4 DA Races Pitting 'Law And Order' Against Justice Reform

By Cara Bayles
November 2, 2020

Though "law and order" has repeatedly been invoked during the presidential election, the vast majority of criminal justice decisions are made by local lawyers whose names appear much further down the ballot. And this year, a handful of local prosecutor races are drawing national attention.

Elections in Los Angeles, Chicago, Phoenix and outside of Detroit are coming a few years after the U.S. saw a wave of so-called "progressive prosecutors," candidates who differentiated themselves from traditional law-and-order rhetoric by focusing on the decriminalization of low-level crimes and alternatives to prison.

Their success on the ballot reflected changing attitudes about mass incarceration, and came soon after the 2014 police shooting of Michael Brown in Ferguson, Missouri, according to Northern Illinois University law professor Maybell Romero. Brown's death sparked conversations about racial disparities in the criminal justice system, and made the Black Lives Matter movement a household name.

"What you started seeing at that point was a greater focus on which actors in the criminal adjudicative process help to allow these injustices perpetuate themselves," she said.

Now, some reformer prosecutors are facing reelection. This time, they are the incumbents.

"You try to get into office, you make promises and then four years later you have to explain why you haven't fully achieved those and why they're still a good thing to try. That's just a more complicated message," according to Ronald Wright, a law professor at Wake Forest University. "You never come into the prosecutor's job and propose profound change and say four years later, 'Well, I delivered.' Criminal justice just doesn't turn on a dime."

Record voter turnout is expected for the presidential election, which could affect down-ballot races. That comes as Republicans stir backlash against the types of social justice protests that helped garner support for criminal justice reform in the first place. All that means that especially in swing states like Michigan and Arizona, this election cycle could serve as a referendum on what local citizens want from their criminal justice system.

Here are four races that could reflect those shifting attitudes.

Upon first glance, the L.A. district attorney's race seems to echo past high-profile elections. An incumbent, Jackie Lacey, who has been painted as more of a traditional crime fighter, is being challenged by George Gascón, a reformer who seeks to curb mass incarceration.

Lacey, who is seeking her third term in office, has a record to defend. She continued to pursue the death penalty even after California Gov. Gavin Newsom issued a moritorium on capital punishment, and she resisted reforms that meant people who didn't kill anyone couldn't be charged with felony murder for their role in a death.

For years, the Black Lives Matter movement has criticized her for not bringing criminal charges against police officers who have killed people. That reputation was reinforced after her husband pulled a gun on BLM protestors who gathered at his front door and after it was reported that 75% of her campaign contributions this cycle came from law enforcement unions.

But Lacey, the first woman and first Black person to become L.A.'s chief prosecutor, has not cast herself as tough on crime this election cycle. She's instead focused on her creation of a mental health diversion program that finds alternatives to incarceration for nonviolent offenders suffering from mental illness. She's pointed to her support for a ban on private prisons and for reforms to California's cash bail system.

"Jackie Lacey is not a classic lock-'em-up prosecutor, but she's more in that direction than Gascón is," Wright said. "Like a lot of long-term prosecutors, her vision of the job has changed some over the years, and what people expected of her has changed over time. So things she did 10 years ago don't look so good now, and she'll emphasize the ways she's open to change."

Her challenger, Gascón, has won a slew of endorsements, including a late-in-the-race switch from L.A.'s mayor. He was an early member of the reformist prosecutor club, having worked as San Francisco's district attorney for eight years. There, he instituted a slew of reforms. He retroactively applied the state's legalization of marijuana to clear marijuana misdemeanor conviction records. He helped launch San Francisco's Young Adult Court, which seeks alternatives to incarceration for defendants aged 18 to 24.

But that also means Gascón has a record to defend. His office's reluctance to go after low-level offenders was blamed for a 49% increase in San Francisco's property crimes — mostly car break-ins. Though he created an independent bureau to investigate police misconduct, Bay Area progressives have also expressed disappointment in Gascón, saying he failed to prosecute police who killed civilians.

"That's what's interesting about tracking a relatively new movement as it starts to mature a bit, because now you're starting to get people who have records that they need to defend, decisions that they need to take account for," Romero said. "It will be interesting to see how folks are able to define what progressive means given their prior actions."

Cook County state's attorney Kim Foxx also has a record to defend.

It's been four years since the Democrat beat the previous incumbent, Anita Alvarez, with a campaign vowing to focus on reform and go after serious crimes rather than non-violent offences.

In some ways, she has delivered on her promises. In its first term, the Foxx administration's conviction integrity unit has exonerated more than 80 people the office had previously convicted — about four times as many exonerations as her predecessor, according to data from the National Registry of Exonerations. Foxx also dropped charges against about 30% of those accused of felonies, compared to the 19% declination rate of Alvarez's administration.

Foxx's Republican challenger, Pat O'Brien — a former assistant city attorney, assistant attorney general, and local judge — has focused much of his campaign on controversy over Foxx's handling of the case of "Empire" actor Jussie Smollett, who allegedly filed a false police report about a racist and homophobic attack. A court-appointed special prosecutor later found Foxx's office abused its discretion by dropping charges against Smollet.

But O'Brien has also sought to use Foxx's progressive bona fides against her, with his website saying she's "failed to protect" Chicago's neighborhoods. His campaign criticized her decision to decriminalize charges associated with racial justice protesters, who he blamed for "looting, rioting and violence," and claimed Foxx's decreased prosecution rate was to blame for a surge of murders over the summer.

Foxx is expected to win reelection in the Democratic stronghold of Chicago, according to Carissa Byrne Hessick, a law professor at the University of North Carolina. The incumbent's real challenge was in the primary.

Still, the type of rhetoric O'Brien is employing does raise questions about how "durable" the trend of progressive prosecutors will be, she said.

"If crime rates continue to go up, then the public might be less open to reform messages in campaigns," she said. "Because these are local elections, local conditions are likely to be a big factor."

Though Maricopa is one of the largest district attorney jurisdictions in the country, Hessick said, the election there has flown under the radar because the two candidates are relatively unknown.

Allister Adel is technically the incumbent, though this is her first election. She was appointed a year ago to replace then-Maricopa County Attorney Bill Montgomery, who resigned to become a state Supreme Court justice.

During his tenure, Montgomery was a hard-liner who frequently sought the death penalty, tried to prosecute medical marijuana patients, and was a political ally of Sheriff Joe Arpaio. Montgomery was also the subject of an ethics investigation into whether he covered up another prosecutor's sexual misconduct and a civil rights lawsuit over his office's drug diversion.

That leaves Adel in a tricky position. During a recent debate she stated, "I am not my predecessors" and touted reforms she's instituted. Yet she's tried to walk a rhetorical tightrope by remaining the more traditional option. Her campaign has cast her as "an ethical reformer with a track record of holding criminals accountable." The campaign has called Democratic challenger Julie Gunnigle, who is from Arizona but worked a stint as a prosecutor in Illinois, "a radical, Chicago-style politician."

Gunnigle has sought to link Adel to the office's checkered past. She called the County Attorney's Office's current drug diversion program "a Band-Aid on a bullet wound." She's billed herself as a reformer, championed ending cash bail in the county, and vowed not to prosecute marijuana possession.

The Phoenix metropolitan area is less politically lopsided than many other major cities. That means that unlike many prosecutor elections that are essentially decided in the primaries, either party could win in the general election.

Republicans, who make up 35% of registered voters in Maricopa County, have a narrow lead over registered Democrats, who comprise 32% of the voting rolls, and that leaves a sizable portion of voters without a party affiliation.

"The county of Maricopa is somewhat mixed in terms of its political make up," Hessick said. "It's certainly possible that because it's a general election, national elections could play a role in that race."

In Oakland County, which includes part of the greater Detroit metropolitan area, two newcomers are vying to be the area's top prosecutor.

Challenger Karen McDonald ousted longtime prosecutor Jessica Cooper in August's Democratic primary, and now she faces Republican Lin Goetz on Election Day. Both women have decades of experience, and both can point to stints as assistant prosecutors. But their rhetoric couldn't be more different.

McDonald's campaign site proclaims "it's time for criminal justice reform," and says she plans to implement this by creating a conviction integrity unit that would review old cases for possible exonerations, eliminate cash bail, and avoid jail time for nonviolent offenders.

Goetz, on the other hand, touts a "tough on crime" approach, vowing to "aggressively represent victims of crime and their families with respect and compassion." Her campaign promises include a program to educate schoolchildren "about how the law is meant to help them," and to create a public information campaign about fraud and identity theft.

Like in Maricopa County, the Oakland County race is unusual because it presents a real choice between clashing styles in the general election.

"You see that classic, old-line prosecutor against someone saying, 'We're thinking about public safety more broadly defined and we're working with community partners.' That's a classic choice of styles there in the Oakland County race," he said. "You don't see that so often because voters have sorted into their own places, and so it kind of determines what style is going to appeal to the voters."

--Editing by Rebecca Flanagan.
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