This article appears in the Winter 2018 issue of The American Prospect magazine. Subscribe here.
Larry Krasner twists and turns the touchscreen map on the dashboard of his red Tesla, reorienting the city’s streets as he navigates through unusually heavy traffic on a rainy afternoon in Philadelphia—all the while discussing the finer points of cash bail, civil asset forfeiture, juvenile justice, and the root causes of mass incarceration.
It’s November 7, 2017—Election Day. We’re driving from the far reaches of northwest Philadelphia to his campaign headquarters in downtown Center City. The Democratic candidate for Philadelphia District Attorney had been at a luncheon at Relish, a Southern soul food restaurant that has become a go-to spot for the city’s political class on election days. Democratic leaders like Pennsylvania Governor Tom Wolf and up-and-comer candidates like Krasner gripped and grinned while the diners plowed through the fried chicken, greens, and mac and cheese. WURD, the only black-owned and -operated talk radio station in the state, was broadcasting live from a corner of the restaurant.
“Obviously when you become the most incarcerated country in the world and you live in a city where the rate of incarceration is about four times—four times!—[more] than you’ve got in New York, only 90 miles away … when that’s where you are, then something has gone haywire,” Krasner told the hosts. “We have to go in a much more balanced and fair direction.”
Krasner was never supposed to be here.
While he may look like your typical district attorney candidate—he’s a white, 56-year-old man with silver hair, decked out in black-framed glasses with transition lenses and a fitted suit—he’s anything but. Krasner has zero experience as a prosecutor. Rather, he’s made a name for himself as a prominent civil rights rabble-rouser who’s defended activists from groups like Black Lives Matter, Occupy Philadelphia, and ACT UP. He has sued the police department 75 times. His candidacy for Philadelphia district attorney was “hilarious,” according to the head of the city’s powerful police union, the Fraternal Order of Police. Krasner himself joked he was completely unelectable. And yet, Krasner soundly defeated the six other Democratic primary candidates—most of them former prosecutors—back in May.
“The idea that we hit authentically what we believed—hard and unrelenting, without any kind of repentance for it—that turned the whole field to [the] left,” a campaign adviser for Krasner told me. “It’s like when you become the DJ, everybody else has gotta dance to your tune. And they were all kind of crappy dancers when it came to our tune.”
From the get-go, Krasner was the outsider, the insurgent hammering away at the city’s drivers of mass incarceration: trumped-up charges, long sentences, and a “failed culture” inside the DA’s office that places the conviction rate over the demands of justice. He opposed the death penalty, promising not to seek capital charges in any case. He called for ending cash bail for nonviolent offenders and for overhauling the police department’s asset-forfeiture program. He pledged to strengthen investigations into officer-involved shootings. And he vowed to end the war on drugs by expanding drug courts and diversion programs. Finally, he promised to radically overhaul the office’s approach to sentence recommendations, which are a big factor in determining a judge’s ruling.
“The most important thing is we not repeat this absurd level of sentencing, which has made corrections in Pennsylvania one of the two largest expenditures in the budget and has siphoned incredible amounts of money away from education and things that actually prevent crime,” Krasner told me. His ambitious message not only solidified his support within the African American community, but also mobilized progressive millennials to engage in district attorney politics in an off-year election.
The race was only the second opening for the city’s DA office since 1989. The office has long had a reputation for being heavy-handed in its exercise of prosecutorial power. Voters elected Lynne Abraham, who served from 1991 to 2009, four times in a row. Dubbed “the Deadliest DA,” she obtained 108 death sentences in her 19 years on the job. The most recent DA, Seth Williams, became the city’s first African American chief prosecutor when he was elected in 2009, promising sweeping reforms. His tenure, though, proved a disappointment to reformers when he backtracked on promises, and when, seven years later, he received a five-year federal prison sentence for bribery.
Despite concerns that Krasner was too radical for even a staunchly Democratic city like Philadelphia, and the predictable backlash from leading law enforcement officials, he handily defeated his Republican opponent in November and will take office in January.
The relatively quick swing from a death penalty devotee to a crusading reformer at the helm of a major American city’s DA office is both a distillation of a long-brewing shift in the politics of crime—away from the standard tough-on-crime bromides and toward a smarter approach to justice—and emblematic of a new recognition from progressives that electing allies into DA offices could be one of the most effective ways to reform the system from the inside. It couldn’t come at a more urgent time, as President Donald Trump’s Attorney General Jeff Sessions seeks to double down on the lock-’em-up ethos that has long characterized American law enforcement.
DISTRICT ATTORNEYS “ARE in many ways the most important figures in the system,” says David Alan Sklansky, a Stanford law professor who studies DAs. “They are crucial gatekeepers between the police and the courts. They get to decide who gets charged and what they get charged with. They are the ones who recommend sentencing and negotiate plea agreements. And since the vast majority of criminal convictions in this country are the result of plea agreements, they are the ones who are negotiating sentences.”
While the war on drugs, mandatory minimums, and discriminatory policing practices have all earned a great deal of scrutiny for creating the levels of mass incarceration we see today, more and more reformers are recognizing the pernicious role that prosecutors—who have a tremendous amount of power and discretion within the system—have played.
John Pfaff, a Fordham law professor and author of the provocative book Locked In, argues that the role low-level drug charges have played in the rise in mass incarceration is overblown. The main drivers, he contends, are the prosecutors in the country’s DA offices. By examining state court data, Pfaff finds that almost all prison population growth since 1994 derives from overzealous prosecutors, who have doubled the rate of felony charges brought against arrestees.
Aramis Ayala, who unseated the incumbent state's attorney in Orlando, Florida
For decades, district attorney politics (almost all counties elect their chief prosecutors) have been relatively conservative affairs, animated by white suburban voters who want assurances of law and order—not by the people of color living in the city and on the receiving end of tough-on-crime policies. Of the more than 2,400 elected prosecutors in the United States, 95 percent are white, according to the Reflective Democracy Campaign. In 14 states, all elected prosecutors are white. Just 1 percent of prosecutors are women of color.
Once in office, the power of incumbency is particularly strong. Eighty-five percent of all district attorneys who seek re-election never even face a challenger. That fact was brought into stark relief when it was reported that longtime Manhattan District Attorney Cyrus Vance Jr. had declined to bring sexual abuse charges against the now-disgraced movie producer Harvey Weinstein for groping a model in 2015; nor did he charge President Trump’s children Donald Jr. and Ivanka for misleading potential buyers about their struggling Manhattan real-estate project. Vance reportedly took campaign contributions from defense attorneys in both cases after he dropped the charges. The news broke just weeks before the DA’s election, which New Yorkers belatedly realized was a one-sided affair. Facing only a last-minute write-in campaign, Vance won with more than 90 percent of the vote.
Krasner is not the first candidate to win on a progressive justice reform platform. 2016 was a banner year for the movement, as several reformer candidates surprisingly swept into office—from Florida, Louisiana, Mississippi, and Texas to New Mexico, Colorado, and Illinois—on promises to turn back the tide of tough-on-crime politics and shrink the carceral state.
In Chicago, Kim Foxx, who grew up in the city’s infamous Cabrini-Green housing projects, ousted Democratic incumbent District Attorney Anita Alvarez on the heels of her bungled handling of the police killing of black teenager Laquan McDonald and a renewed focus on corruption and misconduct within the Chicago Police Department.
Houston’s Harris County is known throughout the state as the “execution belt” for putting more than 120 people to death since 1976, double the number of any other Texas county. It was there that Kim Ogg became the county’s first Democratic DA in nearly 40 years on a platform that pledged to create a more stringent review process for levying capital charges, decriminalize possession of small amounts of marijuana, commence pre-trial diversion programs, and overhaul the cash bail system. Two hundred miles south, Mark Gonzalez, a defense attorney with the words “Not Guilty” tattooed across his chest, won the DA race in Nueces County, home to Corpus Christi. His office no longer pursues misdemeanor marijuana charges and is emphasizing pretrial diversion.
“We seemed to be in a spiral of ever-increasing harshness, which was dispiriting to observe,” says Sklansky. But more recently, “There have been a lot of signs that the politics of criminal justice are changing, that there’s this greater opening for people to suggest that ‘more’ and ‘harsher’ is not always better.”
SEEING PROMISE AND opportunity for transforming prosecutorial practices across the nation, criminal justice reform advocates are thinking about how to both scale up campaigns heading into 2018 and ensure that recently elected reformers are being held accountable.
Color of Change’s political action committee dived head first into a handful of district attorney races in 2016, backing candidates like Aramis Ayala and Andrew Warren for state’s attorney positions in Florida, as well as Ogg in Harris County and Foxx in Chicago. The PAC also mobilized its members to engage in “textathons” with registered black voters in targeted areas, educating them about what the district attorney does, who the group was endorsing, and why they should vote for their endorsees. Through 2016, the group says, it conducted more than one million conversations with voters—and in 2017, it replicated that strategy in the Philadelphia DA’s race.
“We are trying to build a movement around this effort that is both local and national and that attracts the right set of candidates,” says Rashad Robinson, spokesperson for Color of Change’s PAC, “and then really tapping into the intel from the advocates in the community who live and work and do this engagement everyday, to help us get a sense of who’s for real and who’s not.”
Defense attorney Larry Krasner, who's sued Philadelphia's police 75 times, is now the city's new DA.
The financial force behind this progressive surge in district attorney elections is, not surprisingly, George Soros, who has committed a tidy sum of money to electing progressive reformers and diversifying the ranks of American prosecutors. In 2016, Soros spent more than $11 million on 12 candidates through various super PACs; ten of them won. He spent $1.4 million in support of Ayala, who ran successfully against the incumbent state’s attorney for the district covering metro Orlando. He also set up PACs in the Harris County election and for Foxx in Chicago. In 2015, he pumped more than $900,000 into a rather obscure DA’s race in Caddo Parish, Louisiana, helping elect challenger James Stewart. He also spent nearly $1.5 million on Krasner’s candidacy in Philadelphia’s Democratic primary.
Soros’s Open Society Foundations gave the American Civil Liberties Union a $50 million grant to launch its Smart Justice campaign, which includes a goal of ten victories in key DA races. The California ACLU has rolled out a flashy voter education campaign called “Meet Your DA,” that, with the help of the singer John Legend, works to introduce Californians to their local district attorney and educate them about what a prosecutor does and can do. “We have very powerful local officials able to exercise discretion with virtually no oversight, accountability, or transparency,” says Ana Zamora, the criminal justice policy director for the ACLU of Northern California. “So the first step is getting voters to pay attention.”
Despite California’s reputation as a stronghold of progressive politicians, Zamora says that isn’t the case in many of the state’s 58 DA offices. “By and large, the elected prosecutors in California have taken a more conservative, tough-on-crime view of the criminal justice system,” Zamora says. “They’ve fought against progressive reforms and for regressive measures.”
In partnership with the Fair Punishment Project, the state ACLU zeroed in on nine California district attorneys who are particularly out of step with their electorates on criminal justice reform. They released a report that compared how counties voted on a handful of recent reform ballot measures with their DA’s positions on those particular issues—be it reforming the three-strike sentencing laws, increasing access to parole and the juvenile justice system, or legalizing marijuana. Some of the out-of-sync district attorneys (at least on some of the reforms) are in major counties—including Los Angeles, San Diego, Alameda (Oakland), Sacramento, and Orange.
While the ACLU doesn’t recruit or endorse candidates, Zamora says the group has been reaching out to the legal community in California, trying to convince reform-minded progressives to consider running for prosecutor positions. Zamora predicts there will be a host of new candidates running reform campaigns against incumbents all over the state. Geneviéve Jones-Wright, a deputy public defender in San Diego County, has already launched a campaign challenging the Republican district attorney. “For far too long, we San Diegans have been at the whim of prosecutors who care more about headlines and political points than seeking justice—this ends now, San Diego,” Jones-Wright declared when she launched her campaign.
Getting reformers elected to DA offices is a big step—but it’s just the first. They then have to work to change the entire culture of the office. A typical big-county office consists of hundreds of line prosecutors charged with carrying out individual cases. Office cultures can be more conservative and change-averse than a progressive district attorney might wish.
“Many of the problems that afflict prosecutors’ offices around the country have to do with the workplace culture inside these offices, which very often prizes conviction and obtaining a long sentence more than making sure that justice is done,” says Sklansky. “That’s what gets valued, that’s what gets rewarded, and that’s what gets celebrated.”
Sometimes the only way to ensure reform can take root is to clean house. Just over a month after her election, for instance, Harris County’s Ogg fired 37 prosecutors and filled out her ranks with a slew of defense lawyers.
With the rhetoric of criminal justice reform now proving to be an increasingly effective political message, reformers are also wary of faux-progressive politicians who might co-opt the movement’s rhetoric. “‘I’m a criminal justice reformer’ are now some of the cheapest words in the English language,” says Rob Smith, executive director of the Fair Punishment Project. He points to former DAs like Anita Alvarez in Chicago, Seth Williams in Philadelphia, and Tim McGinty in Cleveland, who all claimed the mantle of reform during elections only to revert to protecting police malpractice once in office.
It’s become increasingly common for district attorneys to use books like The New Jim Crow, which details the rise of mass incarceration via the war on drugs, as props to prove their progressive bona fides. Hillar Moore III, the district attorney for East Baton Rouge Parish in Louisiana, was the subject of a glowing newspaper profile in 2013 in which he boasted about the piles of books and scholarly articles he’d read on criminal justice reform ideas. He has sat on panels about reform held by progressive organizations, and was even invited to the Obama White House to discuss innovations in prosecution. Meanwhile, Smith points out, Moore has prosecuted juveniles, supported the death penalty, and lobbied against state reforms. In 2015, Moore pitched the idea to open “misdemeanor jails” for as many as 100,000 people with unpaid misdemeanor warrants as a way to encourage them to show up for their court dates. Baton Rouge leaders quickly batted down the idea.
“You need people who not only know what to say on campaign trail, have a clear policy vision and the stomach and skill set to be able to implement that vision,” Smith says. They must be able “to withstand any retrograde naysayers within their office or other positions in local government,” he continues. “It’s one thing to do that on campaign trail, and a whole other thing to implement that in an office.”
Miriam Krinsky is trying to help bridge that gap between rhetoric and the more complicated realities a district attorney faces. She’s launched Fair and Just Prosecution, a network of more than 15 DAs around the country who “share the view that we need a justice system based on smart approaches, equity, and compassion,” she tells me. “For too long, our justice system has tried to criminalize things that are better dealt with outside the criminal justice system—poverty, mental illness, addiction.”
The network emerged about a year ago from a smaller project focused on assisting Chicago’s Kim Foxx, and is meant to connect newly elected district attorneys with more experienced DAs who can help them navigate common challenges. FJP has brought a group of DAs to Seattle to see how that city’s Law Enforcement Assisted Diversion (LEAD) programs are helping to keep vulnerable people out of the system, and to Philadelphia to talk with exonerees, emphasizing the importance of having strong conviction integrity review practices.
“This has been the beginning of the new wave of justice-system thinking, and we know that so much in criminal justice happens at a local level,” says Krinsky. “This new group [of prosecutors] is still a drop in the bucket. But if we can amplify them, enable them to succeed, and encourage the next generations of leaders who are like-minded, then the impact is going to be that much greater [and may help] bring in the next wave and the wave after that.”
In 2018, there will be more than 1,000 elections for local district attorneys—and there will be an unprecedented amount of resources and energy directed at putting more progressives into those offices. At a recent Democracy Alliance retreat that brought together some of the biggest liberal donors with various progressive organizations, one panel event was titled “Prosecutor Races—Winning Big in 2018?” and promised to highlight “more than 30 hot races, many overlaying other key 2018 battlegrounds.”
Becky Bond, a senior adviser to Bernie Sanders’s presidential campaign, has also started a group called the Real Justice PAC, which aims to bring the strategies of Sanders’s campaign—small donor fundraising, digital media, and aggressive field organizing—to county prosecutor races. Krasner’s campaign was a successful test case for Bond.
Rashad Robinson says the Color of Change PAC is already gearing up for 2018, looking at upwards of 20 different DA elections, particularly in big counties where the black vote could be particularly consequential. Among its prospective targets are Dallas, Las Vegas, and Alameda County.
“Because so few DAs have had to run in competitive races, these elections are winnable and provide a real pathway for progressives to be able not just to have a rhetorical conversation in the era of Trump, but to actually point to ways in which they’re making people’s lives better,” Robinson says. “But this work takes money as well. It’s not going to happen out of thin air. It requires resources.”