A New Class Of Prosecutors: Reformers Win Races Nationwide

By Cara Bayles | November 8, 2020, 8:02 PM EST

Protests took place on Nov. 4 in Los Angeles against incumbent District Attorney Jackie Lacey after a close election where she lost her seat to challenger George Gascón, who was billed as the more progressive candidate. (Jason Armond / Los Angeles Times via Getty Images)


Up and down the ballot this election season there have been several hotly contested races, but among key prosecutor face-offs one decisive winner was criminal justice reform, a trend that experts expect will continue in future elections.


Progressive newcomers were elected to top prosecutor posts in Los Angeles; Austin, Texas; Orlando, Florida; Detroit; Aurora, Colorado; and Columbus, Ohio; as well as what were considered local presidential battlegrounds, like Michigan's Oakland County, a suburb of Detroit.

Those wins for reformer prosecutor candidates came in a year when protests over police violence toward Black men put criminal justice at the forefront of political discourse, and a contentious presidential contest included rhetoric about "law and order."

That catchphrase, considered a dog whistle targeting white voters, has worked in the past. It came into the public vernacular during the civil unrest of the 1960s thanks to two prominent Californians: then-Gov. Ronald Reagan and then-presidential candidate Richard Nixon.

But many Californians rejected that credo last week, according to Max Szabo, spokesman for the campaign of George Gascón, who won the district attorney's race in Los Angeles County by billing himself as an anti-death penalty, pro-reform alternative to incumbent Jackie Lacey.

"This is really going to set the stage for what we must do as a criminal justice system," Szabo said. "In the state that invented 'tough on crime,' we're seeing incredibly high rates of recidivism and high rates of homelessness among the same population. We would be foolish to think there is no link between the two."


The New Class of DAs

José

Garza

District Attorney

for Travis County,
Texas (Austin)

Brian

Mason

District Attorney

for Colorado's 17th

Judicial District (Aurora)

Karen

McDonald

Oakland County

Prosecuting Attorney (Michigan)

Monique

Worrell

State Attorney for Florida's Ninth Judicial District (Orlando)

Democratic Party


Beat Tim McCormack, a Republican, by a 12% margin


PRIOR GIG:

Chief trial deputy in the DA's office


KEY FACT:

Current DA Dave Young, drew criticism for opting not to file charges against the officers involved in the death of Elijah McClain. Young did not seek reelection because he'd reached his term limit.

Democratic Party


Beat Lin Goetz, a Republican, by a 13.9% margin


PRIOR GIG:

Oakland County Circuit Court judge


KEY FACT:

McDonald unseated incumbent prosecutor Jessica Cooper, who'd served since 2008, during the August Democratic primary.

Democratic Party


Defeated Martin Harry, a Republican, by a 39.6% margin


PRIOR GIG:

Executive director of the Workers Defense Project


KEY FACT:

Garza beat incumbent DA Margaret Moore in the July 2020 Democratic runoff. He's a member of the Democratic Socialists of America.

Democratic Party


Beat Jose Torroella, an independent, by a 33.2% margin


PRIOR GIG:

Defense attorney, law professor, assistant state attorney, chief legal officer for REFORM Alliance


KEY FACT:

In liberal-leaning Orlando, her real contest was the Democratic primary. She beat out three other candidates after incumbent Aramis Ayala announced she wouldn't run for reelection.

George

Gascón

Los Angeles County

District Attorney

Steve

Alm

Honolulu

Prosecuting Attorney

Gary

Tyack

Franklin County

Prosecutor

(Columbus, Ohio)

J.D.

Tomlinson

Lorain County

Prosecutor

(outside Cleveland)

Independent


Beat Megan Kau, an independent, by an 11% margin


PRIOR GIG:

First Circuit Court judge


KEY FACT:

While he was a judge, Alm founded a probation program called Hawaii's Opportunity Probation with Enforcement. As U.S. attorney, Alm helped start the Weed and Seed program that helped reduce crime in the Chinatown and Kalihi-Palama areas.

Democratic Party


Beat Jackie Lacey, an incumbent Democrat, by a 7.4% margin


PRIOR GIG:

San Francisco's district attorney


KEY FACT:

Gascón is new to this office, but he is one of the original progressive prosecutors, and had to defend his tenure in San Francisco. 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.

Democratic Party


Beat Ron O'Brien, a Republican incumbent, by a 6% margin


PRIOR GIG:

Former judge for the Ohio Tenth District Court of Appeals


KEY FACT:

O'Brien had been in office for 24 years, but Tyack is hardly a young upstart. At 74, he had to retire from his judicial position because Ohio state law bars judges from starting a new term after the age of 70.

Democratic Party


Beat Robert Gargasz, a Republican, by a 6% margin


PRIOR GIG:

Defense attorney


KEY FACT:

Tomlinson defeated incumbent Dennis Will in the Democratic primary in April. Will had been in office for 16 years.

Old School Holds Seats

Joseph

Deters

Hamilton County

Prosecutor (Cincinnati)

Allister

Adel

Maricopa County

Attorney (Arizona)

Republican Party


Beat Fanon Rucker, a Democratic challenger, by a 5.4% margin.


PRIOR GIG:

He was Ohio's state treasurer, and he's been the head prosecutor for 15 years.


KEY FACT:

Rucker, who served as a municipal court judge for 12 years, ran on a platform of "bold systemic change."

Republican Party


Leading Democratic progressive challenger Julie Gunnigle by 1.7% as of Sunday evening.


PRIOR GIG:

Assistant district attorney


KEY FACT:

Adel had been appointed a year ago to replace then-Maricopa County Attorney Bill Montgomery, who resigned to become a state Supreme Court justice. This was her first election.


Criminal justice reform came to the fore in May, when the killing of George Floyd by Minneapolis police officers was videotaped and went viral, sparking nationwide protests and conversations about racism in policing and the justice system. Those conversations were echoed in campaign talking points at the top and bottom of the ballot.

As a result, some presidential victories on the local level seemed to correlate with prosecutor races down the ballot.

In Florida's Orange and Osceola counties, President-elect Joe Biden won 61% and 56% of the vote, respectively. That's also where Monique Worrell — a progressive candidate who vowed to end jail time for minor drug offenses and to prosecute police officers not only for murder, but assault — raked in about 67% of the vote, becoming the state attorney for Florida's Ninth Judicial District. In Travis County, Texas, home to the liberal city of Austin, Biden won 71% of the vote, and José Garza, who promised to address "the gross racial disparities in our criminal justice system" won nearly 70%.

In Michigan's Oakland County, considered a swing county in a swing state, Karen McDonald won 57% of the vote, running on a platform of eliminating cash bail and avoiding jail time for nonviolent offenders. Biden won 56% of the vote in that county.

Those correlations between presidential and district attorney wins on the county level likely started locally and "trickled up the ballot," according to University of Southern California government professor Dan Schnur, a former Republican political strategist who is now an independent.

"As is the case on so many other issues, you're seeing a huge cultural divide opening up in the country on issues relating to law enforcement and criminal justice," he said.

The presidential ticket offered a stark study in contrasts in that regard. President Donald Trump billed himself as "the law-and-order" candidate in 2016, and reprised that role in 2020, calling protesters in Minneapolis "thugs," and tweeting, "when the looting starts, the shooting starts."

His administration's attorney general, Bill Barr, has condemned the new wave of reform-minded prosecutors who have swept urban elections in recent years, criticizing them for "undercutting the police, letting criminals off the hook, and refusing to enforce the law."

But Trump has also instituted some criminal justice reforms during his tenure. Most notably, he signed the First Step Act, which shortened mandatory minimum sentences for low-level drug crimes and eased the "three strikes" rule, dampening the penalty after three convictions from a life sentence to 25 years. He also signed an executive order creating a national database of police officers accused of misconduct.

And while most of the progressive prosecutors have been Democrats, the Democratic candidate for president this year hardly had a sterling progressive record on criminal justice. As a senator, Biden sponsored the Violent Crime Control and Law Enforcement Act of 1994, which expanded the death penalty, added a slew of new criminal statutes, and is considered part of the impetus for the mass incarceration that began in the '90s.

Biden said this year that the legislation was a mistake. His presidential platform included decriminalizing marijuana, eliminating mandatory minimums and requiring robust federal data collection from local law enforcement.

"We have had a sea change in this country from the period in the 1990s when the public attitude was to make crime control models more and more punitive and to make sentences longer and longer," George Washington University law professor Paul Schiff Berman said. "Instead, we're now seeing an approach to criminal justice being embraced by both the right and the left that is more geared toward low-level crimes, rather than prison sentences."

That bipartisan support for criminal justice reform may explain why the federal and local election maps don't always line up. The outliers seem to be tighter races in what were considered presidential swing districts of battleground states.

In Arizona's Maricopa County, where Trump beat Hillary Clinton in 2016 with a 3% lead, Biden came out ahead by a similar margin. However, in the race for county attorney there, Republican incumbent Allister Adel was leading Democratic progressive challenger Julie Gunnigle by 1.7% as of Sunday evening.

Biden won with a 15.6% lead in the traditionally Republican stronghold of Hamilton County, Ohio, home to Cincinnati. But Republican incumbent prosecutor Joe Deters was reelected with a 5.4% lead there, beating a Democratic challenger Fanon Rucker, a former municipal court judge who ran on a platform of "bold systemic change." And though in Ohio's Lorain County, outside of Cleveland, Trump won 50.5% of the vote, a 2.6% margin, progressive newcomer J.D. Tomlinson beat his Republican opponent for county prosecutor with a six-point lead.

These mismatches may reflect local demographic and political quirks, but in counties like Lorain, where Biden lost and progressive prosecutors won, they may reflect a wider appeal of criminal justice reform, according to Szabo.

"I think the criminal justice system is one of the rare issues in our modern discourse that has bipartisan appeal," he said. "Progressives look at criminal justice reform to address systemic racism. Many conservatives look at the criminal justice system and see a bloated prison industry that is sucking away a huge amount of taxpayer resources."

There is still a partisan divide on criminal justice reform, however, and the protests over George Floyd's killing provide a weathervane on those attitudes. An Ipsos poll in September found 75% of Democrats supported the protests, compared to 6% of Republicans.

Szabo said that while both sides could probably agree on policy issues, like the pitfalls of the war on drugs, for example, the shorthand for their beliefs that can be divisive.

"What I don't think has bipartisan support are the messages that tend to appeal to Democrats and Republicans, which are a proxy for criminal justice reform," he said. "You've got 'law and order' being a rallying cry from the right, you've got 'defund the police' being a rallying cry from the left."

On the whole, opinions are shifting. Back in 2015, a poll conducted by the Associated Press found that 67% of Americans supported criminal justice reform. A new poll this summer found that 95% now support reform, with 29% supporting "a complete overhaul," and 40% supporting "major changes."

That enthusiasm for change is playing out across the country, said Cristine Soto DeBerry, founder of the Prosecutors Alliance, a nonprofit supporting prosecutor reformers in San Francisco.

She downplayed a partisan divide, noting that her organization counts San Joaquin County District Attorney Tori Verber Salazar, a Republican, among its members. In the future, she said, she expects to see reform spread if candidates want to stay competitive.

"Candidates regardless of party designation are going to start thinking differently about their approach to criminal justice. And if they don't, they're going to have a hard time getting elected," DeBerry said. "I expect that this is going to continue to grow, that we'll see ebbs and flows, but I don't think we are going to retreat from the need to reform our system."

Schnur wasn't so sure that reform was permanent. He said it's likely we'll see a leftward shift in many prosecutor races across the country — until the next crime wave hits.

"The safer people feel, the more likely they are to move away from a strong 'law and order' approach," he said. "But once the crime rate goes up or there's a particularly visible, violent crime, the momentum shifts in the other direction."

With the progressive swing being so significant — the concept of a 'progressive prosecutor' is a novel one — the pendulum swing to more conservative measures is likely to be just as dramatic, he said.

But millennials and Gen Z voters are "the most progressive electorate in this country since the Great Depression," Schnur said, adding that "it's entirely possible that their political leanings keep the might countermovement from being as strong as was the case in the past."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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