Aug. 30, 2018: Political Report

Daniel Nichanian

Massachusetts hosts three Democratic primaries for district attorney on Sept. 4 that all testify to the transformed tone of many prosecutorial elections. Each features candidates running on far-reaching reform platforms—raising the specter of concurrent candidacies splitting voters inclined to support reform—and each reshape the state’s criminal justice system.

  • Aug. 28 primaries: Florida Democrats nominate candidate calling for far-reaching criminal justice reform, and more

  • Massachusetts: Middlesex County debates guidelines and data necessary to achieve reform

  • Massachusetts Berkshire County’s new prosecutor faces two reform-minded challengers

  • Massachusetts: Will Suffolk County’s crowded field hinder reformers’ chances?

  • Missouri:Oregon DAs denounce speech by St. Louis County prosecutor


Aug. 28 primaries: Florida Democrats nominate candidate calling for far-reaching criminal justice reform, and more

Tallahassee Mayor Andrew Gillum won the Democratic nomination for Florida governor in an upset victory. Gillum ran as the most progressive candidate in a crowded field of well-funded candidates. He has outlined a far-reaching criminal justice reform agenda, recently profiled by the Florida Times-Union’s Andrew Pantazi: He advocates legalizing marijuana for recreational use, eliminating private prisons, reforming cash bail reform in a “more aggressive” manner than New Jersey’s reform, and repealing Florida’s “Stand Your Ground” law.

Strikingly, in proposing to overhaul the sentencing code and enable judges to sidestep mandatory minimums, Gillum does not limit such reforms to low-level or “nonviolent” offenses, as politicians often do. He also says he that would suspend the death penalty by not signing any execution warrants “until we can come up with some answers as to why it is there seems to be in this state a racial bias when it comes to the application of the death penalty.”

Gillum now faces U.S. Representative Ron DeSantis, a former prosecutor who won the GOP primary with President Trump’s support. DeSantis has avoided outlining a precise platform on criminal justice, but his record and rhetoric make for a stark contrast with Gillum. DeSantis has used the familiar trope of decrying judicial decisions favorable to defendants as “technicalities,” a term he employed at a campaign rally to denounce a ruling by the state Supreme Court that required death sentences to be handed by unanimous juries. “I have a tree and a rope in my backyard. Bring back the hanging tree!” yelled a supporter at the rally upon hearing DeSantis’s comments. DeSantis opposes legalized marijuana and opposes Amendment 4, the November referendum to restore the voting rights of people who complete the terms of a felony conviction.

Adding to the stakes is the legal battle over whether departing GOP governor Rick Scott has the authority to appoint replacements for the three justices whose terms expire in January, right when Scott’s term expires, or whether the new governor ought to make the appointments. The balance of Florida’s judiciary hangs on November’s election coupled with this legal battle.

There were two other elections held on Aug. 28 that I profiled in past newsletters:

  • State attorney of Florida’s 20th Judicial Circuit: Assistant state attorney Amira Fox won this GOP primary against Chris Crowley, a former prosecutor. While both ran on being “tough on crime,” Crowley went further in effectively casting diversion programs and pretrial resolutions as failed prosecutions; Crowley also targeted Fox over her Palestinian heritage. Only Fox’s name will appear on the November ballot.
  • District Attorney of Tulsa County, Oklahoma: Tulsa County District Attorney Steve Kunzweiler prevailed in the GOP runoff against Ben Fu, who had the backing of the Tulsa Fraternal Order of Police. Police unions have warred with Kunzweiler, who has otherwise opposed proposals to reform Oklahoma’s criminal justice system, ever since he pressed charges against a police officer who shot and killed an unarmed Black man. Kunzweiler faces Democrat Jenny Proehl-Day in November.


Massachusetts: Middlesex County debates guidelines and data necessary to achieve reform  

The district attorney of Middlesex County—the state’s most populous county, home to Lowell and Cambridge—is campaigning for re-election as a progressive who has already been reforming the county’s criminal justice system. Her opponent in the Sept. 4 Democratic primary rejects that characterization, questioning the reliability of reform announcements absent precise guidelines and absent tools to track implementation.  

Take cash bail, for instance. The Vera Institute of Justice found that the number of pretrial detainees has more than doubled since Marian Ryan became DA in 2013. In January, Ryan announced an important reform: She would no longer request cash bail from people charged with low-level nonviolent offenses. But her announcement remained vague as to what offenses it would cover. Jessica Brand reported in The Appeal that Ryan’s office continued to seek cash bail in cases that fall into a layperson’s definition of low-level and nonviolence. “[DAs know] the definition of ‘nonviolent’ or ‘low level’ is a murky one … that they can make up as they go along,” Atara Rich-Shea of the Massachusetts Bail Fund told The Appeal.

Ryan’s challenger, Donna Patalano, says that her first priority is “real reform of cash bail.” “I will specifically define the offenses the bail policy pertains to so that the public can hold the office accountable, and so that prosecutors in the courts know how to implement the policy,” Patalano pledged. In a July debate, Ryan rejected creating such a list. Other recent DA races (such as Boulder’s in June) have featured this same debate over whether reforming the bail system requires limiting prosecutors’ discretion or entrusting them to exercise it wisely.

Patalano, who was endorsed by the Boston Globe this week, also faults Ryan for not releasing data pertaining to her policies, including her bail requests. If [the criminal justice system] functions like a black hole, then how can we know what we’re doing is fair and just?” Patalano asked. She has thus questioned whether all groups enjoy equal access to rehabilitation. “Who gets diverted? Who gets to go to drug court? Who gets pretrial probation? We don’t know any of this,” she said. Ryan has answered by emphasizing her dedication to reform. “I’m not waiting for the data to show me there’s an inequity,” she said.

Ryan has advocated legislative reforms that have put her at odds with her fellow prosecutors. She was the only one of the state’s 11 DAs to not sign a letter defending mandatory minimums in 2015; she later broke with nearly all of these prosecutors in supporting legislative reforms that repealed mandatory minimums for some drug offenses. In answering an ACLU questionnaire, Ryan highlights these positions. She also says that she does not back repealing such minimums for all drug-related offenses, whereas Patalano states that she supports their full repeal.


Massachusetts: Berkshire County’s new prosecutor faces two reform-minded challengers

Two defense attorneys who wish to fight mass incarceration are challenging the DA of Berkshire County in the Sept. 4 Democratic primary. “The Berkshire DA’s office … has been stuck in the dark ages for decades,” says Judith Knight, who assails what she describes as a “lock ’em up and throw away the key” approach that causes disproportionate sentences and hostility to diversion. “The current District Attorney’s Office is stuck in 1980s ‘tough-on-crime’ mindset,” explains Andrea Harrington, who credits her involvement against overincarceration to her law school professor Angela J. Davis, the author of Arbitrary Justice, a book on prosecutorial power.

On Sept. 4, Harrington and Knight face Paul Caccaviello, who became the DA in March thanks to the maneuvering of his predecessor David Capeless. Eoin Higgins reported in reported The Appeal that Capeless coordinated with the office of Governor Charlie Baker to resign just months before this election and to have Baker appoint Caccaviello, who was then first assistant district attorney. This is why Caccaviello is facing voters as the incumbent, an enviable advantage. He has the support of the Berkshire County sheriff and of local police unions.

Harrington and Knight both advocate shifting toward more rehabilitative policies by making greater use of diversion and restorative justice programs, implementing specialized courts with a rehabilitative mission, and curbing charging practices. They also emphasize that they would confront the system’s racial biases; Harrington notes that the share of African Americans among the county’s pretrial detainees is more than five times the share of African Americans in the county’s overall population. Knight and Harrington articulate these approaches in more detail in the ACLU’s candidate questionnaire, where they also commit to supporting repeal of all mandatory minimums and to curbing the use of cash bail.

Caccaviello has not responded to this questionnaire, the only candidate to not respond among all 10 of the Democrats running in the Massachusetts elections I profile today.


Massachusetts: Will Suffolk County’s crowded field hinder reformers’ chances?

Dan Conley has served as the district attorney of Suffolk County and Boston since 2002, a tenure during which he has opposed reform legislation like scaling back mandatory minimum sentences and has aggressively prosecuted drug cases. Conley is not pursuing re-election this year, and many of the candidates running to replace him are campaigning on far-reaching reform platforms. In June, a candidate forum was held inside a jail, a national first.

Conley has endorsed assistant district attorney Greg Henning in the Sept. 4 Democratic primary. The Boston Globe writes that this development “could send a strong signal to voters who are satisfied with the current administration or conversely help clarify the choice for those anxious for change.” But the choice for those voters anxious for change remains complex since there are four other Democrats, who are mainly running by championing reform. They are Evandro Carvalho (a former prosecutor and current state representative), Linda Champion (a former prosecutor who now works at the Division of Industrial Accidents), Shannon McAuliffe (a defense attorney and the former director of the nonprofit Roca), and Rachael Rollins (a former prosecutor and the former general counsel for the Massachusetts Department of Transportation).

Michael Jonas reports in Commonwealth Magazine that “the fact that candidates with similar profiles… could split the vote and hand the election to a candidate who wins far less than majority support” has become an “open topic of conversation—and consternation.” Carvalho, McAuliffe, and Rollins each have their share of prominent endorsements. McAuliffe is backed by Suffolk County Sheriff Steven Tompkins; Rollins was endorsed by the Justice for Massachusetts Coalition, by activist Shaun King’s Real Justice PAC, and by the Boston Globe.

Anyone looking to learn more about this race should peruse the detailed explanations that the candidates provided to the ACLU and to WBUR. Carvalho, McAuliffe, and Rollins go the furthest in outlining their ambition to fight what McAuliffe calls the legal system’s “systemic racism and injustice.”All three advocate repealing mandatory minimum sentences for all charges except murder, raising the age at which young people are treated as adults, and ending the cash bail system; all three also propose new ideas to get the district attorney’s office to better stand up to ICE. In addition, all candidates other than Henning say that they would end civil forfeiture and decline to prosecute simple drug possession cases; on her website, Rollins features a list of other charges—such as trespassing and disorderly conduct—over which she would adopt a default policy of not prosecuting.


Missouri: Oregon DAs denounce speech by St. Louis County prosecutor

On Aug. 7, St. Louis County’s prosecuting attorney Bob McCulloch lost his re-election bid to Wesley Bell. Just one week later, on Aug. 16, McCulloch traveled to a conference organized by the Oregon District Attorney Association and delivered remarks that Multnomah County District Attorney Rod Underhill described as “unprofessional and offensive.” Willamette Week’s Katie Shepherd reports on McCulloch’s speech, as described by Deschutes County District Attorney John Hummel: “Hummel says McCulloch mocked the American Civil Liberties Union for the role it played in criticizing the local officials who investigated the fatal police shooting that killed Michael Brown. … At one point, Hummel says McCulloch showed a photo of four or five young black people standing together and said: ‘This is what we’re dealing with.’” Hummel adds: “The implication was that these kids were thugs.”


Thanks for reading. We’ll see you next week!