Dehghani-Tafti, a former public defender who had worked on exoneration cases for the Mid-Atlantic Innocence Project, won 52 percent of the vote in defeating two-term incumbent Theo Stamos for the Democratic nomination for commonwealth attorney in the close-in suburban jurisdiction of Arlington County. Steve Descano, a former federal prosecutor, won 51 percent of the vote to oust three-term incumbent Ray Morrogh in the well-to-do outer suburban jurisdiction of Fairfax County.
Campaigning in Democratic strongholds, neither Stamos nor Morrogh presented themselves as old-style, law-and-order prosecutors. Stamos took credit for reducing the incarceration rate in Arlington County, while Morrogh campaigned under the slogan: "Effective. Fair. Progressive." Still, the Washington Post's story viewed the results as bellwethers: "Voters endorse new mandate on criminal justice," the headline read.
Miriam Krinsky, executive director of the Los Angeles-based advocacy group Fair and Just Prosecution, estimates that more than three dozen reform-minded prosecutors have been elected in recent years. In comments to the Post, Krinsky described the election results as evidence of "a growing new normal in the world of prosecutions." More and more communities and more and more voters are "tired about the old thinking in the criminal justice system," Krinsky explained.
Andrew Cohen, a senior fellow at the Brennan Center for Justice who also edits the daily report on criminal justice for the Marshall Project, similarly sees a trend in favor of reformers in local prosecutor races. "Clearly, a big part of the criminal justice reform movement over the past five years has been directed at these races as people realize how powerful local prosecutors have become at the local and state levels," Cohen says.
Cohen cautions, however, that elections cannot guarantee thoroughgoing reform of themselves. Several of the high-profile reform-minded prosecutors, such as Larry Krasner in Philadelphia, Kimberly Foxx in Chicago, and Aramis Ayala in Orlando, encountered opposition as they sought in office to turn away from punitive, sentence-maximizing prosecution policies.
Ayala, who is African American, declared her opposition to the death penalty upon taking office in 2017 after ousting the incumbent state's attorney in Florida's fifth most populous county the previous year. Florida's Republican governor, Rick Scott, responded by reassigning capital cases from Ayala's office to another state prosecutor — a move that the Florida Supreme Court upheld on a 5-2 vote. Politically battered, Ayala announced late last month [May 28] that she will not seek re-election in 2020.
Krasner, a former federal public defender and longtime criminal defense and civil rights lawyer, won election as district attorney in Philadelphia in 2017 in a campaign that drew opposition from the city's police union. In office, Krasner stopped prosecuting marijuana possession cases and instructed prosecutors to stop seeking cash bail for defendants arrested for misdemeanors or nonviolent felonies. Some judges overruled some sentence recommendations as too lenient and resisted Krasner's initiative to shorten probation sentences.
Kimberly Foxx, who is African American, won election as Cook County state's attorney in 2016 after having helped craft a criminal justice reform agenda as chief of staff to the Cook County Board president. In office, she has promoted bail reform by instructing prosecutors to agree to release on recognizance where appropriate and has raised the threshold for prosecuting theft offenses as felonies. The local police union has criticized Foxx's policies as soft on crime.
With more than 2,400 local and state prosecutors nationwide, the three dozen or so reformers elected in recent years according to Krinsky are far outnumbered when district attorneys gather for conventions and training sessions. But Krinsky's group is promoting a comprehensive reform agenda under the title "21 Principles for 21st Century Prosecutors" that calls for, among other changes, de-escalating charging policies, making plea bargaining more transparent, and reducing use of cash bail.
Krinsky acknowledges that the agenda "hasn't taken hold everywhere," but she believes that a "new paradigm" is beginning to form. "We are seeing candidates commit to the principles and commit to implementing them in office," she says.
Listed twelfth among the 21 principle is an exhortation to "address racial disparity," which the report says "exists at every stage of the justice system." The audience for that recommendation is overwhelmingly white, according to a recent study. Among 2,437 elected local and state prosecutors in office in 2014, fewer than 5 percent were African American, according to the study.
African Americans are also underrepresented among federal prosecutors, according to my review of the current officeholders. Among 93 U.S. attorneys nationwide, Louis Franklin, U.S. attorney for the middle district of Alabama, appears to be the only African American; my count found four Asian Americans and three Hispanics, all the others white.
Congress and President Trump are also on board the criminal justice reform movement, at least to some extent. Trump was taking unwarranted credit last week [June 13] for the First Step Act, the federal sentence-reducing law he signed in December 2018 after it moved through Congress with bipartisan support. Among other provisions, the law retroactively reduced crack-related sentences for 1,150 offenders: a significant even if modest step toward moving away from "Incarceration Nation."
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