How be­ing ‘tough on crime’ be­came a po­lit­i­cal li­a­bil­ity

The Saline Courier - - NEWS - As­so­ci­ated Press

Ka­mala Har­ris re­cently dropped out of the pres­i­den­tial race af­ter months of at­tacks from the left for her “toughon-crime” record as San Fran­cisco’s district at­tor­ney and as Cal­i­for­nia’s at­tor­ney gen­eral.

A few years ago, the idea that be­ing tough on crime would be a li­a­bil­ity – not an as­set – was un­think­able for both Democrats and Re­pub­li­cans.

Bill Clin­ton, dur­ing the 1992 pres­i­den­tial race, in­ter­rupted his cam­paign so he could re­turn to Arkansas to wit­ness the ex­e­cu­tion of a men­tally dis­abled man. Dur­ing Har­ris’ 2014 re­elec­tion cam­paign for at­tor­ney gen­eral, she ac­tively sought – and won – the en­dorse­ments of more than 50 law en­force­ment groups en route to a land­slide vic­tory.

But some­thing has changed in re­cent years. Har­ris’ fail­ure to gain trac­tion as a pres­i­den­tial can­di­date has co­in­cided with a grow­ing num­ber of “pro­gres­sive prose­cu­tors.”

In the past, I would have scoffed at the no­tion of a pro­gres­sive prose­cu­tor. It would have seemed like a ridicu­lous oxy­moron.

But in one of the most stun­ning shifts in Amer­i­can pol­i­tics in re­cent mem­ory, a wave of elected prose­cu­tors have bucked a decades­long toughon-crime ap­proach adopted by both ma­jor par­ties. These prose­cu­tors are re­fus­ing to send low-level, non-vi­o­lent of­fend­ers to prison, di­vert­ing de­fen­dants into treat­ment pro­grams, work­ing to erad­i­cate the death penalty and re­vers­ing wrong­ful con­vic­tions.

The unchecked power of prose­cu­tors

In 1968, when I was 8 years old, my fa­ther was sen­tenced to 22 to 55 years in the Ohio State Pen­i­ten­tiary for the pos­ses­sion and sale of mar­i­juana. Dur­ing the trial, the district at­tor­ney had re­peat­edly as­sured the ju­rors that he hadn’t promised the state’s prin­ci­pal wit­ness – then serv­ing a long sen­tence – le­niency in re­turn for tes­ti­fy­ing against my fa­ther.

In truth, they had struck that very bar­gain. Af­ter study­ing the war­den’s own law books, my fa­ther ap­pealed the con­vic­tion, rep­re­sent­ing him­self. He was ul­ti­mately vin­di­cated by the 6th U.S. Cir­cuit Court of Ap­peals af­ter prov­ing that the district at­tor­ney had de­lib­er­ately lied to the jury.

That was in 1974. I went on to be­come a lawyer and law pro­fes­sor. Dur­ing the years I spent teach­ing and study­ing the re­la­tion­ship be­tween race and the law, the prison pop­u­la­tion ex­ploded, and my dis­trust to­ward gov­ern­ment prose­cu­tors only deep­ened. Too of­ten, it seemed like they were bring­ing ex­ces­sively puni­tive charges in or­der to force de­fen­dants into plea deals. Too of­ten, their ap­proach seemed to re­flect a long­ing for ret­ri­bu­tion and re­venge rather than re­ha­bil­i­ta­tion.

In 2017, law pro­fes­sor John Pfaff was able to show that mass in­car­cer­a­tion was due, first and fore­most, to the nearly unchecked power of district at­tor­neys.

With re­ported crimes and ar­rests steadily de­clin­ing in the 1990s and 2000s, you might have ex­pected in­car­cer­a­tion rates to also fall. In­stead, they soared. Pfaff traces this per­plex­ing trend to one key statis­tic: Be­tween 1994 and 2008, the prob­a­bil­ity that a district at­tor­ney would file a felony charge against some­one who’s been ar­rested roughly dou­bled, from about 1 in 3 to nearly 2 in 3.

More than stiff drug laws, puni­tive judges, overzeal­ous cops or pri­vate pris­ons, prose­cu­tors had been the main driv­ers of a prison pop­u­la­tion that had quadru­pled since the mid-1980s.

Mean­while, black

Amer­i­cans con­tin­ued to be dis­pro­por­tion­ately in­car­cer­ated. In 2017, there were 1,549 black pris­on­ers for every 100,000 black adults – nearly six times the in­car­cer­a­tion rate for whites and nearly dou­ble the rate for His­pan­ics.

This pros­e­cu­to­rial ap­proach wasn’t pun­ished at the bal­lot box; in­stead, rack­ing up con­vic­tions and plea deals seemed to bol­ster the po­lit­i­cal ca­reers of district at­tor­neys.

The new sher­iffs in town No longer.

Since 2013, roughly 30 re­form-minded prose­cu­tors have been elected. A few now pre­side over pros­e­cu­to­rial staffs in some of the na­tion’s big­gest cities, like Philadel­phia’s Larry Kras­ner and Bos­ton’s Rachael Rollins. But they also in­clude chief prose­cu­tors of smaller mu­nic­i­pal­i­ties, like Satana Deberry, who was elected district at­tor­ney of Durham County, North Carolina, in 2018, and Parisa De­hghanitaft­i, the com­mon­wealth’s at­tor­ney of Ar­ling­ton County, Vir­ginia, who won on a plat­form of end­ing mass in­car­cer­a­tion in 2019.

These prose­cu­tors are rein­vent­ing the role of the mod­ern district at­tor­ney. Kras­ner, for ex­am­ple, cam­paigned on elim­i­nat­ing cash bail, rein­ing in po­lice mis­con­duct and up­end­ing a sys­tem of mass in­car­cer­a­tion that dis­pro­por­tion­ately im­pris­ons peo­ple of color. He won with nearly 75% of the vote in the gen­eral elec­tion.

In 2018, be­fore a packed lec­ture hall, Kras­ner told my law stu­dents that end­ing racial­ized mass in­car­cer­a­tion is “the most im­por­tant civil rights is­sue of our time.” He pointed out that the key dif­fer­ence be­tween a tra­di­tional prose­cu­tor and pro­gres­sive one is that the lat­ter is a “prose­cu­tor with com­pas­sion” and “a pub­lic de­fender with power.”

This grow­ing crop of “prose­cu­tors with com­pas­sion” and “pub­lic de­fend­ers with power” has up­ended my own bi­nary way of think­ing about the role of the district at­tor­ney.

I’ve re­al­ized that a district at­tor­ney can adopt a fun­da­men­tally dif­fer­ent moral com­pass and con­cep­tion of jus­tice.

While tra­di­tional “law and or­der” prose­cu­tors pos­sess a moral, le­gal and po­lit­i­cal com­pass that sharply dis­tin­guishes be­tween vic­tims and per­pe­tra­tors, I’d ar­gue that truly pro­gres­sive prose­cu­tors rec­og­nize that “hurt peo­ple hurt peo­ple” and refuse to sub­or­di­nate the val­ues of restoratio­n, re­ha­bil­i­ta­tion and re­demp­tion to those of ret­ri­bu­tion, re­tal­i­a­tion and re­venge.

These two sets of val­ues can col­lide. Many en­trenched judges, prose­cu­tors, po­lice chiefs, po­lice unions and leg­is­la­tors have loudly op­posed – or have ac­tively re­sisted – this shift to restoratio­n and re­demp­tion.

Pro­gres­sive prose­cu­tors, ac­cord­ing to U.S. At­tor­ney Gen­eral Wil­liam Barr, are “un­der­cut­ting the po­lice, let­ting crim­i­nals off the hook, and re­fus­ing to en­force the law.”

In a De­cem­ber rally, Pres­i­dent Trump sin­gled out Kras­ner, call­ing him “the worst district at­tor­ney,” one who “lets killers out al­most im­me­di­ately.”

The ex­pe­ri­ence of Aramis Ayala, the state at­tor­ney for the 9th Ju­di­cial Cir­cuit Court of Florida, is a clas­sic ex­am­ple of the ob­sta­cles these new prose­cu­tors can face. Af­ter be­ing elected in 2016, she an­nounced that she would no longer seek the death penalty for any de­fen­dants tried by her of­fice. Florida Gov. Rick Scott re­sponded by re­as­sign­ing 24 ag­gra­vated mur­der cases to another state at­tor­ney who was amenable to the death penalty.

Ayala sued to have the cases re­turned to her ju­ris­dic­tion. She lost.

What changed? None­the­less, pro­gres­sive prose­cu­tors would have never at­tained power in the first place if their views didn’t res­onate with vot­ers.

Michelle Alexan­der’s 2010 book, “The New Jim Crow,” de­serves some credit for chang­ing the way ac­tivists thought about crime and pun­ish­ment. Alexan­der cast mass in­car­cer­a­tion as a civil rights cri­sis by show­ing that peo­ple didn’t sim­ply end up in jail be­cause they were bad peo­ple who made poor choices. Nor did prison pop­u­la­tions ex­plode sim­ply be­cause there were more crimes be­ing com­mit­ted. In­stead, mass in­car­cer­a­tion was closely in­ter­twined with race, poverty and gov­ern­ment pol­icy.

Among civil rights ac­tivists, is­sues like af­fir­ma­tive ac­tion in higher ed­u­ca­tion had been con­sum­ing a lot of time, en­ergy and re­sources. Alexan­der’s book helped re­di­rect at­ten­tion to racial­ized mass in­car­cer­a­tion as a main bat­tle­front in U.S. race re­la­tions.

Since its for­ma­tion in 2013, the Black Lives Mat­ter move­ment has made crim­i­nal jus­tice re­form a cen­ter­piece of their ac­tivism. In Los An­ge­les, for ex­am­ple, the lo­cal chap­ter has led weekly demon­stra­tions for over two years in front of the Hall of Jus­tice. They’re protest­ing Los An­ge­les County District At­tor­ney Jackie

Lacey for fail­ing to ad­e­quately ad­dress po­lice mis­con­duct.

FAYET­TEVILLE Ini­tially sur­prised, Isa­iah Joe has be­come ac­cus­tomed to play­ing far more than he played be­fore.

And Arkansas Ra­zor­backs sopho­more guard Joe has played a lot of ball. Joe didn’t help Fort Smith North­side win con­sec­u­tive state cham­pi­onships sit­ting on the bench.

And he av­er­aged 30 min­utes a game start­ing every game for for­mer Arkansas Coach Mike An­der­son’s 18-16 Ra­zor­backs last sea­son.

But so far start­ing every game for coach

Eric Mus­sel­man’s 9-1 Ra­zor­backs, Joe av­er­ages 37 min­utes per game go­ing into Satur­day night’s game against the Val­paraiso Cru­saders at Sim­mons

Bank Arena in North Lit­tle Rock.

Is he wear­ing down al­ready?

“Oh, I’m feel­ing good,” Joe said af­ter the Ra­zor­backs prac­ticed Thurs­day. “It’s just mat­ter of hav­ing your body in the right con­di­tion. You get a lit­tle bit tired but you’ve got to be so well con­di­tioned and get­ting enough rest that in games when you are play­ing that many min­utes, you are able to pro­duce the whole time.”

Given the last three games he’s scored 16, 18 and 20 points, it seems Joe gets stronger the more he plays.

“At the be­gin­ning of the year it felt a lot dif­fer­ent be­cause I mean I wasn’t used to play­ing that many min­utes,” Joe said. “But I’m start­ing to warm up to it. Start­ing to get used to it and learn­ing to play my game through the whole course of those 37 min­utes. It’s just get­ting used to play­ing that many min­utes. Ma­son’s (Jones) play­ing that may min­utes, too. We just have to make sure our bod­ies are con­di­tioned

for it.”

Jones scored a ca­reer­high 41 aug­mented by

Joe’s 20 in Arkansas’ last game, last Satur­day’s

98-79 trounc­ing of Tulsa at Wal­ton Arena.

“I think great,” Mus­sel­man said how 6-5 guards Joe and Jones have ad­justed play­ing more be­cause of a short ros­ter both in num­bers and height.

Though both would be deemed shoot­ing guards, Jones aligns at power for­ward and Joe at small for­ward with se­nior Adrio Bai­ley only 6-6 but the tallest starter lit­er­ally look­ing

up to op­pos­ing cen­ters.

Par­tic­u­larly when the Hogs re­sume play­ing two games a week with the Jan­uary start of the SEC sched­ule, Mus­sel­man ad­justs prac­tices to leave more en­ergy for his play­ers when it counts.

“In prac­tice we don’t go live a lot,” Mus­sel­man said. “The rea­son we don’t go live a lot is to try to save their bod­ies and keep their bod­ies fresh and we do a lot of men­tal reps.”

In ad­di­tion to log­ging more min­utes, 3-point shooter Joe has be­come ac­cus­tomed to be­ing chased on the perime­ter

rather than de­fenses sag­ging in­side as they did on since turned NBA cen­ter Daniel Gaf­ford last sea­son.

“Daniel was such a fo­cal point of ei­ther dou­bling down or keep­ing the lane com­pact or sag­ging the lane,” Mus­sel­man said. “I think that gives you a few more open looks than maybe now.”

How­ever, be­cause the ac­tion doesn’t col­lapse on Gaf­ford, there’s “a lot more ball move­ment,” than last sea­son, Joe said.

“We have a lot more cuts to the bas­ket,” Joe said. “Dan oc­cu­pied most of the paint most of

the time. And that led us to drop­ping down to him. But now we have a lot more off the ball screens, a lot more move­ment and a lot more cuts and con­stant move­ment.”

Cer­tainly Jones and Joe were on the move against Tulsa.

“Our sys­tem we have now is well orches­trated and we are able to get shots in the flow of the of­fense,” Joe said. “And be­ing able to do that is go­ing to al­low us to have mul­ti­ple good nights.”

CRAVEN WHIT­LOW/SPE­CIAL to The Saline Courier

Ra­zor­back sopho­more guard Isa­iah Joe, 1, drives the the base­line to slam for two against Austin Peay in early De­cem­ber at Bud Wal­ton Arena in Fayet­teville.

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