Undermining the Prosecutor

By: Thomas Desoutter
Associate Editor, Vol. 26

The most famous sheriff in U.S. history is Bull Connor, the Alabama lawman who turned fire hoses on peaceful civil rights protesters in defense of white supremacy. No prosecutor is quite so recognizable by name, but many a District Attorney is infamous for harsh punishment in his own town. Historically, the locally elected offices of sheriff and prosecutor have formed the backbone of the criminal legal system. In many cases, this involved persistent repression of communities of color. In other places, laws have been enforced more or less fairly and without notable controversy. White majorities in both types of jurisdictions have largely been content with the broad mandate of those officers and the performance of law enforcement in their communities. However, in a recent twist, these very same offices have been targeted by reformers for a contrary purpose: seizing and radically altering the criminal legal system from above. The “progressive prosecutor” phenomenon has sparked considerable discussion within the legal profession. The anti-reform backlash that has ensued has been less studied, and that is what I wish to examine here.

Former public defender Larry Krasner made headlines in 2016 when he was elected District Attorney of Philadelphia on an unapologetically anti-incarceration platform. He quickly acted on many of his promises, firing a large portion of his office’s holdover staff, eliminating cash bail for some charges, and diverting nonviolent offenders from prison.[1] Anti-incarceration observers have given mixed feedback as to whether Krasner has gone far enough, but candidates in numerous cities across the country have followed his lead and campaigned on similar themes of reform and reducing incarceration. Notable “progressive prosecutors” include St. Louis’ Kim Gardner, Chicago’s Kim Foxx, San Francisco’s Chesa Boudin, and Boston’s Rachael Rollins. Most recently, George Gascón was successfully elected District Attorney of Los Angeles County on a reform platrofm and moved to eliminate death penalty charges, end most use of cash bail, stop charging minors as adults, and resentence inmates serving excessive prison terms throughout the county of over ten million people.[2]

The reforms put in place by progressive prosecutors and sheriffs have naturally provoked a backlash from right-wing, pro-incarceration forces: police unions, other prosecutors, and conservative politicians. In a less predictable turn, Republicans have begun to target the positions themselves. In Pennsylvania, the state legislature voted to strip Krasner’s office of many of its significant powers, reallocating them to the state’s Attorney General, Josh Shapiro.[3] So-called Act 58 gave Shapiro the authority to prosecute certain gun crimes in Philadelphia – but not anywhere else in the state. In Missouri, Kim Gardner’s reformist policies have become the preferred bogeyman for state Republican politicians, who used a sixteen-hour session to pass a package of bills giving the state Attorney General “concurrent jurisdiction” over only Gardner’s circuit.[4] In Arlington, Virginia, reformist candidate Parisa Dehghani-Tafti was elected Commonwealth’s Attorney in 2019 with 90% of the vote and began to institute reforms in accordance with her campaign promises. Less than three months later, the Circuit Court entered an order requiring her to justify all decisions to charge, dismiss, or settle cases in writing – a requirement that has never been imposed on any prosecutor in Virginia.[5] Miriam Krinsky, who helped organize an amicus brief in support of Dehghani-Tafti, stated it lucidly:

“Voters overwhelmingly elected CA Dehghani-Tafti to reform the criminal legal system. While courts did not previously interfere with prosecutorial discretion when it was used to fuel mass incarceration, the circuit court’s attempt to undermine a new vision of justice, that promotes safer and healthier communities, runs counter to decades of well-settled prosecutorial autonomy.”

These scorched-earth assaults on the authority of local elected officials are transparently partisan and racialized, but none so much as the June 2020 police coup against the Black elected officials in Portsmouth, Virginia. It began on June 10, when state Sen. Louise Lucas, who is Black, was standing by a Confederate monument at which a Black Lives Matter protest was being held. Lucas told police officers they should not arrest people who were spray-painting the statue.[6] After a protester was injured, Lucas called for the resignation of Portsmouth police chief Angela Greene. In response, the Portsmouth Police Department issued felony warrants against Lucas, as well as “a local school board member, leaders of the local NAACP and public defenders” for felony injury to a monument and conspiracy to do so.[7] To put these charges in perspective, according to Virginia Senate Majority Leader Dick Saslaw, “[Lucas] left at 1 o’clock and riots began at 9 in the evening.”[8] Furthermore, the police baselessly listed commonwealth’s attorney Stephanie Morales, a reformist Black woman who was not on the scene, as a witness in an attempt to remove her rightful authority over the cases by creating an artificial conflict of interest. Luckily, a state judge rejected the police attempts to sideline Morales.[9] More than five months after the June 10 protest, a just finale was finally reached, as Commonwealth Attorney Morales dropped all charges, noting that police “had no proper evidence” for the accusations, and Chief Greene was fired.[10]

The attempted police coup in Portsmouth is reminiscent of the Jim Crow South; the Portsmouth Police Department is caught between its Bull Connor self-image and the realities of a rapidly changing state. Partisan politics has always been acrimonious, but the scorched-earth nature of these institutional assaults is novel and telling. Republicans’ actions demonstrate that they regard the authority of prosecutors, sheriffs, and even governors to be illegitimate when exercised by Democrats – especially Black Democrats like Kim Gardner, Louise Lucas, and Stephanie Morales. Any naïve illusion that federalism or local control, rather than race and power, motivate conservatives’ approach to institutions can be consigned to the wastebasket of history.

[1] Steve Volk, Larry Krasner vs. Everybody: Inside the Philly DA’s Crusade to Revolutionize Criminal Justice, Philadelphia, Nov. 23, 2019, https://www.phillymag.com/news/2019/11/23/larry-krasner-criminal-justice-reform/.

[2] Brakkton Booker, George Gascón Implements Sweeping Changes to Los Angeles District Attorney’s Office, NPR, Dec. 8, 2020, https://www.npr.org/2020/12/08/944396495/george-gascon-implements-sweeping-changes-to-los-angeles-district-attorneys-offi.

[3] Akela Lacy & Ryan Grim, Pennsylvania Lawmakers Move to Strip Reformist Prosecutor Larry Krasner of Authority, The Intercept, July 8, 2019, https://theintercept.com/2019/07/08/da-larry-krasner-pennsylvania-attorney-general/.

[4] Danny Wicentowski, Missouri Legislature Stays Up Late to Target Kim Gardner, Riverfront Times, Sept. 3, 2020, https://www.riverfronttimes.com/newsblog/2020/09/03/missouri-legislature-stays-up-late-to-target-kim-gardner.

[5] David Greenwald, Virginia Prosecutor Threatened with Power Stripped for Advocating Reform, Davis Vanguard, Aug. 15, 2020, https://www.davisvanguard.org/2020/08/now-virginia-prosecutor-threatened-with-power-stripped-for-advocating-reform/.

[6] Ryan J. Reilly, Judge Rejects Cops’ Bid to Usurp Prosecutor’s Power in Confederate Monument Cases, HuffPost, Oct. 5, 2020, https://www.huffpost.com/entry/portsmouth-police-confederate-monuments-stephanie-morales_n_5f7b34b6c5b64cf6a2541198.

[7] Ryan J. Reilly, Cops Who Charged Civil Rights Leaders With Felonies Try to Sideline Progressive Prosecutor, HuffPost, Aug. 18, 2020, https://www.huffpost.com/entry/portsmouth-police-confederate-stephanie-morales_n_5f3bf494c5b6b1015127f1bd.

[8] Id.

[9] Reilly, supra note 6.

[10] Zack Budryk, Virginia Police Chief Fired After Charges Dropped Over Confederate Monument Protest, The Hill, Nov. 17, 2020, https://thehill.com/regulation/court-battles/526297-virginia-police-chief-fired-after-charges-dropped-over-confederate.