Next month, voters in Queens, N.Y., will select their first new district attorney in nearly 30 years. Congresswoman Alexandria Ocasio-Cortez, who has become a star on the Democratic left, has endorsed Tiffany Cabán. The 33-year-old Cabán has served as a public defender, and her platform includes decriminalizing prostitution, abolishing cash bail and ending prosecutions for possession of certain drugs.
That platform may sound unusual for someone running for district attorney, but it’s not so different from her opponents in the June 25 primary. All seven of the Democrats running (no Republican filed) say they will reduce the prison population, limit or end cash bail and stop prosecuting nonviolent offenses, such as marijuana possession and fare evasion.
“There was a debate ... where it was hard to distinguish the candidates,” says Steve Zeidman, who directs the criminal defense clinic at CUNY Law School. “Every progressive position was staked out by all the candidates, although some were more to the left.”
It’s a big shift in Queens, but it reflects a recent trend that’s brought a new generation of reform-minded district and state attorneys to power -- many with heavy financial support from organizations funded by liberal billionaire George Soros. From Boston to Denver and from Chicago to Houston, prosecutors are rejecting the tough-on-crime approach that was dominant in their field for decades. They have instead embraced criminal justice reforms and, in some cases, oppose the death penalty.
“The movement for reform district attorneys has proven to be broad and durable,” says David Sklansky, a law professor at Stanford University. “It’s a departure from the old politics of district attorney races, and it’s out of step with the thrust of the policies that are being pursued by the Department of Justice at the national level.”
For decades, the winning political strategy for prosecutors was to promise to put away as many criminals as possible. That message not only resonated with voters, it was barely challenged politically. From 1996 to 2006, 95 percent of incumbent prosecutors won reelection, according to Ronald Wright, a law professor at Wake Forest University. Eighty-five percent didn’t even draw a general election challenger.
Now, long-time prosecutors are being challenged and sometimes defeated by candidates promising to decriminalize low-level offenses instead of fill up jails and prisons. But in another break from the past, many recent candidates for district attorney have no background in prosecution. Cabán and Philadelphia District Attorney Larry Krasner, for instance, were previously public defenders.
The fact that “mass incarceration” has been accepted as a term and acknowledged as a problem by conservatives as well as progressives has made the election of reform-minded prosecutors possible, Zeidman says.
“That paved the way for people running for office [to realize] it’s not political suicide to run as a reform candidate," he says.
Reformers Don’t Succeed Everywhere
Richard Brown served as district attorney in Queens for nearly 28 years. He had planned to step down this June, but he died on May 4, at age 86.
He was first elected in 1991, near the peak of the nationwide crime wave. In keeping with the “broken windows” approach favored in New York policing at the time, Brown routinely prosecuted nonviolent offenses, such as prostitution and graffiti, that were thought to encourage an atmosphere that led to more serious crimes.
His potential successors take a different approach. Cabán says she would not prosecute turnstile jumping, unlicensed driving or any marijuana-related offenses. She also would not bring charges against either prostitutes or their clients.
While some version of criminal justice reform is certain to be embraced in Queens, this vision hasn’t convinced voters everywhere.
In Allegheny County, Pa., which includes Pittsburgh, a former prosecutor and public defender named Turahn Jenkins posed the first serious primary challenge to District Attorney Stephen Zappala in 20 years. Jenkins accused Zappala of failing to hold police officers accountable for killings, said the county’s criminal justice system was contributing to mass incarceration and said he would divert more drug cases before they went to trial.
Last week, Zappala won reelection, taking 59 percent of the vote.
In San Diego County last year, Summer Stephan, a veteran prosecutor then serving as interim district attorney, easily turned back a challenge from Geneviéve Jones-Wright, the county’s public defender who said reducing incarceration would be her top priority.
Pushback Once in Office
Some reform-minded prosecutors have encountered opposition from state officials.
In Florida, Aramis Ayala, the state attorney in Orange and Osceola counties, announced she would not seek the death penalty in any cases. In response, then-GOP Gov. Rick Scott removed capital cases from her office.
On Tuesday, she said she won't seek a second term.
"Death penalty law in the state of Florida is in direct conflict with my view and my vision for the administration of justice," Ayala said in a video announcing her retirement.
In Suffolk, Mass., which includes Boston, Rachael Rollins was elected district attorney last year. In March, she issued a memo with a list of 15 charges that were no longer to be prosecuted, with rare exceptions.
“I don’t believe accountability has to equal incarceration,” she wrote, noting that 17 of the 25 most commonly prosecuted charges in the county are nonviolent.
But Republican Gov. Charlie Baker and his administration weren't convinced.
“Several policies announced in the memo would, if implemented as proposed, put at risk the commonwealth’s ongoing efforts to combat the ongoing crisis of the opioid epidemic and substantially restrict government’s ability to protect victims threatened with serious crimes,” Thomas Turco, the governor’s public safety director, wrote to Rollins.
A similar scenario is playing out in Texas.
Last month, Dallas County District Attorney John Creuzot announced he would stop prosecuting some first-time marijuana offenses, would raise the threshold for prosecuting theft to $750 and would not prosecute thieves who stole due to poverty or hunger.
Texas Gov. Greg Abbott and Attorney General Ken Paxton, both Republicans, blasted the plan in a joint letter.
“Reform is one thing. Actions that abandon the rule of law and that could promote lawlessness are altogether different,” they wrote. Texas law “grants no power to criminal district attorneys to categorically rewrite the law.”
Testing Out New Ideas
More than three dozen states have raised their felony theft thresholds since 2000. They have not seen an increase in property crimes or larceny rates as a result, according to a 2017 study by the Pew Charitable Trusts.
Rollins, the Suffolk County prosecutor, announced she will decline to prosecute shoplifting or theft of goods worth less than $250. In St. Louis County, prosecutor Wesley Bell -- who defeated long-serving Bob McCulloch last year -- now issues a court summons, rather than an arrest warrant, for theft of items worth under $750.
“In the 100 days since I’ve been in office, we’ve reduced the jail population by 12 percent, which is the lowest since 2002,” Bell said at a news conference last month.
The fact that a prosecutor can proudly hail declines in prison populations and in prosecutions shows how much the political landscape has changed, at least in many major metropolitan areas. After years of district attorneys winning office mostly unopposed by promising to remain tough on crime, many newly elected prosecutors argue that incarceration represents a policy failure and that prison beds should be reserved for the most dangerous offenders.
That’s a message that can now win elections, but whether it’s a policy people will embrace in practice remains an open question. Ayala’s decision to step down in Florida is an indication that reform-minded prosecutors could be in trouble once they have their own records to run on.
“When a prosecutor announces a policy that seems unprecedented, there’s going to be some pushback,” says Sklansky, the Stanford professor. “We don’t have clear road maps for what it means to be a responsible prosecutor who cares about reducing mass incarceration.”
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