The Trump Effect: Criminal Law Reform From The Trenches

At Fault Lines, Sam Bieler called it out: If criminal law reform is over, blame the cowards.

Donald Trump’s inauguration has prompted a great wailing and gnashing of teeth over the many ways the United States is about to become less great. Now, with Jeff Session’s confirmation all but inevitable, the most piercing wails have been reserved for the fate of the Civil Rights Division of the Department of Justice, which oversees everything from voting rights to police abuse litigation.

It is this latter charge that has commentators particularly worried: given Session’s hostility to federal investigations of police, pundits expect a dramatic fall-off in the number of cases DOJ will bring. Will this be a substantial roadblock to police reform? Only if state and local leaders display the lack of backbone they have to date.

The vast majority of criminal law reform happens far from the beltway. We tend to obsess over Supreme Court decisions and federal laws, but the ones that impact most people are made in places like Jefferson City, Tallahassee and Salt Lake City. Use of force policies are decided by local police chiefs. Prosecutorial discretion is exercised in small offices with metal desks by young lawyers whose names are never mentioned.

When people ask what they can do to change the perceived injustices they hear about, see on video, the answer is almost invariably unsatisfying. Vote. Support candidates for District Attorney, judge, who offer smart alternatives to the tough on crime, war on drugs, rhetoric that has served to get so many elected. This is unfulfilling because there is no immediate cause and effect, no big fix, no magic bullet.

The words of reform were uttered in many a press conference over the past few years, with hands being shaken and backs being patted, and almost no change occurring. And then came the big boom, the election of a demagogue who sold the old lies of crime being an epidemic when it clearly was just the opposite. And to add insult to injury, the Attorney General nominated would be the person least inclined to promote reform. Of the many adjectives used to describe Jeff Sessions, smart is never among them.

The concern, no shrieks, was that he would undo the great gains made under the prior AGs. Those gains largely consist of a sheaf of papers with which a killer cop’s hand can be swatted for being a bad boy. They are more an illusion of reform than anything else, for which we were all duly appreciative even as bullets continued to fly, clubs landed on their target and lives were being destroyed. We were so proud of these accomplishments that we couldn’t hear the screams of people in the streets for whom nothing changed.

But change is starting to happen. Not in Washington, but where it matters.

The newly elected district attorney in Denver, Beth McCann, announced last month that her office would no longer seek the death penalty. “I don’t think that the state should be in the business of killing people,” she said.

In Harris County, Tex., which includes Houston and has long been one of the most execution-friendly counties in America, the new district attorney, Kim Ogg, said there would be “very few death penalty prosecutions” under her administration.

Fault Lines writer JoAnne Musick has been brought in as Chief of Sex Crimes in Harris County under DA Ogg. Read what she’s written and consider whether this is the sort of person of exceptional integrity whom you want exercising discretion. For defendants in Houston, Kim Ogg and JoAnne Musick will make a difference in their lives. Jeff Sessions won’t mean a thing.

In Chicago, voters rejected Anita Alvarez and replaced her with Kim Foxx.

Reformist prosecutors are also changing how they handle non-capital offenses, which make up the vast majority of prosecutions. Kim Foxx, the new state’s attorney in Cook County, Ill., which includes Chicago, ordered her prosecutors in December not to bring felony charges in shoplifting cases involving less than $1,000 of goods, which is the vast majority of cases. The idea is to keep more nonviolent offenders, many of whom are homeless, drug addicted or mentally ill, out of jail and steer them into treatment programs where they will be less likely to re-offend.

Will Foxx be the change needed? Is her decision to exercise discretion on shoplifting the right one? The wrong one. Sufficient? A good start? Time will tell, but the fact remains that change is happening on the ground level if not in the D.C. Suite.

What happens in Washington is remarkably insignificant compared to what happens in the trenches of local courts across the country. We have 50 states’ worth of statutory laws, caselaw, local practice and peccadilloes. Add onto that layers of local ordinances and procedures.

It’s too much for anyone to keep in their heads, and so we focus instead on the big picture, the nationwide laws and decisions and convince ourselves that these are the really important ones. The national media feeds this misaligned focus by informing us of news that’s too wonderful or horrible, but most of the time has no impact on the vast majority of defendants facing prosecution or prisoners wondering whether they will ever get out. It’s not that it’s necessarily false information, but it just doesn’t mean what it purports to mean to the guy on the street who’s trying to figure out whether he’ll survive a traffic stop.

Now that we are unlikely to have a white knight from Washington ride in on his stallion to save us, what are we to do?

Bringing in the feds short-circuits this tedious political process. DOJ comes to town and using a potential lawsuit as a bludgeon, forces everyone to hold hands and make nice. If something goes wrong or money has to be spent, city leaders don’t take the blame, it’s those mean federal lawyers and judges, who, safely beyond the reach of elections, don’t care much about what troublesome locals think about them.

The past eight years brought us mostly rhetoric without substance. With a new president and attorney general, disinclined to come to our rescue, it’s time to stop waiting for someone in Washington to save us and to do it for ourselves. For real.


7 thoughts on “The Trump Effect: Criminal Law Reform From The Trenches

  1. Matthew S Wideman

    I wish more of the local “activists” in my community read this blog. I am no supporter of Mr. Trump, but I very rarely see an FBI Agent or Federal Judge affect my clients day to day rights. I have on the other hand experienced lazy and negligent police officers and prosecutors. These officers and prosecutors have very little regard for procedure or criminal rights. There appears to be very little recourse for an aggreived citizen or lawyer to hold the powers that be to the law.

    I am concerned that the lack of back bone shown by local and state governments, will lead to a belief that the “safety valve” of political participation and policy change in one’s local community is useless.

  2. Patrick Maupin

    The idea that the feds will come in and fix things is viscerally appealing to people who worry that the country contains vast swaths of lawless local fiefdoms. I blame Deliverance.

  3. Pingback: Bail Reform: Another Front In The War On Prosecutors

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