Reformist Prosecutors Face Unprecedented Resistance From Within
By Andrew Cohen, Brennan Center for Justice
One of the clearest and most significant trends in criminal justice over the past five years or so is the election success of reform-minded prosecutors swept into power by voters around the country who are sick of the arbitrary and capricious nature of their local justice systems. But now a counter-trend has emerged: almost all of these earnest prosecutors have been stymied in some meaningful fashion by reactionary other actors within those same justice systems. The lesson? Systemic change is going to be assured only when reform comes to the judiciary and to policing and corrections systems the way it has to these district attorney’s offices.
It’s true that all prosecutors wield too much power over criminal justice systems. Only 2 percent of all federal criminal cases now go to trial, according to new data compiled by the Pew Research Center. That percentage is about the same at the state or local level as overworked public defenders and overwhelmed defendants take plea deals offered in assembly-line fashion by prosecutors who overcharge their cases in the first place to allow themselves the wiggle room they’ll take on the plea. Often the prosecutor is, in reality, the judge in a case.
But not always. No plea deal is final until it is approved by a judge, which means judges have to buy into whatever reform prosecutors are trying to achieve by accepting lighter sentences for certain crimes. No prosecutor can last long in office without at least some support from fellow prosecutors and other executive branch officials (like, say, the state’s governor). And, since every criminal case starts with police work, prosecutors can be crippled by obstruction from police officials or, more likely, from police union officials seeking to stoke public outrage about the reforms the district attorney is trying to implement.
Take, for example, the case of Larry Krasner, the relatively new district attorney elected to begin to clean up Philadelphia’s broken justice system. First he faced opposition from within his own office from lower-level prosecutors who failed or refused to carry out his reforms. He fired some 30 prosecutors and ended up losing maybe 50 more, all of whom were replaced by attorneys whose values about justice more closely mirrored those of Krasner. And then? And then the city’s judges, themselves elected, refused to sign off on the plea deals Krasner’s office began endorsing because the sentences weren’t harsh enough.
Aramis Ayala knows how Krasner feels. She is the first Black state attorney in 172 years of Florida history and she was elected, in and around Orlando, to help fix that city’s broken justice system. She began by declaring that she would never seek the death penalty in a case, even if it were a legal option, because “there is no evidence that death sentences actually protect the public.” For that act of sense and sensibility then-Gov. Rick Scott transferred from Ayala’s control two dozen capital cases. She sued the governor, lost at the state’s supreme court, and announced last month that she will not seek re-election because of it.
Scott, now a U.S. senator, wasn’t the only party within the justice system of Orange-Osceola County to speak out against Ayala. The local police union threw its support earlier this year behind a prosecutor named Ryan Williams. His claim to fame? He left Ayala’s office and joined the office of the state attorney to whom all those capital cases were transferred by Governor Scott. The message from the police could not be more clear: if elected, Williams was going to fight for victims of crime whereas Ayala had not. That such a charge is manifestly untrue, and a slander to Ayala, makes it no less potent.
Kim Foxx knows how Ayala feels. In November 2016 she won an epic election for Cook County state’s attorney over the perpetually beleaguered and scandal-ridden Anita Alvarez. Because she was in Chicago, Foxx immediately became a national symbol of prosecutorial reform. And, indeed, one of the first things she did in office was identify wrongful convictions tainted by the coerced interrogations and other unlawful tactics by Chicago police. Dozens were exonerated in this fashion by Foxx’s reinvigorated Conviction Integrity Unit. Great news, right? Yes, unless you were the police union officials who blasted her for it.