Yet on August 9, Florida Governor Ron DeSantis (R), announced he was suspending the Democratic prosecutor for allegedly avoiding mandatory minimums for drug charges and harsh punishments for children charged with crimes.

It’s undoubtedly an escalation in the war on reform prosecutors; DeSantis’s predecessor, current US Senator Rick Scott, only removed capital murder cases from Ayala in retaliation for her not seeking the death penalty.

DeSantis’s action shows that it does not matter if reformist prosecutors perform “moderation” for appeasement purposes in conservative states.

Worrell arguably sometimes overstated her reform bona fides, but the balancing act she tried to perform reflected the tightrope that pro-reform prosecutors in conservative states may feel they have to walk.

On one hand, prosecutors like Worrell need to show the reformist wing of the electorate that they mean business when it comes to curtailing abuses and shrinking bloated jail and prison populations. On the other hand, if they’re perceived to cross the line, they can easily be struck down by conservative legislative majorities and governors, who in many states have tremendous powers to get rid of locally elected politicians.

DeSantis’s action shows that it does not matter if reformist prosecutors perform “moderation” for appeasement purposes in conservative states. They will be punished anyway, especially if that governor has a presidential campaign going. Removing Democratic politicians is an easy way for a Republican to win partisan applause.

This, of course, does not work the other way around. In New Jersey, a state with similarly broad gubernatorial powers to ax local head prosecutors, research suggests that no Democratic governor has ever fired a Republican county prosecutor. Whereas this is the second time a single Republican governor—Florida’s DeSantis—has gotten rid of a Democratic DA he does not like in about one year.

 “These organized attacks on prosecutorial discretion are a one-way ratchet.”

In August 2022, he suspended State Attorney Andrew Warren of Hillsborough County (Tampa), after Warren pledged not to prosecute people who seek or provide abortions or gender-affirming care, in the face of state criminalization.

 “These organized attacks on prosecutorial discretion are a one-way ratchet,” responded Rachel Marshall, executive director of the Institute for Innovation in Prosecution think tank. “We have not seen efforts to undermine prosecutorial discretion when prosecutors seek overly harsh sentences, are responsible for egregious wrongful convictions, or decline to hold those in power accountable. Instead, is it only when prosecutors respond to their community demands for criminal justice reform that we see these bad faith restrictions on prosecutorial independence.”

DeSantis is currently polling in a distant second place to Donald Trump among Republican presidential hopefuls for 2024. His penchant for firing prosecutors over politics—especially over the anecdata and hype-driven “progressive” and “woke” labels that DAs like Monique Worrell have received—cannot be divorced from this context.

When such moves run little risk of offending anyone other than people who would never vote for you anyway, it seems likely that this behavior will become increasingly normalized.

But the implications of his actions stretch beyond a single presidential election. It seems reasonable to think that supporters of DeSantis see his unilateral destruction of elected officials on the other side of the aisle as a feature, not a bug. And with polarization ever more entrenched—when such moves run little risk of offending anyone other than people who would never vote for you anyway—it seems likely that this behavior will become increasingly normalized, whatever the fate of DeSantis’s election bid.

Successfully removing a Democratic DA without voter input is a Florida phenomenon, but that does not mean other state Republican leadership don’t try. The Pennsylvania GOP has not been shy in its attempts to impeach Philadelphia DA Larry Krasner, ostensibly on public safety grounds. And this year, Georgia Governor Brian Kemp signed a bill that will make firing DAs for using their discretion all too easy.

It would seem futile at this point to appeal to bipartisanship and civility, seeking to resurrect the fantasy of West Wing-style tense debates and occasional intrigue, broken up by periodic displays of mutual respect and handshakes. As other political commentators have reflected, the “Never Trump” conservative movement has repeatedly failed to take off among the wider right-leaning public. Republicans in office as well as Republicans at the voting box are craving raw power at the expense of democratic principles.

Meeting the reality of this moment may entail acceptance that while local offices such as DAs can matter in blue states—where reformists are also heavily targeted, but can sometimes survive—it is governors and legislative majorities that matter in red states.

In states like Florida—which was, not so long ago but in a different era, considered purple—it may be time to pause on pouring resources into DA elections, and focus instead on longer-term efforts to rebalance the political terrain.

It may make most sense for those seeking reform through prosecutors’ offices to focus exclusively on battles they might still win—in places like Illinois, California and Maryland, and not in Texas, Louisiana or South Carolina. In red states, for now, the fights might need to be left to intrepid attorney-activists in courtrooms, where legal principles sometimes still matter despite the personal politics of judges.

Photograph of DeSantis by Gage Skidmore via Flickr/Creative Commons 2.0

The post DeSantis Removal of Elected Reform Prosecutor Signals New Normal appeared first on Filter.

In the recent case, plaintiffs were challenging their disenfranchisement under Section 241 in a class-action lawsuit. But the ruling in their favor did not rest on Equal Protection grounds.

That’s because of the Supreme Court’s 1974 decision in Richardson v. Ramirez; this held that Section 2 of the Fourteenth Amendment, which allows the curtailing of voting rights for “participation in rebellion, or other crimes,” forecloses the application of the Equal Protection doctrine.

Attorneys faced an uphill struggle, because Eighth Amendment jurisprudence in the United States is notoriously limited.

Instead, the Fifth Circuit ruled that Mississippi’s lifetime ban on voting for people with certain criminal records violates the Eighth Amendment’s ban on “cruel and unusual punishment.”

In seeking this, attorneys for the directly impacted plaintiffs adopted an ambitious tactic. They faced an uphill struggle, because Eighth Amendment jurisprudence in the United States is notoriously limited.

Until Thompson v. Oklahoma (1988), the Supreme Court permitted the death penalty for kids under 16. And “terms of years” prison sentences are basically unchallengeable under the Eighth Amendment, no matter how disproportionate.

Moreover, many punishments for formerly incarcerated people that are deemed to be provided by “civil” or “regulatory” laws, rather than criminal laws, are legally barred from judgment under the Eighth Amendment—even when it is common sense that the purpose of such laws is to impose punishment, which could be argued to be cruel and unusual.

Massachusetts is currently rolling out a civil commitment program to force treatment for people who use drugs, and that is seemingly permitted. The same applies to locking people in solitary confinement, despite the practice being labelled torture by international human rights bodies. Or to deportation of non-citizens for the “crime” of skipping often-absurd visa waiting times, having faced awful circumstances in their home countries. Meanwhile, people convicted of virtually any sexual crime face a whole schema of complex laws that permanently brand them as “moral lepers,” no matter how they have conducted themselves since conviction.

The decision hinged on two factors, including the Supreme Court-made doctrine of society’s “evolving standards of decency.”

Nonetheless, the Fifth Circuit deemed the state’s lifetime voting ban to be “cruel and unusual” punishment and struck it down. How can this be?

The decision hinged on two factors: the post-Civil War Readmission Act, which allowed rebel states to rejoin the US and permitted disenfranchisement for people with felonies only as punishment; and the Supreme Court-made doctrine, first codified in Trop v. Dulles (1958), of society’s “evolving standards of decency.”

The latter holds that punishment should only be permitted when it fits these evolving standards, which are generally determined (as here) based on what a majority of states have done.

That’s how we arrived at a conservative federal appeals court (Fifth Circuit) forcing a conservative state (Mississippi) to recognize that people with convictions should be allowed to fully reenter society.

More attorneys should now feel encouraged to craft clever arguments to challenge harsh punishment that may not be called “punishment” under law.

Now, the voting rights of tens of thousands of Mississippi residents should be automatically restored, since the constitutional provision has been ruled null and void. The ban disproportionately affected Black Mississippians.

That’s a big win, but it shouldn’t stop there. More attorneys around the country should now feel encouraged to craft clever arguments to challenge disproportionately harsh forms of punishment that may not necessarily be called “punishment” under law.

While the decision is narrower that it appears at first glance—the court did not have to struggle in demonstrating that voting bans are punishment, due to the context provided by the Readmission Act—it is an encouraging addition to a growing book of decisions on the Eighth Amendment’s potential.

However, as helpful as the “evolving standards of decency” concept is, it is limiting by fact that some cruel and unusual punishments are simply not addressed one way or the other by most states’ laws (like how Massachusetts is believed to be the only state that “court-orders some men to treatment inside jails and prisons—even if they haven’t committed any crimes”). In addition, many punishments are cruel but not unusual, thanks to funding mandates from Congress or specific provisions of the US Constitution.

“Evolving standards of decency” is a helpful concept in jurisprudence and should be pursued in furthering civil and human rights. But when it is taken simply to mean national norms, those very norms, sadly, will set inhumane limits on its application.

Photograph via Pxfuel

The post Fifth Circuit Strikes Post-Conviction Voting Ban as “Cruel and Unusual” appeared first on Filter.

Price was unexpectedly elected as Alameda County’s DA in 2022 on a criminal justice reform platform. This included pledges not to seek the death penalty, to respect “sanctuary city” policies, and to investigate “excessive sentencing practices with a special focus on racially-biased prosecutions.”

Despite Price having been in office just a matter of months, she’s being relentlessly attacked over her perceived leniency and its alleged outcomes.

A Change.org recall petition, launched in February—just the second month of her tenure—brands Price “soft on crime” and has almost 25,000 signatures at publication time. And in July, some residents formed a committee to organize and fund the recall bid.

Attacks have sometimes come from unexpected quarters: Even the local NAACP branch is blaming the first Black woman to hold the position for rising crime.

Many variables—overwhelmingly longer-term—impact crime rates. Price, however, has become an easy person to blame.

City figures suggest overall crime in Oakland is up 26 percent on last year, and violent crime up 15 percent, although recorded homicides fell by 13 percent. But many variables—overwhelmingly longer-term societal factors such as inequality and lack of opportunity—impact crime rates. And violence has been an issue in Oakland for as long as anyone can remember.

Price, however, has become an easy person to blame.

Loud criticisms have attended cases like that of Delonzo Logwood, a young man initially accused of three murders at 18 years old, though two of the charges were dropped this year. Amid reported evidentiary issues with the prosecution’s case, Price tried to offer Logwood a plea that would have seen him sentenced to “only” 15 years in prison. When the judge rejected the plea deal, she tried to have him removed from the case.

But perhaps the biggest flashpoint is the accusation that she is going soft on David Misch—a man awaiting trial for three murders, including that of a 9-year-old girl—by not seeking life without the possibility of parole or the death penalty.

Still, no one acted like former Minnesota US Attorney Andrew Luger, for example, was a coddler of child killers when he let a murderer take a plea for 20 years in prison and no actual murder conviction (albeit there were significant differences in the cases).

Price’s predecessor also saw a surge in reported crime. But O’Malley did not get significant heat for this.

Another comparison is more telling. Because Price’s predecessor as Alameda County DA, Nancy O’Malley, also saw a surge in reported crime. During the first three years of her long tenure, homicides rose and nonfatal shootings soared by almost 50 percent—from around 380 when she took office in 2009, to 561 reported incidents in 2012.

But O’Malley did not get significant heat for this.

That’s because she largely behaved the way a DA is “supposed” to behave. She was a hard-charging prosecutor whose biggest supporters were members of law enforcement. (When Oakland Ceasefire, a violence reduction strategy launched by city leaders and involving community partnerships, dramatically reduced gun violence in the years that followed, the Giffords Law Center put out a 107-page report on this “case study of hope.” It does not mention O’Malley’s name once.)

O’Malley ran unopposed in both 2010 and 2014, before defeating Price quite comfortably in the 2018 election with substantial funding from law enforcement unions. Only her decision to retire after 2022 ended her time in office.

The Price recall effort should be viewed in the context of a national backlash in recent years against the so-called progressive prosecutor movement. High-profile targets have included Chesa Boudin in San Francisco, Larry Krasner in Philadelphia and Aramis Ayala in Orlando, to name a few. And Los Angeles DA George Gascón has faced a constant barrage of legal and political attacks since taking office in 2020, including no fewer than three recall attempts.

“Tough-on-crime” prosecutors, in California and elsewhere, have not only avoided similar attacks over rising crime rates in their jurisdictions, but have gotten an easier ride amid all kinds of personal scandals.

Yet, when even progressive candidates for district attorney slip up, California media bring out the pitchforks.

Anne Irwin of the organization Smart Justice put what’s been going in California on very well in a recent interview with the Intercept. “What’s remarkable,” Irwin said, “is that there has been almost no coverage of how an elected prosecutor runs their office until progressive prosecutors were elected. Then all of a sudden, there is intense scrutiny, much of it drummed up by the folks who are backing a recall, to make a case that the progressive prosecutor is a bad manager.”

Control over law enforcement policy is ultimately about power. Conservative law enforcement elements have amassed a great deal.

While some of her counterparts have managed to survive, the chances are that Price will share the fate of Chesa Boudin, who was ousted as San Francisco DA last year. Price’s 2022 election victory was narrow. And at least in the United States, optics about public safety carry more political weight than safety itself. The concept of safety, meanwhile, is rarely extended to the harms of incarceration that Price seeks to reduce.

Even if Price somehow manages to remain in office, powerful city residents will continue to hound her because they oppose her policies on principle, regardless of what specific case they might be able to make against her. This could render her incapable of changing very much about how her office does business.

Control over law enforcement policy is ultimately about power. Conservative law enforcement elements have amassed a great deal, and are practiced in deploying it at legal, media and populist levels. Progressives have simply not yet built enough of it to protect their candidates after they win elections.

Photograph by Basil D Soufi via Wikimedia Commons/Creative Commons 3.0

The post Oakland DA Recall Effort Reflects Double Standards  appeared first on Filter.

Chesa Boudin, for example, who was elected as San Francisco’s reformist DA in 2020, was recalled by voters in 2022. Kimberly Gardner, a Black woman who wished to change  the ethically corrupt St. Louis Circuit Attorney’s Office from the inside in Missouri, recently announced she would resign effective June 1. And Larry Krasner, one of the longest-serving and most high-profile of them all, has been under relentless political fire as his city, Philadelphia, looks poised to elect a pro-police mayor.

But voters elsewhere in Pennsylvania—in Allegheny County (Pittsburgh), a jurisdiction many national-level reformers were ready to write off—has just bucked this depressing trend. Even if the fight there isn’t over quite yet.

On May 17, Chief Public Defender Matt Dugan defeated long-term Allegheny County District Attorney Steve Zappala in the Democratic primary for top prosecutor, winning 56 percent of the vote on a decarceration platform.

Zappala’s style has been about washing his hands of responsibility for societal problems, despite both aggravating them and having the power to mitigate them.

Zappala, who has been the DA since way back in 1998, has often been an opponent of criminal justice reforms that are proven to help marginalized communities of color. In 2015, for example, he opposed moves by the City of Pittsburgh to decriminalize the possession of small amounts of cannabis. And in 2017, Zappala’s DA office created $2 million in court-imposed debt for community members, just to charge around 1,700 people with low-level drug-law violations.

His style as DA has been about washing his hands of responsibility for societal problems, despite both aggravating them and having the power to mitigate them. While Zappala has acknowledged that poverty and social problems are root causes of crime, he likes to remind critics that he is “not in charge of transportation, safe and decent housing, or education. I’m on the back end of government.”

That attitude runs counter to the philosophy of the reformist prosecutor movement, which refuses to silo crime and prosecution away from issues like inequality. “I do see a place for the district attorney to think more about crime prevention and to address the issues that are really driving people into the criminal justice system in the first place,” Dugan told the Pennsylvania Capital-Star.

He also stated that “Every policy that we have, every directive we have in the district attorney’s office, every new initiative will always be looked at through the lens of how does this impact racial disparity in the system?”

Dugan explicitly says he wants to reduce the county’s jail population.

Dugan has acknowledged the inability of the system to address substance use disorder and mental health, advocating for what he calls “true” diversion programs that would, he says, prevent people from being criminalized on low-level charges in the first place. And he explicitly says he wants to reduce the county’s jail population.

His campaign was boosted by over $750,000 in TV and mail ads from the Pennsylvania Justice and Public Safety PAC, which is funded by George Soros—whose support has been critical to getting many reform prosecutors elected around the United States.

Steve Zappala, on the other hand, is a part of a very powerful Pennsylvania family. His late father, Steve Zappala Sr., was once the Chief Justice of the Pennsylvania Supreme Court. And 

Dugan has said that his influence as such an entrenched incumbent weighed against his campaign. “Steve had long-standing relationships with labor and other folks and a lot of folks were afraid to donate to us for fear of retribution,” he said after winning.

And Zappala may not be done yet. Despite his primary defeat, he has been teasing the idea of a run in the general election—perhaps under the Republican Party banner, now that Dugan is the Democratic candidate.

Whether or not Dugan is confirmed as the new DA in November will go a long way to indicating the prospects for the wider reform prosecutor movement.

If Zappala were to succeed with such a strategy, it would not be his first comeback when reformers thought his time in his powerful position could be over.

In 2019, two seemingly credible reformers challenged him back-to-back in the primary and general elections.

But Turahn Jenkins, the 2019 Democratic primary challenger, imploded after he described LGBTQ people as “living in sin.” Whatever good decarceration ideas he had became irrelevant at the ballot box, where he lost by almost 20 percentage points.

And in the general, Team Zappala was able to advertise an allegedly racially-biased jury strike that opponent Lisa Middleman, who ran as a progressive independent and is now a Court of Common Pleas judge, made early in her career as a public defender.

Whether or not Dugan is confirmed as the new DA in November will go a long way to indicating the prospects for the wider reform prosecutor movement after severe recent headwinds.

Photograph via Rawpixel/Public Domain

The post Pittsburgh Bucks National Trend by Backing Reform Prosecutor in Primary appeared first on Filter.

Algorithms that include factors such as prior criminal records are used both in sentencing and in bail determinations—amplifying racial and other biases that already exist in the entered data because of police and prosecutorial discretion. Algorithms are even used to determine which communities face heavier policing.

Europe, which already has far lower incarceration rates than the US, differs in this regard, too.

On May 11, two committees of the European Parliament, the lower house of the European Union’s legislature, voted 84-7 (12 abstentions) to adopt a “draft negotiating mandate” on the EU’s pending AI Act. This amendment would ban “intrusive and discriminatory uses of AI systems such as … predictive policing systems (based on profiling, location or past criminal behavior).”

The amendment, if it becomes EU law, effectively puts algorithmic policing, prosecution and sentencing off-limits.

In this context, “predictive policing” covers both policing and other criminal justice functions, and refers to a wide categories of information, from racial demography to “personality traits and characteristics.” The latter is important, because some criminal-legal systems, as in the United States, use evidence of certain mental health disorders, especially personality disorders, as justification for harsher punishments, including the death penalty.

The amendment, if it becomes EU law, effectively puts algorithmic policing, prosecution and sentencing off-limits—in the same pile as biometric systems that use things like race, gender, and religion to make decisions about peoples’ rights.

The EU has not yet outright banned algorithmic sentencing, for example. But the amendment makes clear that the “placing on the market, putting into service or use of an AI system for making risk assessments of natural persons or groups thereof in order to assess the risk … for offending or reoffending or for predicting the occurrence or reoccurrence of an actual or potential criminal or administrative offense based on profiling … or on assessing personality traits and characteristics, including the person’s location, or past criminal behavior” would be prohibited, as per the new Article 5 of the AI Act.

The two committees in question, the Internal Market Committee (IMCO) and Civil Liberties Committee (LIBE), only contain 103 Members of European Parliament (MEPs), out of 705 total. But they seem to be representative of the parliament’s overall political balance. That bodes well for the amendment’s chances of eventual ratification. It also means the vote cannot be characterized as coming only from the hard left, as US algorithm supporters would doubtless like to be able to claim.

Out of 45 full members of IMCO, 12 are aligned with the center-right European People’s Party (PPE, the largest group in the parliament as a whole); four with the right-wing European Conservatives and Reformists (ECR); and five with the far-right Identity & Democracy (ID) party. Seven represent the centrist party Renew. As for LIBE, out of 69 full members, 18 are aligned with PPE, 10 with Renew, six with ECR and seven with ID.

Perhaps when dehumanization is the norm, as in the most incarcerated nation on Earth, newer dehumanizing tactics are pre-normalized.

Why, then, are US lawmakers and officials so much more comfortable with the robot-ification of criminal justice and all its consequences than their European counterparts?

Perhaps because when dehumanization is the norm, as in the most incarcerated nation on Earth, newer dehumanizing tactics are pre-normalized. And perhaps because in this context, not enough Americans, despite the efforts of an activist minority, seem to care about the “justice” part of criminal justice.

Not all of the organizations that should care about it seem to care enough, either. Witness the recent choice by major philanthropy fund Arnold Ventures to appoint Jennifer Doleac as head of its criminal justice division. Doleac is a major believer in the idea that decision-makers in the justice system should be fed more algorithmic tools, despite the fact that algorithmic justice can effectively target vulnerable defendant groups. Yet, perhaps this should not surprise us. Despite Arnold Ventures’ association with reforms, it has been perhaps the organization most responsible for tying bail reform initiatives to risk assessment algorithms throughout the US.

Matters on this side of the Atlantic are set to get worse. Cities including Rialto, California are now voting to centralize both private and public surveillance camera footage, then hand all footage to the police. That will criminalize yet more people, especially those who have no option but to live in public spaces, neatly sidestepping the agency of those members of the public who might choose not to report people to the police.

For now, a very different approach in the EU is something US reformers will be able to point to more with hope than expectation.

Photograph by Pietro Jeng via Unsplash

The post EU Moves Toward Banning Algorithmic Policing and Sentencing  appeared first on Filter.

Any “cop cred” Gascón once had went out the window when he made the jump to prosecutor, serving as San Francisco DA from 2011-2019 before controversially switching to LA. His record in much of that time has been far from radical. He supported decarceration efforts like Proposition 47, which downgraded drug possession and low-level property crimes from felonies to misdemeanors; on the other hand, he refused to indict killer cops.

The relentless battles that have marked Gascón’s career are now coming to a head, as California’s Supreme Court weighs a major decision.

Yet, largely because of the nature of the state’s other DAs, Gascón has come to be seen as the arch-enemy of the state’s mass incarceration proponents. And the “tough-on-crime” lobby has repeatedly torn into Gascón. Seemingly every time a disgruntled right-leaning prosecutor left or sued his office, conservative national news joined the pile-on.

The relentless battles that have marked Gascón’s career are now coming to a head, as California’s Supreme Court weighs a major decision on the contours of prosecutorial discretion. Oral arguments in The Association of Deputy District Attorneys for Los Angeles County v. George Gascón are expected to be heard later this year.

Early in Gascón’s short tenure as Los Angeles DA, many of his deputy prosecutors revolted against his new policies, which included ending cash bail and not seeking the death penalty.

At the end of 2020, the Los Angeles Association of Deputy District Attorneys (LAADDA), the union that represents the deputies, sued to try to overturn some of Gascón’s policies—including advising the deputies to not use the state’s onerous “three strikes” law, which generates much longer prison sentences for people with prior felony convictions.

Proponents of “three strikes” and similar laws have long argued that it makes criminological sense to increase punishment for people who repeatedly transgress. Opponents point out that regardless of intent, these laws have little deterrent effect—and that the resulting sentences are unconscionably harsh.

LAADDA aggressively advocates against nearly all criminal justice reforms. The union is known for a hard-right ideology, and in 2022 its former leader made racist social media posts in attacking a Black DA special advisor to Gascón.

In the intermediate appellate decision, judges ruled that the state law must universally force prosecutors to allege prior felony strikes to ensure harsher prison sentences.

So far, the courts involved in LAADDA’s lawsuit against DA Gascón have shown little skepticism about the union’s motives. Most recently, the division of the California Court of Appeal based in Los Angeles mostly found in favor of LAADDA and against Gascón—despite being asked to rule the other way by illustrious legal names including arguably the top constitutional law expert in the country, UC Berkeley Law Dean Erwin Chemerinsky.

In this intermediate appellate decision, the judges ruled that the state law must universally force prosecutors to allege prior felony strikes to ensure harsher prison sentences for defendants.

While prosecutors do not have to prove these strikes, they can’t just botch doing so in protest. Yet it is hard to imagine a decarceral prosecutor regularly having a good argument for being unable to prove a prior felony conviction. (All professional prosecutors, you would think, can easily find someone’s past criminal record.)

That leaves two options for a prosecutor like Gascón who wants to avoid three-strikes sentencing in California: dismissal of strike enhancements for “lack of sufficient evidence” of past convictions, which is never going to happen much; or their dismissal under a single mitigating law.

That law, Section 1385, does take into account many of the concerns of criminal justice reformers, such as disparate racial impacts and how trauma and mental illness contribute to the commission of crime.

In practice, however, courts find way to limit the applicability of mitigators. In the death penalty litigation world, for example, lawyers often argue about how bad a mental illness needs to be to matter. While bipolar disorder or schizophrenia may save someone from the death penalty, depression, no matter how bad, will almost never suffice. Similarly with trauma: If the trauma is not the result of truly despicable crimes committed against the defendant as a very young child, courts usually will not care.

So far, LAADDA is winning what many must feel is a rigged game.

As the case currently stands, it seems that executive branch power in California is weaker than many people thought. LA voters elected DA Gascón on a platform to reform the system, and accordingly he sought to do that, even if he’s never gone as far as progressives would want.

But the Court of Appeals ruling suggests that legislators alone call the shots, leaving elected prosecutors as cogs in a one-branch machine. So far, LAADDA is winning what many must feel is a rigged game.

The California Supreme Court will now have a chance to adjust this balance, in a way that could in practice spare many people years in prison, on Gascón’s watch and beyond.

Will it do so? In the last few years, the court has been willing to exercise its authority in sensible ways that made the “tough-on-crime” crowd angry, such as when it ruled that Proposition 66 (2016), which would have created an arbitrary five-year deadline for all death penalty appeals, was unconstitutional.

Proposition 66 had won the popular vote, just as Gascón would likely lose it today, because knee-jerk reactions on crime often win votes.  

Photograph of DA Gascón in 2022 by Shawn via Flickr/Creative Commons 2.0

The post Will CA Supreme Court Force DA Gascón to Use “Three Strikes” Law? appeared first on Filter.

John Arnold, a billionaire once known as the “King of Natural Gas,” founded the organization with his wife, Laura. He has previously “declared war on bad science,” as WIRED put it. Criminal justice reform is one spoke in the fund’s multi-faceted policy wheel.

But critics have questioned where Arnold Ventures stands after its appointment, announced on March 8, of Texas A&M Associate Professor of Economics Jennifer Doleac as its new executive vice president of criminal justice.

“Her expertise, passion, and commitment to improving the criminal justice system through research and evidence align perfectly with our mission, and we are confident that her leadership will have a significant impact on our efforts to change the system to improve people’s lives,” said Arnold Ventures CEO Kelli Rhee in the announcement.

Many in the field hold a different view. Doleac, who obtained her PhD in economics from Stanford University in 2012, has since earned a reputation for a contrarian line of research accused of ignoring the humanity of directly impacted people. Neither Doleac nor Arnold Ventures responded to Filter’s requests for comment.

Probably the most inflammatory work Doleac has published concerned naloxone, the lifesaving opioid-overdose antidote.

Titles of Doleac’s past papers include: “Wrap-Around Services Don’t Improve Prisoner Reentry Outcomes,” “The Unintended Consequences of ‘Ban the Box’: Statistical Discrimination and Employment Outcomes When Criminal Histories are Hidden,” and “Keep the Kids Inside? Juvenile Curfews and Urban Gun Violence.”

Doleac has also previously platformed research which suggested that parental incarceration in Colombia is beneficial to educational attainment for children.

But probably the most inflammatory work Doleac has published concerned naloxone, the lifesaving opioid-overdose antidote.

Her 2018 paper (with Anita Mukherjee), “The Effects of Naloxone Access Laws on Opioid Abuse, Mortality, and Crime,” addressed the supposed “moral hazard” of naloxone provision. It concluded that access was creating a “tragedy of the commons” issue, essentially encouraging reckless drug use.

The paper’s methodology, lack of engagement with the public health literature, and overall direction were widely critiqued.

“Their study, which … contradicted earlier research, provided fodder for those who wanted to argue that naloxone distribution is ineffective—or worse, that it increases crime because it keeps more people who use opioids alive,” wrote Dr. Sheila Vakharia, of the Drug Policy Alliance, for Filter.

“I find it utterly disheartening that a discipline as important as public health is filled with so many people who collectively have so little understanding of rigorous research methods,” Doleac wrote in response to Filter’s questions about such criticisms in 2018. “Advocates should acknowledge that many of their strongly-held priors are not evidence-based.”

What now infuriates some advocates is how Doleac has seemingly been folded into the world of “reform” by her new role. This may have happened in part because she co-authored a 2021 paper that found beneficial effects to former Suffolk County (Boston) District Attorney Rachael Rollins’ policy of not prosecuting a small list of nonviolent misdemeanors.

“This seems like a big step backwards for Arnold Ventures. They already had a credibility problem among many of the people organizing in heavily-policed communities.”

Alex Vitale, a Brooklyn College sociology professor widely known for his support of police abolition, went so far as to write an open letter to Arnold Ventures decrying the appointment.

Doleac, he wrote, “has taken numerous positions based on one or two econometric studies that fly in the face of common sense and decades of alternative findings just to aggrandize herself at the expense of communities subjected to abusive policing and corrections policies that she supports.”

“I can no longer be associated with Arnold Ventures,” he concluded, “and wish to formally withdraw my previously solicited Letter of Interest … and will publicly urge others to do the same.”

“This seems like a big step backwards for Arnold Ventures,” Vitale later told Filter. “They already had a credibility problem among many of the people organizing in heavily-policed communities and now they have decided to double down on neoliberal econometrics as their method for improving justice.”

“It was that viewpoint that has been the chief driver of both budget cuts for the most vulnerable and ever-more intensive and invasive policing,” he continued. “This will most likely result in public policy positions that favor more policing and incarceration, rather than investments in high -needs communities.”

Kelli Garant, a peer care coordinator in the harm reduction field in Philadelphia, also expressed dismay at the appointment. In 2018, soon after leaving treatment for opioid use disorder, she overdosed in the bathroom of her home.

If it weren’t for her husband having earlier obtained naloxone, she wrote to Filter, “I would be dead today … Without it, my husband would not have a wife. I would have missed out on both of my children getting married, my son graduating college, and meeting my only grandchild.”

“It is disturbing,” she added, “to think that someone, in such an important role during a pandemic, would not find this life-sustaining medication as vital as having a smoke detector in their home or a fire hydrant on the corner of their street.” 

She wishes she could speak with Doleac face-to-face about what naloxone means in real life.

“America’s criminal justice system strips too many people of their jobs, families, health, and dignity,” states Arnold Ventures’ website. “It puts people of color at risk, disproportionately harms low-income people, limits the potential of juveniles caught in the system, and doesn’t give everyone the opportunities they need to get back on track.”

Little about Doleac’s track record suggests that her appointment will challenge those realities.

Photograph by Intropin via Wikimedia Commons/Creative Commons 4.0

The post Reform Funder Under Fire for Hiring Naloxone “Moral Hazard” Researcher appeared first on Filter.

Recognition of basic human rights for convicted people fits with Gov. Shapiro’s Jewish faith, which became an important part of his successful electoral campaign as he repeatedly referenced it last year. While ancient Jewish authorities did not forbid the death penalty outright, the Talmud includes stirring discussions like this:

“A Sanhedrin [court] that puts a man to death once in seven years is called a murderous one. R. Eleazar ben Azariah says ‘Or even once in 70 years.’ R. Tarfon and R. Akiva said, ‘If we had been in the Sanhedrin no death sentence would ever have been passed’; Rabban Simeon b. Gamaliel said: ‘If so, they would have multiplied murderers in Israel.'”

Nonetheless, Shapiro’s announcement was somewhat surprising from a man known for harshness and lack of tact in his former role as state attorney general, which he held from 2017 until being sworn in as governor this year. While Gov. Wolf was seen as a moderate supporter of criminal justice reform, AG Shapiro fought to retain the death penalty, and engaged in media subterfuge to undermine Philadelphia’s reformist top prosecutor.

If Shapiro really wants to change, there are numerous other things he should do. Here are three of them.

Support Larry Krasner

Philadelphia District Attorney Larry Krasner may have won reelection with over two-thirds of the vote in 2021, but that is not because he wasn’t a vulnerable candidate. It’s more that his opponents in both the primary and general elections—Carlos Vega (D) and Chuck Peruto (R), respectively—were notably weak.

Any Republican would face an uphill task in a Democrat-dominated city, and Peruto had personal vulnerabilities besides. As for Vega, his dogged pursuit of a murder conviction for an innocent man brought to mind his old boss, the “Queen of Death” DA Lynne Abraham.

The national progressive prosecutor movement has seemingly ground to a halt in the last year or so, with just a few luminaries of that once-promising avenue for reform still standing. Krasner is by far the most important. (George Gascón, the Los Angeles DA, has a larger jurisdiction, but despite overcoming a recall campaign, his own office and funders are in full revolt and his days in office look numbered.)

With Shapiro’s unequivocal backing, Krasner could yet have the staying power to keep challenging the mass-incarceration status quo. 

Krasner, who has served since 2018, has declined to prosecute marijuana possession and many sex work charges, reduced use of cash bail, pursued police misconduct and set up a Conviction Integrity Unit that has exonerated dozens of wrongfully convicted people, among other measures. In 2019, he filed a motion with the state Supreme Court in an attempt to declare the death penalty unconstitutional in Pennsylvania.

Unsurprisingly, Krasner has plenty of enemies, including among Democrats. He was impeached by the Pennsylvania House in October 2022 on “misbehavior in office” charges—which were then found by the state’s Commonwealth Court not to meet the required legal standard. With Shapiro’s unequivocal backing, Krasner could yet have the staying power to keep challenging the mass-incarceration status quo. 

Support Independence for the Attorney General’s CIU

One of the most heartbreaking clemency advocacy stories involves John Brookins, a Black man who has served 32 years in Pennsylvania state prison for a murder he swears he did not commit. Unfortunately for Brookins and his loved ones, the Bucks County District Attorney’s Office adamantly refuses to reinvestigate his case—even to check the DNA.

There are only two ways for John Brookins to leave prison alive. First, the Attorney General’s Conviction Integrity Unit could reinvestigate the case, bypassing Bucks County DA Matthew Weintraub entirely. Second, a governor could give him clemency.

If AG Shapiro was any prelude to Gov. Shapiro, a commutation seems out of the question. The crime Brookins is associated with, despite severe doubt over his guilt, is too bloody. But the governor can do a seemingly more moderate, “good government” thing that could impact many people besides Brookins: Support double-checking the evidence.

Shapiro should advocate for an “independent” Conviction Integrity Unit, with systems in place to ensure CIU investigations are not impacted by conflicts.

One problem is, Acting Attorney General Michelle Henry spent over 20 years in the Bucks DA office before becoming the DA herself in 2008. She likely has some level of personal relationship with major players in the legal drama that led to Brookins’ conviction. For example, Brookins was prosecuted by recently retired Judge Diane Gibbons, who later caused another man’s wrongful conviction for attempted murder as DA. Henry was Gibbons’ major crimes unit chief.

Gov. Shapiro has vast major prosecutorial experience, and perhaps if he told Henry that Brookins’ case was worth looking into, she might actually do it.

Otherwise—and preferably—Shapiro should advocate for an “independent” Conviction Integrity Unit, with systems in place to ensure CIU investigations of possible innocence cases are not impacted by conflicts. Many DA offices across the country already have such checks and balances, such as the Wayne County (Detroit) Prosecuting Attorney’s Office in Michigan.

In a statement given to Filter, Karen Brookins, the wife of John Brookins, said, “Where innocence may be a possibility, and the true perpetrator is free to cause further harm, wouldn’t it be in the best interest of society to ensure that they got it right?” She also recommended that a nonprofit dedicated to conviction integrity, such as the Innocence Project, provide oversight.

Support Safe Consumption Sites

During the Wolf administration, AG Shapiro occupied a role as Pennsylvania’s ultimate law enforcement-centrist Democrat. Krasner was the most leftwing major figure in this sphere. The rightwing hardliner was US Attorney Bill McSwain, the Trump-installed top federal prosecutor, based also in Philadelphia.

Where these dynamics became most apparent was in the fight over safe consumption sites (SCS, also known as overdose prevention centers), after the nonprofit Safehouse announced its plans to create one in Philadelphia.

This evidence-based response to the opioid-involved overdose crisis, emphatically demonstrated to save lives, was openly supported by Krasner. McSwain heavily implied that he would criminally charge anyone who dared open such a center, despite their positive impact and legality in Canada and elsewhere. He sued Safehouse in 2019, starting a legal battle that has continued ever since.

Shapiro stated that there is “no safe way to inject yourself with this type of poison.”

AG Shapiro, meanwhile, mediated by using that special Democrat-in-law-enforcement muscle—the one that takes no principled stand on any controversial issue and uses the police as the vanguard in making sure nothing changes. He opposed SCS, stating in 2018 that there is “no safe way to inject yourself with this type of poison.”

Presumably, that means he considers today’s devastating and unprecedented overdose crisis “safe” for people who use drugs. And, as of December 2022, that is where Shapiro still stands.

The Biden administration, which has repeatedly delayed taking a position on SCS, may eventually come around. Other states aren’t waiting until then. Although the court case is federal, Gov. Shapiro’s support would be a difference-maker in Pennsylvania. If he continues to withhold it, he’ll effectively be helping to impose the very sentence he wants the legislature to ban on more people who use drugs.

Photograph of Shapiro in 2021 by office of Governor Tom Wolf via Flickr/Creative Commons 2.0

The post PA Gov. Shapiro Wants to Ban the Death Penalty. He Mustn’t Stop There. appeared first on Filter.

Philadelphia’s chief public defender, Keisha Hudson, wrote last year, for example, that “Effectively representing our clients, which includes connecting them to resources proven to address their own traumatization and victimization, is critical to stopping the cycle of violence and truly creating public safety.”

This is not untrue—especially in a large urban public defender office that receives philanthropy money as an additional revenue stream. These kinds of offices can help their clients rebuild their lives, even before a conviction is handed down, in ways that reduce future risks for clients and others. That’s clearly a good thing.

But most public defenders’ offices receive only state money, and most US states share the so-called “tough on crime” ideology. That means such offices, with their overworked and underpaid staff, rarely have the funding or time to “connect clients to resources.” And they usually don’t.

It is not a macro-level job that principally demands consideration of what is best for society at large—even if its existence is inherently beneficial to society.

There are vital tasks that they do regularly perform, however. They represent the interests of clients who are not wealthy, both before and during criminal cases. In doing so, they look for the most brazen constitutional violations by police, such as illegal search or seizure, or unlawful interrogations. And armed with this or other information, they negotiate with prosecutors to try to get charges dismissed or reduced.

It is, in other words, not a macro-level job that principally demands consideration of what is best for society at large—even if its existence is inherently beneficial to society. Rather, it is a client-oriented job, protecting the rights of the individual. What is in the best interest of a client is sometimes not in the best interest of public safety, even long-term. And that’s ok.

The “public safety” framing of public defenders’ roles has some influential proponents. But it seems to me a mistaken advocacy strategy—perhaps designed to protect precarious budgets, or to sway wavering segments of public opinion. Amid an established national backlash to the George Floyd-inspired wave of support for decarceration, it likely won’t even do that.

I would argue that leading with a “public safety” framing of public defenders’ role gives too much credence to the older position that counsel is guaranteed in criminal proceedings merely because of “due process.”

Instead, I believe it’s critical that we take ownership of defenders’ main task of defending people accused of crimes, including the most heinous. Defenders can and should be proud of that, because they are the only public officials who fight for the humanity of people in this position.

It should not be controversial to argue that all people in the dock are human. But in our culture, this is often treated as an incitement. The right hates people accused of crimes, professing empathy for victims while adhering to a repressive “law and order” concept. And while the left professes support for decarceration, it reserves its sympathies, in certain cases, for victims, and—certainly in the cases of many office-holders—is perpetually wary of the “soft on crime” label the right loves to exploit. Many who may feel compassion for the traumatized or mentally ill person who committed a crime are politically incentivized to keep their mouths shut.

Public defenders exist primarily to protect not “public safety,” but the accused. That matters, and we should platform and value it.

It is understandable that public defenders, with incredibly arduous caseloads, want to protect their woefully inadequate budgets. It is common for public defenders to be paid tens of thousands of dollars less than their prosecutorial counterparts, in a reflection of how little the system values “due process.”

But public defenders I have spoken with also want respect. They are sick, among other things, of being pounced on whenever they wish to have a political voice outside the courtroom.

I cannot see, however, how a “public safety” narrative will help with that, if it obscures the principle purpose of the role and is even illogical in some instances: Would using the Fourth Amendment to suppress evidence of an alleged murder weapon to get an acquittal, for example, be in the service of public safety? The human-rights justification, on the other hand, is as clear as it might be unpopular.

An amplified “public safety” framing could even risk undermining the relationship between defender and client, when trust, in this system, is so hard to build but can make all the difference to a successful defense.

The very existence of the public defender in a country like ours could be seen as a small miracle, and I have no wish to question the motivations of those who judge, in their beleaguered positions, that different tactics are necessary to ensure the survival of their work.

Some public defenders are vocal public advocates for human rights, for instance, while others—a group whose position I’ve come to understand more than I once did—feel they can better serve current and future clients by keeping their heads down, so as not to attract damaging political fire.

Anyone with the dedication to fight for the rights of people accused of crimes deserves our gratitude. In this climate, it’s to be hoped that they practice plenty of self-care.

But those of us whose work is not directly threatened by speaking out, at least, should say it plainly: Public defenders exist primarily to protect not “public safety,” but the accused. That matters, and we should platform and value it.

Photograph by Nick Youngson via Blue Diamond Gallery/Creative Commons 3.0

The post Public Defenders Aren’t Principally About “Public Safety,” and That’s Ok appeared first on Filter.

The most high-profile outcomes give us little to read into the tea leaves. In Pennsylvania, Democrat John Fetterman, who was forthright in his support for some key planks in the criminal justice reform platform, narrowly defeated Dr. Oz, the Republican. However, in Wisconsin, which is in some ways not that different from Pennsylvania, the race went the other way, with Republican Ron Johnson squeezing out Democrat Mandela Barnes.

Looking at county prosecutor races, where crime is the only issue on the ballot, some more meaningful pictures arise. Take, for example, the late entry of the Midwest into the progressive-prosecutor party.

In Hennepin County (Minneapolis), Minnesota, which has over one million residents, Mary Moriarty heavily defeated Martha Holton Dimick by a full 16 percentage points.

Holton Dimick, a conservative Democrat and former prosecutor, was endorsed by Mayor Jacob Frey, a major opponent of the defeated plan to replace the Minneapolis Police Department with a re-envisioned public safety agency. Holton Dimick emphasized her belief that the prosecutor’s job is ultimately “safety first”—a euphemism for the status quo.

Moriarty has a different perspective. A progressive candidate who ran on the need for police accountability, she was previously the county’s chief public defender, but was fired by the state public defender board in retaliation for her vocal advocacy for criminal justice reform.

Pamela Price, a pro-decarceration civil rights lawyer, achieved a stunning victory in Oakland.

Not only did Moriarty do extremely well in the aggregate, but she beat Holton Dimick in almost every precinct in the county. The only places where Holton Dimick did consistently better were the likes of Orono, on the county’s most rural edges, and Edina, a wealthy suburb that skews older in age. Of course, Edina and Orono are comparatively crimeless, so their voters are weighing in on an issue that more likely than not has little personal impact on them.

Polk County, Iowa (Des Moines), the largest county in a state previously untouched by the progressive prosecutor movement, will also have a reformist top prosecutor. Kimberly Graham promised to focus on crimes of violence, while cutting back on prosecutions of nonviolent charges.

While reformers will welcome these victories, Moriarty and Graham were both favorites to win.

That’s not true of Pamela Price, a pro-decarceration civil rights lawyer who achieved a stunning victory in Almeda County (Oakland), confirmed long after publication time. Price becomes the first Black district attorney for the county, securing 53 percent of the vote. Her opponent, Terry Wiley, the current chief deputy DA in a carceral machine that disproportionately harms Black people, had been expected to win; voters decided otherwise.

Maricopa County (Phoenix), Arizona, keeps on narrowly missing out on a reformist top prosecutor.

But in Plymouth County, Massachusetts, another place that you might expect to be ripe for reform,  Rahsaan Hall—like Price, a Black civil rights lawyer on the left of the Democratic Party who wasn’t favored to win—was heavily beaten by incumbent Timothy Cruz, Massachusetts’ only Republican DA, 63 percent to 37.

Meanwhile Maricopa County (Phoenix), Arizona, keeps on narrowly missing out on a reformist top prosecutor.

After the latest election, hard-right incumbent Rachel Mitchell (R) appears to have kept her seat, declaring victory on November 14. Her reform-minded opponent Julie Gunnigle (D), who promised to “redefine public safety,” only just lost the 2020 election. She seems to have suffered the same fate again, achieving 48 percent of the vote at publication time—exactly the same as a previous reform candidate achieved there in 2016. Mitchell is well known for her softball questioning at Supreme Court Justice Brett Kavanagh’s Senate confirmation (and arguably being a proximate cause for the overturning of Roe v. Wade).

Elsewhere, DA Brooke Jenkins kept her seat as expected in San Francisco, despite—or more likely, because of—her draconian drug-warrior stance. But King County (Seattle) will keep a reformer, Leesa Manion, in charge of the prosecuting attorney’s office.

Aside from Price’s impressive victory, none of this is terribly surprising. Overall, the movement to reform the criminal-legal system through prosecutors now behaves more like shifting sands than the wave it resembled just a few years ago. Whether and how much it appears to move depends very much on where you’re standing.

Correction, November 23: This piece has been edited to reflect Pamela Price’s victory, which was confirmed after publication time. Vote counts at publication time had suggested she would narrowly be defeated.

Photograph of Minneapolis by Chad Davis via Flickr/Creative Commons 2.0

The post Reform Wins in Midwest, Oakland in 2022 Prosecutor Elections appeared first on Filter.