While there have been a number of somewhat disappointing “progressive prosecutors,” who remain prosecutors even though they mouth the sounds of criminal law reform, there have also been a few who are proving to be the “real deal.” Larry Krasner in Philly. In Dallas, John Creuzot is making waves with his free shoplifting position, and in Boston, Rachel Rollins seems to be doing what she said she would do.
Will they pull it off, put their reforms into practice and make it work, without bringing down a wave of crime or unintended consequences on the good people of their cities who elected them to office with the best of intentions? Time will tell, but so far it appears that more than a few basic assumptions upon which prosecutors and lawmakers, and their fans, have relied forever are being tested and failing. Maybe imprisoning people. more people and for ever-greater lengths of time, isn’t the only answer to protecting the public.
Having made some headway into the prosecutorial function, even if it’s only a few at the moment who are serious about reforming their practices, attention is turning toward the third leg of the criminal law stool. Judges. As much as Larry Krasner’s office is trying to correct errors of the past, the judges aren’t cooperating. Indeed, judges are fighting prosecutors the way prosecutors fought the defense.
For those courts where judges are elected, why not progressive judges?
After watching these developments with growing dismay, Rick Krajewski, an organizer for a leftist political group called Reclaim Philadelphia, convened about 30 Philadelphia activists in January at the offices of a prisoner-advocacy organization to float a radical proposal. Many of them had been instrumental in getting Krasner elected. But clearly, electing a progressive prosecutor hadn’t been enough. This time, Krajewski wanted to persuade them to spearhead a rare grassroots campaign for the typically sleepy judicial race.
This meeting birthed a coalition of organizations that collectively are raising public awareness about Philadelphia’s May 21 primary election and the judicial candidates running for seven open benches. Some are taking the unusual step of campaigning for candidates who share their progressive values. The coalition includes anti-incarceration advocates and activists for racial equity. Its platform includes eliminating cash bail, increasing sentences to rehabilitation-focused programs rather than prison, barring U.S. Immigrations [sic] and Customs Enforcement from courts, and decriminalizing sex work and drug use.
Is it doable? In Houston, voters replaced the full suite of judges, 59 in all, and my buddy Frank Bynum got his robe. So why not Philly? Why not everywhere?
Historically, that pressure has been applied by advocates for a more punitive justice system. The authors of a 2015 Brennan Center study analyzed television ads for judicial candidates nationwide and found that an increasing number of ads focused on how harshly the candidate would punish bad actors: In 2013 and 2014, a record 56 percent of campaign ads lauded tough-on-crime records or lambasted opponents for being soft. In the past, advocates on the left have lamented how these political pressures have influenced judges.
The debate over whether we would be better served by elected or appointed judges goes around every once in a while, but the fact remains that neither is a perfect solution and both have their deep faults. But as long as people vote for judges, absurd as it may be when voters go party line and have neither a clue who the person they’re voting for may be, what she stands for, why they should vote for or against them, the opportunity exists to influence who sits on the bench.
Is it wrong to seize upon the opportunity? In a better world, one might argue that the three criteria for the office would be knowledge, temperament and integrity, meaning that we not only want smart and honest judges, but fair judges. Fair is good, right?
Then again, that’s not how the gig plays out in real life. Judges have sought the endorsement of their local police unions, and this isn’t because police unions are deeply concerned with fairness. Judges have openly announced that they will deal with criminals harshly. Not only are they telegraphing their lack of neutrality, but making a promise to voters that they will be as unfair as the voters want them to be. And for a very long time, no one ever lost the election for judge by being too tough on crime.
So can candidates who announce in advance of the election that they will not be hard on criminals, close friends with the cops and the saviors of potential victims of father-rapers, capture the hearts and minds of voters?
Mahjoubian, who is not involved in the progressive coalition, doubts that its recommendations alone—or his website, for that matter—will be enough to sway voters, who are accustomed to accepting the Democratic Party’s slate. “I have not personally seen any one organization or slate take off in a way that has more of an effect than the party has,” he said. In his view, swaying the elections would take tenacious door knocking. Some of the organizations that now make up the coalition proved capable of this during Krasner’s district attorney’s race in 2017, but thus far, despite activists’ early efforts, the campaign to reform the judiciary is much less visible—judging from media appearances and lawn signs—than the Krasner campaign was.
For anyone confused here, the Democratic Party’s slate is not the slate of reform when it comes to criminal law and the judiciary. It’s the slate of lawyers who lick stamps in the party boss’ office until it’s their turn. It’s the slate of the usual suspects, who are likely marginally different than the other team’s usual suspects.
Will this push for progressive judges work? The dynamic involving a single office, District Attorney, and an array of candidates plays out differently. It may not be as doable without the Party’s approval, and without the dedication of a dedicated group going out on a limb to make it happen. In offices that don’t usually capture a lot of interest, a small group of dedicated supporters can make an election happen. Are they there for judges? Can they be?
But more to the point, should an office whose primary qualification is impartiality be marketed based on extreme partiality? Of course not. But given that judges have campaigned, and won, based on their close and loving relationship with the police, and their express promise to be as harsh as possible, it’s hard to complain about candidates who take the opposite side.
Then again, judges remain exposed to the whims of the public when they’re asked to make the hard, but correct, legal call knowing that the mercy they might show a defendant like Brock Turner could not only spell their unelectability, but the end of their career altogether.