In the last two years, from Chicago to St. Louis to Santa Fe, N.M., voters have unseated district attorneys, or beaten an incumbent’s chosen successor, in more than a dozen counties, reported The Marshall Project. Those are small numbers compared with the roughly 2,500 elected prosecutors in the U.S., but they still signal a shift. “It’d be hard to find a set of a dozen races like this in the early 2000s or 1990s,” says Stanford law professor David Sklansky.
These contests — which have centered around race, sentencing, the treatment of juveniles, and the death penalty — reflect a growing awareness among reformers that with bipartisan efforts to reduce prison populations stalled in Congress (and inconsistent in state legislatures), local elections are a place to push for change. “People are scrutinizing their local criminal justice systems, and people are realizing how much power state attorneys have, and they are seeing elections as a way to change those results,” says Deborrah Brodsky, director of the Project on Accountable Justice at Florida State University. In other words, criminal justice reform is targeting the system’s entry point.
Many of the upsets came in primaries, but a few counties are in the midst of general election battles. In Harris County, Texas, Republican incumbent Devon Anderson is sparring with Democratic challenger Kim Ogg, who has the backing of the Houston Chronicle and the local Black Lives Matter movement, over bail and the handling of marijuana cases. In the Denver suburbs, Republican incumbent Pete Weir is talking up his record of promoting mental health and veterans courts, while his Democratic challenger, Jake Lilly, tries to tag him as “old-fashioned.”
Ogg and Lilly's campaigns received support from political action committees linked to billionaire George Soros, who in the past two years has added to his broad support of justice reform by financing prosecutor candidates who promise treatment for drug offenders and the reduction of racial disparities in sentencing. (A Soros representative declined to comment; the donations were first reported by Politico.)
In Tampa, the county seat of Hillsborough County, District Attorney Mark Ober’s opponent is Andrew Warren, a Democrat who focused on white collar crimes at the Department of Justice and moved to the area several years ago. He says he decided to run against Ober, a Republican, after hearing about gang violencein the city. He argues that Ober’s aggressive prosecution of low-level drug crimes has taken resources away from attacking violent crime. “We have been so focused on the one goal, retribution and punishment,” he says, “that we have lost sight of the other goals: reducing recidivism, rehabilitation, and victims’ rights.” He wants to establish a unit to uncover wrongful convictions.
When they debated at a civic club luncheon last month, Warren spun Ober’s long tenure into a liability, calling his approach overly punitive and outdated — “the rotary phone of criminal justice.” He said Ober has sent too many youth — and too many African-Americans — to prison with long sentences, and utilizes the death penalty too often. Ober fired back that he makes appropriate decisions in individual cases, and that Warren, who has only lived in the area for several years, is an “outsider” without an understanding of what the community wants.
Warren has brought up a case in which a 27-year-old man in Washington, D.C., had sexually assaulted a 15-year-old girl from the county after meeting her online. Ober had initially declined to charge the man, but then later did so after a Tampa news station aired a segment on the case. At the debate, Ober said the case was more complex than his challenger had made it out to be, and that the victim “was with [the defendant] voluntarily...She flew to see him.”
How much voters have been swayed by Ober’s comments on the rape victim will not be clear until Election Day, but it illustrates the tendency of individual, controversial cases to dominate such races. This can lead to accusations that prosecutors are putting political interests above the just result in a case. In Baltimore, after the death of Freddie Gray in the back of a police van led to street protests, the state’s attorney, Marilyn Mosby, wasaccused of obtaining indictments against the police officers involved only to assuage protesters. Months later, her office’s failure to convict those officers was described by the Baltimore Sun as a vulnerability should she run for reelection in 2018.
This tension is unique to the U.S., the only country in the world that elects prosecutors. At the lunch debate in Tampa, and in ensuing news coverage, both Ober and Warren promised to be apolitical in their decision-making, while at the same time defending against political attacks on how they had handled individual cases.
Sklansky, the Stanford professor, agrees that there is “something uncomfortable” about how individual cases can drive an election campaign, and that this underscores the need to find better ways to measure how prosecutors do their jobs, including more data on charging and convictions. But overall he sees the current competitiveness as a sign that people are paying attention to how the criminal justice system works. “There was a long period where it seemed like there was a rigid logic to the politics of criminal justice, which led to ever-harsher sentences,” he says. “That logic no longer holds.”
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