecute. At a minimum, these donations project a conflict of interest, further undermining public confidence in a legal system that too often protects police at the expense of those who are subject to their control. 

Reform attorneys general should reject law enforcement money. Indeed, in the last year, nearly 50 prosecutors from across the country, including the attorneys general of Vermont, Delaware, and Washington, D.C., joined together in refusing to accept police endorsements or donations. That also included Diana Becton, the district attorney of Contra Costa County in California. “We need to do everything that we can in this moment to avoid not only actual conflicts, to avoid the appearance of conflicts, if we hope to rebuild public trust and confidence in our system at a time when it is so, so sorely needed,” she said. 

4. Prosecutor Misconduct 

Prosecutor misconduct is both profoundly harmful and pervasive. Judges and legal commentators have described an “epidemic of Brady violations,” referring to the 1963 Supreme Court ruling that requires prosecutors to disclose all evidence that might be helpful to the defense. In courtrooms across the country, prosecutors regularly conceal or fail to disclose exculpatory evidence—such as that someone else confessed to the crime, or that lab results point elsewhere—misconduct that has sent innocent people to prison and even death row. Indeed, the National Registry of Exonerations estimates that over 50 percent of wrongful convictions are the result of prosecutor misconduct. 

Yet prosecutors are virtually never punished for their misdeeds. Individual prosecutors have “absolute immunity” from civil lawsuits and they rarely face internal discipline. State bar organizations have also been reluctant to discipline prosecutors. As the late Jeff Adachi and Peter Calloway recently explained in The Appeal: “In Massachusetts, as of April 2016, only two prosecutors had been publicly disciplined since 1980, despite at least 142 instances over that same period where a judge reversed a guilty verdict or dismissed charges based on a prosecutor’s misconduct. In contrast, over 1,400 non-prosecutors have been disciplined in Massachusetts over roughly the last 15 years. And in Louisiana, the first professional sanction against a prosecutor didn’t occur until 2005.”

On this front, state attorneys general can decline to defend and ask courts to reverse convictions that result from misconduct, prosecute local prosecutors who lie under oath, and, just as they do with local law police and sheriff departments, they can also investigate local prosecutor offices for a “pattern or practice” of civil rights violations and other violations of the law—particularly in states, like California and New Jersey, with the clear statutory authority to do so. 

5. Legislative Agenda

Finally, beyond the power to directly implement policy change, the attorney general can have a clear legislative agenda for reform—and advocate for that agenda, both in the statehouse and to the public, through op-eds, legislative testimony, speeches, and on social media. Whether it’s reforms to eliminate harmful sentence enhancements that compound already lengthy prison terms, get kids out of the adult system, or end cash bail and reduce pretrial detention, the attorney general, just like a local district attorney, can be a leading and influential voice for change. Asking attorney general candidates about their legislative policy commitments on issues involving policing and criminal justice should be an essential part of the selection process, whether that selection is made by voters or, when the position becomes vacant between elections, the governor. 

Lara Bazelon is a law professor at the University of San Francisco School of Law, where she directs the criminal and racial justice clinics.