A growing number of prosecutors are reforming their local criminal legal systems, fueled by activists’ calls for change and rising electoral mobilization around district attorney races. Many other prosecutors are fighting reform, whether locally or through statewide lobbying. Some even do both.
The Appeal: Political Report has launched a new interactive page to track how the reform movement is affecting the practices and policies of prosecutors nationwide. What reforms are they rolling out, and are they actually implementing them? Who is more ambitious in their proposals, and who is most resistant to targeting mass incarceration? After all, prosecutors enjoy tremendous discretion, and policies they set—like whether to seek bail, to treat minors as adults, or to prosecute marijuana cases—impact the scale of mass incarceration.
Explore these developments chronologically below, or geographically with this interactive map.
This page, edited by Daniel Nichanian, is not meant to be exhaustive. It tracks developments as they are covered in The Appeal, the Appeal: Political Report, and the Daily Appeal. Information is added regularly.
Politics of prosecutors
The Appeal: Political Report is also committed to drawing out and clarifying the politics of prosecutorial elections, and probing what reform means for candidates who run on a platform of curbing or ending mass incarceration. Read our coverage of the 2018 local elections and the 2019 local elections.
Chittenden County, Vermont
Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington), has instructed all staff and prosecutors who work in her office to visit the St. Albans prison. The Political Report talked to George about her initiative, and how it might could change practices in her office. “They spent an hour and a half there and were relieved to get out,” she said. “So let’s imagine how this might impact somebody who is there for six months or a year.” George said this perspective should inform sentence length, but also whether to seek incarceration at all. Read the interview.
In a speech at the Fraternal Order of Police conference on Monday, U.S. Attorney General William Barr delivered a wide-ranging attack against efforts for police oversight and against reform-minded prosecutors, whom he called “anti-law enforcement DAs.” Read the annotated and fact-checked version of the speech in The Appeal.
In addition, Fordham Law School professor John Pfaff writes in The Appeal that “Barr is out of step with the data and the desires of the people who have elected progressive prosecutors.”
Cook County, Illinois
A new report shows that reforms implemented by Kim Foxx are paying dividends for decarceration in Cook County. The number of people sentenced to prison or jail declined by 19 percent between 2017 and 2018. Violent crime also declined over that period. Since 2016, Foxx has de-emphasized incarceration and shifted to using lower-level charges for some offenses. She announced that she would prosecute retail theft as a felony if the value of the property is above $1,000, as opposed to $300 previously. This year, she set a presumption of no incarceration for drug possession charges.
Cuyahoga County, Ohio
A coalition of local organizations sent a letter to Cuyahoga County (Cleveland) Prosecutor Michael O’Malley demanding that he curb the use of cash bail. “Jailing people who cannot pay bail discriminates against the poor, and it exposes them to needless suffering and even death,” they write.
San Diego, California
The office of San Diego DA Summer Stephan is systematically resisting reforms adopted by California’s legislature. Let’s review:
1) A law adopted in 2018 enables judges to divert people with mental health issues away from incarceration. But the San Diego Union-Tribune reported last week that Stephan’s office has argued against nearly all diversion requests (95 percent), even though a tiny share of all defendants have made one (0.2 percent of all arraignments). This near-constant opposition to diversion contrasts with Los Angeles; prosecutors there argued against 33 percent of diversion requests over the period reviewed by the Union-Tribune.
2) Stephan is also among the California DAs challenging the constitutionality of another 2018 law, which restricted the felony murder doctrine, and did so retroactively. DA resistance is delaying the resentencing of hundreds.
3) Stephan is even fighting still-nonexistent reforms. The Union-Tribune reported that, as part of plea deal negotiations, Stephan’s office is asking some defendants to forfeit their right to seek a revised sentence based on hypothetical future reforms, even if those are intended to modify past sentences. Assistant DA David Greenberg, who is quoted in each of the articles linked here, defended this waiver in the name of “truth in sentencing.”
Democratic Governor David Ige vetoed bills reforming Hawaii’s criminal legal system. Among other proposals, he killed a measure to restrict civil asset forfeiture and another measure for terminally ill incarcerated people to be eligible for medical release. Mitch Roth, the Hawaii County prosecutor, and Keith Kaneshiro, the Honolulu County prosecutor, urged these vetoes; Roth said he “doesn’t know of a single case” in which asset forfeiture has been abused. “There’s longstanding deference to police and law enforcement in our state,” said Mandy Fernandes, policy director of the ACLU of Hawaii. However, Justin Kollar, the prosecutor of Kauai County, voiced support for reform. Read more in the Political Report.
Virginia’s high incarceration rate rests in part on the shoulders of the state’s commonwealth’s attorneys, who face reelection in 2019. Three issues loom large. One is discovery rules. Prosecutors face lax requirements as to what they must share with defense attorneys, a situation critics call “trial by ambush. Second is marijuana. Some, like Norfolk’s Greg Underwood, have announced a stop to pot prosecutions, but institutional obstacles remain strong. Third is voting rights. In 2016, 43 prosecutors backed a lawsuit against Governor Terry McAuliffe’s efforts to restore voting rights. 22 of them ran for reelection in 2019; two lost in the primaries, and three face an opponent in the general election. Read more in the Political Report.
Orange Co. & Osceola Co., Florida
Aramis Ayala, the state attorney of Orange County (Orlando), rolled out a major new diversion program to reduce convictions over drug possession. In cases involving misdemeanor possession of marijuana, charges will be dismissed if people complete a one-hour educational course. For possession of other drugs like heroin or fentanyl, people will have their cases dismissed after six months if they go without another arrest and serve four hours of community service. In 2018, 5,000 cases would have been eligible.
The Political Report reported in April on a Massachusetts bill that would raise the age of juvenile jurisdiction to 21 from 18. The idea now has prosecutorial support: Three of 11 DAs have endorsed it: Andrea Harrington, Rachael Rollins, and David Sullivan. “By pushing these young people, who research tells us are still developing, into the adult justice system, we are willfully ignoring decades of data and developmental science,” Rollins tweeted. Only Vermont has raised the age of juvenile jurisdiction above 18.
In legalizing hemp this year, Texas distinguished it from marijuana based on THC concentration: If a product has more than 0.3 percent THC, it is defined as marijuana and is illegal. But an unintended consequence is that marijuana cases now require knowing a product’s THC level, and many DAs say they lack the resources and capacity to make this determination. The DA’s statewide association echoed their warning.
At least five DAs (in Bexar, Harris, Fort Bend, Nueces, and Tarrant counties) have announced that they will no longer prosecute marijuana cases absent a THC concentration test. These DAs have also dismissed hundreds of marijuana cases since the law came into effect in June. Governor Greg Abbott and other GOP officials are contesting this.
They say pot prosecutions can proceed “with the tried-and-true use of circumstantial evidence.” But Dallas County DA John Creuzot replied his duty is “to ensure that people are not prosecuted for possessing substances that are legal.”
Most DAs in the state’s largest counties are staking a position like Creuzot’s. Exceptions are El Paso’s Jaime Esparza, a Democrat, and Montgomery County’s Brett Ligon Brett Ligon, a Republican. Asked how Ligon’s office would prove a substance is marijuana, a spokesperson told the Political Report that they have identified a private lab capable of conducting tests in Arlington, and that they would order a test only if a case goes to trial (which is rare) or if defendants request it in cases disposed of pretrial.
Philadelphia DA Larry Krasner has asked the Pennsylvania Supreme Court to declare that the death penalty violates the state’s Constitution, Elizabeth Weill-Greenberg reports in The Appeal.
Also, a new law enables the state attorney general to prosecute firearm violations in Philadelphia. The move, which dilutes Krasner’s authority, applies only to Philly and expires in two years, right when Krasner’s current term ends. The GOP sponsor implied to The Intercept that he was motivated by his view that Krasner, who has used probationary programs, was not “enforcing the law.” Democratic Governor Tom Wolf signed the bill into law. In response to the controversy, Attorney General Josh Shapiro tweeted that he did not plan “to use it to act unilaterally or go around DA Krasner.”
Miami-Dade County, Florida
Some of Florida’s Democratic prosecutors are developing plans to mitigate the state’s “poll tax” law, which Republicans adopted this spring to require that people pay off their court fines and fees before regaining the right to vote. Kira Lerner and Daniel Nichanian report in The Appeal that a coalition of Miami-Dade County officials is now saying that most people with felony convictions are likely to be able to vote, despite owing fines and fees. The group includes Miami-Dade County State Attorney Katherine Fernandez Rundle.
Her office is talking to prosecutors elsewhere in the state. The offices of the state attorneys in Broward, Hillsborough, and Palm Beach counties confirmed their interest in a process that would get as many people voting as possible.
Queens, New York
Prosecutorial practices were harsher in Queens than elsewhere in the city under Richard Brown, the DA between 1991 and 2019. “If there is room for reform anywhere in the boroughs of New York City, it’s in Queens more than anywhere else,” said Aaron Morrison, a reporter with The Appeal. Morrison has reported in The Appeal on the harsh practices that Brown’s office pursued toward people on probation and parole. He also reported on the lack of a conviction integrity unit. Such units resulted in roughly 60 exonerations nationwide last year. Queens is the only New York City borough without one. Queens is elected a new DA this year.
Cumberland County, Pennsylvania
A new DA in Cumberland County is treating the overdose crisis as a criminal matter rather than a community health issue, Josh Vaughn reports in The Appeal. DA Skip Ebert is choosing to aggressively charge people with homicide if they provide others drugs which they overdose. Ebert casts this strategy as essential to proper punishment and deterrence, but advocates argue that he is targeting friends and family members rather than kingpins and drug dealers, and they point out that his policies dissuade people from calling 911 during overdoses.
Orleans Parish, Louisiana
Leon Cannizzaro, the DA of Orleans Parish,, is the subject of an Intercept investigation on how his office is undermining defendants’ right to counsel, as well as of an Appeal investigation on the harmful effects of his office’s handling of jailhouse informants. Cannizzaro is known for harsh practices. Last month, he said he would pursue a more punitive approach toward minors, even as New Orleans’s youth jail faces overcrowding, Kira Lerner reports in The Appeal.
St. Louis County, Missouri
Wesley Bell, the prosecutor of St. Louis County, is creating a Conviction and Incident Review Unit to investigate police shootings and allegations of misconduct. In 2018, Bell ousted incumbent Bob McCulloch, whose refusal to appoint an independent prosecutor after Michael Brown’s shooting contributed to the 2014 Ferguson protests. The Intercept reports that the board’s mechanics are still uncertain. The board will also review claims of wrongful conviction.
The Philadelphia Bail Fund released a report showing Philadelphia prosecutors seek high bail amounts, and questioning the speed at which Larry Krasner’s office is reforming bail, Bryce Covert reports in The Appeal. “It indicates there’s room to move forward and do more,” Krasner’s office told Covert.
Chicago and San Francisco
Kim Foxx, the prosecutor of Cook County, Illinois (Chicago) and George Gascón, the prosecutor of San Francisco, California, have each launched new initiatives to improve their office’s transparency and and release years worth of prosecutorial data. Sarah Lustbader writes in the Daily Appeal that this is part of a new transparency wave.
The Supreme Court overturned a death row conviction because of the racially discriminatory jury selection practices of DA Doug Evans. The court stressed how unique the case was, but Sarah Lustbader explains that what makes this case so important is that it is anything but an outlier. (Evans is running unopposed this year.)
Los Angeles County, California
The Appeal investigated Los Angeles DA Jackie Lacey in June, first regarding her questionable record toward people with mental illness, then regarding her office’s discriminatory use of the death penalty. Lacey is up for re-election next year, and the New York Times reports that San Francisco DA George Gascón could move south to challenge her.
Orange Co. & Osceola Co., Florida
Aramis Ayala, the state attorney of Orange and Osceola counties, announced last week that she would not seek re-election in 2020. Ayala tied her decision to her struggle with statewide politicians over the death penalty. When she vowed to not seek the death penalty, Governor Rick Scott reassigned cases to other prosecutors and the state Supreme Court upheld Scott’s move.
As draconian restrictions on reproductive rights spread nationwide, some Georgia DAs like DeKalb County’s Sherry Boston say they will not use prosecute people using these new laws; others like Gwinnett County’s Danny Porter say they would specifically not prosecute women who seek an abortion.
Sarah Lustbader writes in the Daily Appeal that prosecutors have become an “unlikely line of defense against abortion bans.”
Natasha Irving, the DA of Knox, Lincoln, Sagadahoc, and Waldo counties, announced new policies to expand the use of restorative justice, a practice that involves addressing harm outside traditional legal settings by involving defendants and people affected by an alleged crime. (The Restorative Justice Project of the Midcoast operates in this area of Maine.) Beth Brogan reports in the Bangor Daily News that Irving campaigned on expanding restorative justice in the 2018 election. Irving also announced that she will expand the use of pre-conviction diversion programs for lower-level offenses.
Maricopa County, Arizona
Maricopa County prosecutor Bill Montgomery has faces accusations that he operates in secrecy and withholds information, Elizabeth Weill-Greenberg reports in The Appeal. The ACLU is now suing him for failing to comply with a public records request. Scandal-plagued Arizona prosecutor won’t release record, lawsuit alleges. In addition, bills to overhaul the state’s legal system derailed in the 2019 session, and state advocates have laid blame on Montgomery’s influence.
Durham County, North Carolina
Durham County District Attorney Satana Deberry, who was elected in November, is rolling out new policies to reduce pretrial incarceration. She is restricting arrests over a failure to appear in court and narrowing the use of cash bail, a practice that leaves poor people in jail because of an inability to afford a payment. Her office states that only “in rare circumstances” should making a financial payment be a condition for pretrial release. Read more in the Political Report.
Durham County, North Carolina
North Carolina revokes the driver’s licenses of people who fail to pay court fees and fines, with no regard for financial ability. Durham is taking action this year through its Second Chance Driving Project. DA Satana Deberry has cleared tens of thousands of traffic cases this year, and she has asked courts to clear thousands of fines and fees that are more than two years old. Parts of this initiative were launched under her predecessor, Roger Echols. It will result in thousands regaining their eligibility to have a license, though informing them of this is yet another challenge. Daniel Nichanian reports in the Political Report on broader efforts to counter driving license suspensions in North Carolina.
New York’s legislature reformed the state’s criminal legal system by adopting a slate of changes that reformers have long championed. The state required prosecutors to share information with the defense within 15 days, ended cash bail for many categories of offenses, provided for speedier trials, and acted for some convictions to not trigger deportation. But advocates who worked to get them passed say that the DAs who will be elected in November 2019 will still face major decisions on each of those issues. For instance, they can adopt stronger discovery rules within their office than what the law mandates. Read more in Daniel Nichanian’s analysis in the Political Report.
Dallas County, Texas
Dallas County DA John Creuzot announced a big package of reforms in an open letter. These include no longer prosecuting first-time arrests for marijuana possession and theft of “necessary items” whose value is under $750. He also said he will shorten probation and reduce incarceration for people who violate some of their probation terms. To cut pretrial detention, he instituted a presumptive policy of asking for people to be released without conditions when charged with misdemeanors and some low-level felonies. Creuzot’s announcement sparked opposition from Republican Governor Greg Abbott, police groups, and some members of the City Council. But some conservative reform proponents are defending Creuzot.
Utah County, Utah
Jessica Miller reports in the Salt Lake Tribune on reforms announced by David Leavitt, the new prosecutor of populous Utah County. Leavitt intends to create precharge diversion programs for lower-level offenses because he thinks existing approaches to diversion are too selective. “Leavitt calculated that it’s statistically more probable for an applicant to be admitted into Harvard University than it is for an arrested person to get into 4th District drug court,” Miller writes. He also intends to set up a conviction integrity unit within his office.
Macomb County, Michigan
County Prosecutor Eric Smith is under investigation by the state attorney general for how he allegedly spent asset forfeiture funds. He is accused of inappropriately using the funds to pay for parties and furniture, and the state police raided his office last week.
Portsmouth City, Virginia
Portsmouth Commonwealth’s Attorney Stephanie Morales outlined circumstances in which she would no longer prosecute marijuana possession, as Scott Daugherty reports in the Virginian-Pilot. She said that she will still file possession charges when those are accompanied by higher-level charges, as well as against minors.
Bronx, New York
New York City Mayor Bill de Blasio has proposed a pilot program of supervised injection sites in the Bronx, Manhattan, and Brooklyn. The Manhattan and Brooklyn DAs have already pledged their support, and the city needs their permission to launch the program. But Bronx DA Darcel Clark opposes safe injection sites. Raven Rakia reports in The Appeal on the significant implications of Clark’s position.
A new California law restricts felony murder, a doctrine under which someone can be prosecuted for a murder that they did not commit. But many California prosecutors, including Los Angeles DA Jackie Lacey are suing, claiming the law is unconstitutional. Jessica Pishko reports in The Appeal on the long history of prosecutors opposing criminal justice reforms in California.
Suffolk County, Massachusetts
Three months into her tenure as the DA of Boston (Suffolk County), Rachael Rollins issued a hefty memo that reforms her office’s prosecutorial practices based on a stated goal to “file fewer criminal charges, divert more people into services and treatment, send fewer people to jail and prison.” The Political Report dug into some of Rollins’s announcements; you can read our analysis here.
The memo’s highest profile announcements may be those over bail reform, and the details of how she will implement her much-publicized campaign commitment to adopt a default policy of declining to prosecute 15 offenses, such as drug possession or trespassing.
Attorney General Kathleen Jennings released a memo outlining new policies that state prosecutors should follow to “increase fairness and proportionality in the system” and “reverse” the “high rates of incarceration and recidivism.” The memo, which covers a wide range of areas, instructs prosecutors to increase the use of diversion (for instance when it comes to offenses that involve marijuana), curb the use of money bail, limit the duration of probation, and take into account possible effects of prosecutorial decisions like deportation. The memo pays special attention to charging decisions and plea negotiations, areas of great prosecutorial discretion. Read more in the Political Report.
Harris County, Texas
Harris County (Houston) DA Kim Ogg asked county officials to increase her office’s budget by $20 million so she could hire 102 new prosecutors. This sparked calls for Ogg to change her office’s practices by reducing the number and type of cases it prosecutes. In February, the five-member County Commissioners Court rejected Ogg’s request while also voting to significantly increase the budget of the public defender’s office. One criticism of Ogg’s proposal was that her office is filing too many charges to start with—and hiring more prosecutors would only balloon that number—and that she should instead look for ways to shrink the criminal justice system by altogether declining to prosecute certain cases. Read more in the Political Report.
Cook County, Illinois
State’s Attorney Kim Foxx announced a shift to treating drug possession as a public health matter, with a default of no incarceration. “Incarceration is not treatment, and the Cook County State’s Attorney’s office will no longer address the public health crisis of drug addiction in our criminal justice system,” she said in a Jan. 24 speech. “Diversion will be the presumption in drug possession cases.” Foxx also launched a program to “pursue the expungement of all misdemeanor marijuana convictions.” What this means according to the Chicago Citizen is that people will be able to apply for expungement with her office’s assistance without paying an expungement fee, instead of going through the existing process that requires a payment.
Baltimore, Maryland and St. Louis, Missouri
Marilyn Mosby, the Baltimore state’s attorney, announced on Jan. 29 that her office would no longer prosecute marijuana possession no matter the quantity. She also said that she would act to vacate thousands of old convictions. Her office laid out her rationale in a 14-page white paper. Also in January, St. Louis County’s new prosecutor, Wesley Bell, issued a policy of no longer prosecuting the possession of under 100 grams of marijuana; he will still prosecute larger quantities if he is also accusing a defendant of an intent to sell. Bell’s decision echoes that announced in June by Kim Gardner, the chief prosecutor of the city of St. Louis.
One outstanding question is the persistence of enforcement besides prosecution. In Missouri, municipal officials can still issue citations that remain on one’s record and result in fines; this has limited the impact of local steps toward decriminalization in both St. Louis and Baltimore in the past. Scott Hechinger, senior staff attorney at Brooklyn Defender Services, warned that, absent legalization, marijuana will remain a pretext for heavy-handed policing. Another matter for continued scrutiny how prosecutors implement their own stated policies.
Read more in the Political Report.
In 2018, Philadelphia DA Larry Krasner announced a new policy meant to limit the use of monetary payments as a condition for pretrial release. The policy was to not seek cash bail from people charged with some misdemeanors and nonviolent felonies. Aurelie Ouss and Megan Stevenson, professors at the University of Pennsylvania and George Mason University, released a study assessing the policy’s impact at the one-year mark. They found no ill effect on court attendance or recidivism. Read more in the Political Report.
Hennepin & Ramsey counties, Minnesota
The two county attorneys of Minnesota’s Twin Cities announced new policies on how their offices will handle the prosecution of marijuana-related offenses, Daniel Nichanian reports in the Political Report Both. Both offices will expand the use of diversion programs for felony-level offenses. But both told the Political Report that they would not emulate prosecutors elsewhere in the country who have said that they would simply decline to prosecute marijuana possession cases no matter the quantity. Read more in the Political Report.
Will anyone run for DA in Wisconsin in 2020? An obstacle to using elections to hold DAs accountable, let alone to transform the criminal justice system from the inside, is that elections for prosecutor rarely feature multiple candidates. Writing in the Political Report, Daniel Nichanian reviewed all elections held in Wisconsin since 2008 to show the extent of this phenomenon. Our findings are striking: A near-majority of counties haven’t held a single contested election in that period. Read more in the Appeal: Political Report.
Philadelphia DA Larry Krasner announced in November that he was leaving the Pennsylvania District Attorneys Association (PDAA), an organization that brings together the state’s prosecutors and assistant prosecutors and that lobbies in their name in the state capital. In the Political Report, Daniel Nichanian looks at what the group stands for. The PDAA has championed a series of measures to make the law more punitive or criminalize a new action. In the media, its statements often get reified as the perspective of law enforcement writ large, as the view that reflects the experience of striving for safety and caring for victims. But this does not capture the way the PDAA makes decisions. Read more in the Political Report.
Ferguson and St. Louis, Missouri
Wesley Bell ousted St. Louis County prosecutor Bob McCulloch in August, four years after the Ferguson protests. Defeating McCulloch, who had been in office since 1991, involved years of sustained organizing on the part of activists who participated in those protests. Daniel Nichanian talked to Reverend Dr. Cassandra Gould, executive director of Missouri Faith Voices, about what toppled the longtime prosecutor and about what’s next. “We don’t expect St. Louis County to be run the same way in two years that it was run over the past 27 years,” Gould said. “We believe that ongoing engagement and commitment with the prosecutor’s office is extremely important.” Read more in The Political Report.
Two candidates who unsuccessfully ran for DA on the need to reform Oklahoma’s criminal justice system talked to the Political Report about the difficulties of running for prosecutor on such a platform. “We struggled to get anybody to care about the DA race,” said Cory Williams, who ran in Payne and Logan Counties. “There isn’t a built-in pipeline fundraising for DA races,” he added, contrasting his experience in this election with his past legislative races. Both candidates also questioned incumbent prosecutors’ insistence that they are merely applying the law in light of the active role played by the Oklahoma District Attorneys Council. Read more in the Political Report.
Pierce County, Washington
Mary Robnett, the incoming prosecutor of Pierce County, Washington says the job ought to be nonpolitical. But her 2018 campaign also illustrated the limits of this common trope, Daniel Nichanian writes in the Political Report. It ignores the policy decisions that actors involved in the criminal justice system are constantly making, and it reinforces the expectations that the main axis on which to differentiate within prosecutors is whether they are competent. This framing also downplays the criminal justice system’s broader problems; confronting them requires going beyond targeting a set of exceptionally rogue practices. Read more in the Political Report.
Allegheny County, Pennsylvania
Joshua Vaughn identifies considerable disparities in youth justice in the office of Allegheny County (Pittsburgh) DA Stephen Zappala: Black teens in the county were 20 times more likely than their white peers to be arrested and charged as adults in 2016 and 2017. Read more in The Appeal.
Manhattan, New York
Manhattan DA Cyrus Vance has claimed that his office is not prosecuting people who use “gravity knives”during their job, but Melissa Gira Grant reports on contentions that Manhattan prosecutors are still doing so. Read more in The Appeal. New York has since lifted its ban on these knives.