Today, voters sent a clear message: they want a justice system that works for everyone, and elected prosecutors need to get onboard or face losing their seats to more sensible counterparts. In Birmingham, Chicago, Denver, Houston, Jacksonville, Orlando, St. Louis and Tampa Bay, 2017 will bring new faces to the helm of these city’s respective District Attorney’s Offices.
Historically, prosecutor races flew under the public radar. Many elected prosecutors served for decades, winning election after election unopposed. When contested elections did occur, candidates’ rhetoric was an arms race as each tried to sound tougher.
Things are changing.
Since November 2015, at string of incumbent DAs have lost their elections to a candidate who explicitly promised to bring a more humane and enlightened approach to prosecutions in their office. In some places, like Duval County, Florida, the newly elected prosecutor is not necessarily “progressive,” but nonetheless expresses her views in rhetoric that is exponentially more reasonable than the incumbent. In other places, like Cook County, Illinois, the newly elected prosecutor won based on a new vision for the office: a promise to keep people safe while also treating defendants with more fairness and humanity based on an understanding that jailing more people does not always lead to safer or stronger communities. In other races tonight, e.g. in Maricopa County, Arizona, incumbents look like they will narrowly retain their seat against the reform-minded challengers, but those races have significantly shifted the political rhetoric in those counties, presenting a challenge to the incumbent to evolve with the times.
As a whole, these elections are a strong reminder that voters know that overzealous prosecution, fear-mongering, and a win-at-all-costs ethos have not made our communities safer. People across the country are ready for a fresh approach that provides true safety while also avoiding compounding the collateral damage to communities that years of mass incarceration has caused.
“The era of tough-on-crime rhetoric is coming to a close as voters realize that overzealous prosecutors have abused their power for too long. Voters are ready for a state’s attorney who will focus on long-term solutions, rather than short-sighted policies that make them sound tough, but don’t result in equitable or sustainable results. This could be a sea change and might mean that prosecutors might become more accountable to the public.” Daniel Medwed, a law professor at Northeastern University, and a member of our Fair Punishment Project Advisory Council.
“These results signify that overzealous prosecutors that resort to draconian sentences and pursue convictions with a win-at-all-costs mentality will soon see themselves being replaced with leaders who have rejected these failed policies of the 1980s and 90s, and are truly committed to reforming the justice system with proven, evidence-based, equitable solutions that increase public safety.” Ronald Sullivan, co-founder of the Fair Punishment Project and a law professor at Harvard Law School.
Below, we provide an overview of the individual races that reflect a new trajectory in local criminal justice politics. We will continue to update this response tonight, as results are announced.
HARRIS COUNTY, TEXAS
In Harris County, Texas, challenger Kim Ogg (D) defeated incumbent Devon Anderson (R) in a race that centered on criminal justice reform. Devon Anderson has been criticized for overzealous behavior as the District Attorney. Indeed, in its endorsement of challenger Kim Ogg, the Houston Chronicle claimed that Anderson’s office “pursues convictions at any cost.” The Editorial Continued: “Each month seemed to bring more allegations of prosecutorial misconduct, whether witnesses being paid for their testimony or evidence being withheld from defendants. Yet every time problems arose in the Harris County District Attorney’s Office, you could bet that Anderson would stonewall instead of standing for justice.”
How To Treat Crime Victims. The Nation’s Jessica Pishko, provides a perfect example of Anderson’s win-at-all-costs mentality, an approach that dehumanizes not only the people accused of having committed a crime, but also crime victims: “There was the rape victim that she threw into jail over the summer and made false statements about, claiming the woman was “homeless” (she wasn’t). This victim is now suing Harris County over her treatment, which included been accidentally marked as a sex offender—not a victim— while an inmate, being abused, and having her head bashed against the floor. According to her lawsuit, she was also denied medical treatment for her confirmed diagnoses of schizophrenia and manic-depressive disorder.”
Kim Ogg ran her campaign largely in opposition to Anderson’s actions: “Putting a witness in jail on a material witness bond is highly irregular and reserved for the worst of the worst witnesses, maybe gang cases,” Ogg told Houston’s Channel 2, “They can be protected by placing them in a hotel, you can place them with family, you can keep in contact.” Ogg later made clear during a debate with Anderson, that she believes: “Re-victimizing a victim never justifies the end.”
How To Deal With Drug Possession. How to treat drug offenses became a dominant theme in the Harris County election. Back in 2014, Anderson touted her “first chance intervention program,” which applies only to a police-designated “low-risk” first-time offender caught with less than two ounces of marijuana, and means that he or she would be arrested and then given the option of community service or a substance abuse class in lieu of the charge appearing on their record. If it seems as though this is a miserly approach to reforming the way the justice system treats drug possession, it might help to know that Anderson believes that these “small amounts of drugs” and “prosecuting drug users” are important because those drugs and those people “form the basis of most of the crime that we see down at the courthouse.” By contrast, as the Houston Chronicle noted in its endorsement of Kim Ogg, she “says that she will use ‘cite-and-release’ for low-level marijuana possession – a move that Texas has allowed for years but Harris County has failed to embrace.”
Anderson also continues to support convictions based upon so-called “trace” arrests, which as the Nation’s Jessica Pishko explains, are “felony arrests made on the basis of the possession of less than 1/100th of a gram of drugs: basically, the residue on a crack pipe or one crispy leaf dangling in a baggie.” By contrast, Ogg told the Houston Chronicle that she would immediately cease felony prosecutions in cases based on trace amounts of illegal drugs, including cocaine and crack. She said these cases should be treated as misdemeanors, and made ticketable offenses to avoid arrests.
The Death Penalty. Harris County, Texas, is sometimes called the buckle of the death penalty belt. To her credit, Anderson has decreased the number of capital prosecutions significantly. Nonetheless, Anderson personally secured the death penalty for Harlem Lewis, a man whose “IQ is in the 70s.” Ogg, however, emerged as the candidate who showed a stronger commitment to reducing the county’s use of the death penalty: “Under an Ogg administration, you will see very few death penalty prosecutions,” she told Reuters. She also called Houston’s reputation as an outsized producer of death sentences “a terrible image for our city and our county.“
HILLSBOROUGH COUNTY, FLORIDA
Andrew Warren, a former federal prosecutor whom the Tampa Bay Times said “wants to change the culture of the criminal justice system by putting a greater emphasis on rehabilitation and offender reform,” bested Mark Ober, who has served as the Hillsborough County State’s Attorney since 2000 (he is ahead by over 3,000 votes with all precincts counted, but some mail ballots remaining).
Warren painted Ober as outdated on criminal justice issues. Ober also has been criticized for other out-of-touch and overzealous behavior. At ThinkProgress, Carimah Townes wrote recently, “Ober has embraced outdated claims about the perils of weed and opposes Tampa’s decision to decriminalize pot.” At Daily Kos, Josie Duffy Rice criticized Ober for prosecuting a 57-year-old disabled woman who was framed for shoplifting in Wal-Mart (the store’s security footage captured most of the critical evidence). According to Ms. Duffy Rice, the jury “took less than sixty seconds to acquit Ms. Carll of the crime.” Tampa’s Channel 10 News, paraphrased one of the jurors who “said it seemed obvious the guard planted the evidence and couldn’t believe the state wasted time and money with this case.”
Warren also specifically focused on what he perceived to be Ober’s overzealous policies on juvenile charging and death penalty prosecutions. In a September debate, Warren charged that under Ober, juveniles are being charged as adults in Hillsborough County more than “just about anywhere in the entire country,” and cited as evidence of Ober’s overzealousness our recent Fair Punishment Project study, which listed Hillsborough as one of sixteen outlier death penalty counties nationally: “This is yet another example of an independent agency giving our current state attorney a failing grade in a critical area of criminal justice. To be singled out as one of the worst counties in the country is embarrassing and unacceptable. As state attorney, I will fix this and make sure our use of the death penalty is constitutional.”
MARICOPA COUNTY, ARIZONA
Bill Montgomery, the Maricopa County Attorney, narrowly retained his seat, in a race that had him unexpectedly fighting to keep his job against a relatively unknown challenger who in Phoenix, Arizona made prosecutorial misconduct and Montgomery’s overzealousness on a number of issues, including allegedly racist policies, abuse of death penalty, and obsession with marijuana prohibition a centerpiece of the campaign. As Slate’s Mark Joseph Stern wrote before the election: “Democrat and former prosecutor Diego Rodriguez mounted a credible challenge to Montgomery this year urging reform across the board. Notably, Arizonans will also have an opportunity to legalize recreational marijuana through a ballot measure on Tuesday. A victory in either contest would serve as a stinging rebuke to Montgomery; a victory in both would fundamentally alter the dynamics of Arizona’s criminal justice culture.”
Marijuana Policy. During a debate, Montgomery told a Vietnam veteran who said he was a medicinal and recreational marijuana user, “Well, then you’re violating the law, and I have no respect for you. And I have no respect for someone who would try to claim that you served this country and took an oath to uphold the constitution and defend against all enemies foreign and domestic, because you’re an enemy.” By contrast, Diego Rodriguez supports Prop 205, and he called out Bill Montgomery’s incendiary remarks about the veteran’s marijuana usage, stating “My opponent has become so obsessed with the issues surrounding Prop 205 that he has lost all perspective. His personal attacks on the veteran who is featured in this video show a complete lack of self-control and decency.”
Far from his only anti-marijuana tirade, Montgomery even sued for the removal of Prop 205 from the ballot, but his lawsuit was dismissed. Montgomery has held fast to his belief that marijuana usage is more harmful than alcohol consumption, and points to his religious beliefs as his source. His position undoubtedly makes it easier for him to evade his critics’ demand that he address the seeming hypocrisy of his acceptance of more than $8,000 in contributions from the alcohol industry.
Prosecutorial Misconduct. In 2013, murder charges were dismissed against Jeffrey Martinson because the “scope and extent of the misconduct in this case leaves the court with no alternative but to dismiss the case with prejudice.” The lead prosecutor, Frankie Grimsman, has no record of discipline on file now two-and-a-half years after the charges were dropped. In another case, Montgomery claimed to be unaware of a misconduct finding against one of his prosecutors, Eric Basta. Prosecutors in that case violated judges’ orders about the 911 tapes on three separate occasions and then sought to circumvent the grand jury process altogether. Arizona courts also have found numerous instances of improper behavior and misconduct by prosecutor Juan Martinez. A Fair Punishment Project report details how Martinez once compared a Jewish defense lawyer to Adolf Hitler and his “Big Lie,” a tactic the Arizona Court of Appeals deemed “reprehensible.” The Arizona Supreme Court has called out Martinez by name during oral argument, and found that he committed misconduct in at least three capital cases, including Lynch v. Arizona, a case that the U.S. Supreme Court reversed this year for unrelated reasons. The state court found 17 instances in which Juan Martinez acted inappropriately in that one death penalty case alone. This year, the Arizona Supreme Court disciplined Juan Martinez for his record of inappropriate conduct. Finally, the Arizona Supreme Court has rebuked prosecutorial misconduct in at least three death penalty cases committed by Jeanette Gallagher, another senior prosecutor in Montgomery’s office, calling her behavior “improper,”“very troubling,”and “entirely unprofessional.” Gallagher, who heads Maricopa’s capital case unit, has personally obtained at least nine death sentences, including against a military veteran diagnosed with paranoid schizophrenia and a brain-damaged child whom she described to the jury as “16 going on 35.”
The Death Penalty. In response to the Fair Punishment Project report listing Arizona as one of America’s 16 outlier death penalty counties (and noting the extensive misconduct findings discussed above), Rodriguez stated that he “will impose an immediate moratorium on all current and pending death penalty cases in order to reassess whether the cases are truly the ‘worst of the worst’ and also because the people of Maricopa county can no longer trust Mr. Montgomery’s judgment or ability to properly administer justice.” Instead of doubling down on the death penalty, though, Montgomery noted that he is using the death penalty less and less.
DENVER COUNTY, COLORADO
Beth McCann secured her position tonight as the next District Attorney of Denver, Colorado. McCann virtually ensured her win back when she defeated sitting Denver district attorney Mitchell Morrissey in a primary battle earlier this year. Morrissey took a fiercely anti-marijuana position, and even wrote a letter to Californians that (we believe falsely and recklessly) implied that the legalization of recreational marijuana in Denver has led to more crime. McCann does not appear to be on the record on legalization, except that she noted that the community voted to legalize, and she mostly disagreed with the idea that legalization posed significant problems for the District Attorney’s office.
On the death penalty, Morrissey recently said: “It works … and we should be very careful about getting rid of it.” True to his word, Morrissey sought a death sentence as recently as last year (unsuccessfully, the jury returned a life verdict). McCann opposes the death penalty, and stated that she will not seek the death penalty as the District Attorney.
When Michael Roberts of Westword, asked McCann whether she would “advocate for issues even in areas where the district attorney’s office doesn’t have direct control,” McCann answered: “Yes, definitely. I think the DA can be more visible and use the office to advance the conversation about mental health, substance abuse, racial disparities, mass incarceration.” McCann noted that as a legislator she “got a bill passed for juvenile justice reform, to provide due process to juveniles who are facing prosecution in felony court, to allow for a hearing to determine whether or not they should be charged as juveniles or adults.” She also “tried to get a bill through to get one of the boxes off an employment application, so they don’t ask in the initial application if you have a criminal history … the bill was about giving someone at least a chance to interview and show whether they’re qualified for a job. It’s people who are out of jail but they can’t find a job, they can’t find housing: It’s hard for them to be productive members of society.”
JEFFERSON COUNTY, COLORADO
Pete Weir, District Attorney for Jefferson and Gilpin counties, narrowly retained his seat tonight against challenger Jake Lilly. Lilly campaigned on reforming the justice system and finding alternatives for drug and other non-violent offenders, while Weir had recently insisted that mass incarceration is a “fallacy” and stated that he does not “accept the implication of bias in the criminal justice system.” Notably, this is one race where a Soros-backed group ran a fear-mongering advertisement calling Weir soft on crime, a move that may have been a miscalculation in a public climate that is seeking to undo–not double-down on–over-incarceration.
Lilly, discussing his differences with Weir, explained that, “I’m in tune with criminal justice reform. That’s being smart on crime. Not everyone needs to go to prison. Not everyone needs to go to jail.” In response to a questionnaire distributed by the Colorado Criminal Justice Reform Coalition, Weir said that it is “too broad a statement to suggest that Colorado ‘has too many people that are incarcerated and / or under some form of criminal justice supervision.’” Lilly, answering the same survey, replied that “the Department of Corrections here in Colorado claims 43 percent of the people currently incarcerated are in for non-violent crimes. That is the issue. Locking up non-violent offenders, especially non-violent drug offenders, serves no purpose other than to fill our prisons and enrich the private prisons that I am so fundamentally opposed to.”
Lilly also has voiced his support for legalized marijuana, and had stated that the “drug war in this country is an abject failure and we have to totally revamp our approach. I am a results kind of guy. If something doesn’t work, I want to change it and find what works.”
Weir also has lobbied for repeat DUI offenders to receive mandatory minimums in prison, even in cases where no one suffered physical harm and regardless of treatment opportunities. “We have to get them out of our community,” he said to CBS News. Lilly has voiced opposition to mandatory minimum sentences.
JEFFERSON COUNTY, ALABAMA (Birmingham Division)
As of 3:05 AM EST, the race between incumbent Brandon Falls (R) and challenger Charles Todd Henderson (D) was too close to call (update: Falls has conceded the race). Jefferson County is one of America’s 16 outlier death penalty counties. Henderson has said: “I am not supportive of the death penalty nor incarcerating our children in adult jails and prisons.”
FLORIDA’S FOURTH JUDICIAL CIRCUIT (includes Duval County, Florida)
In August, Angela Corey, called one of the “deadliest” and “cruelest” elected prosecutors in America, lost her seat in a primary defeat. Melissa Nelson ran unopposed in tonight’s general election, and so she will officially win the State’s Attorney race. Corey was the State’s Attorney for the 4th Judicial Circuit, which includes Clay, Duval and Nassau counties. Corey was featured on the cover of The Nation and in the New York Times Magazine, as an example of an overzealous prosecutor out of touch with the changing culture around criminal justice reform in America. Under her leadership, Duval County became one of the most punitive jurisdictions in America, from its use of capital punishment to its use of the direct file option for handling juveniles in adult court.
Among Corey’s dubious accomplishments: She sought the death for a bipolar man with a 67 IQ score and “sent Marissa Alexander…to jail for 20 years for firing a warning shot at her abusive husband.” She had a 12-year-old boy, Cristian Fernandez, indicted for 1st degree murder. Under her leadership, Duval County became of the nation’s highest producing death sentencing counties. In one case, after refusing to take the death penalty off the table despite the wishes of the victim’s mother, Darlene Farah, Corey even attacked the mother as “more interested in publicity than actually grieving for her daughter.”
Mary Anne Franks, a law professor at the University of Miami, stated that “Corey’s loss is an encouraging sign that the public will no longer tolerate overzealous and unprincipled criminal prosecutions, including women and children.” Law Professor Kenneth Nunn at the University of Florida stated that “For too long, Duval County has been an outlier in its excessive use of the death penalty, its harsh punishment of juveniles, and its reliance on outdated sentencing practices. Voters have embraced new leadership and turned the corner towards a State Attorney’s Office that the community can trust.”
FLORIDA’S 9th JUDICIAL CIRCUIT (includes Orlando, Florida).
Jeff Ashton, is the State’s Attorney for Florida’s 9th Judicial Circuit, which includes Orlando. He lost his primary bid back in August to Aramis Ayala, whom as the New York Times recently reported, “started out as a prosecutor but became a public defender because she believed too many defendants were receiving inadequate counsel.” Tonight, Ayala will officially win the race after winning the general election (she was unopposed).
Ashton had a tumultuous run as the State’s Attorney. He dragged his feet in firing a prosecutor in his office, Ken Lewis, who posted on social media that SCOTUS Justice Sonia Sotomayor would be working fast food if not for affirmative action, and wished a “Happy Mother’s Day” to “crack hoes.” Indeed, Ashton did not fire Lewis after these posts. He only fired Lewis after a second round of racist vitriol when, following the Pulse Nightclub shootings, Lewis said Orlando was filled with “miscreants and ghetto thugs.”
Ashton was also criticized for misconduct after eliciting “highly prejudicial” and “improper” expert testimony in one capital case and withholding evidence in another “purely circumstantial” case. He also received attention for his overzealousness. For instance, at ThinkProgress, Kira Lerner reported that “as area public defenders pleaded with the city to rely on civil citations instead of arresting children, Ashton said that officers may still have to handcuff 10-year-old children because ‘there may occasionally be a case when law enforcement simply does not have a choice for the safety of the officer.’”
“Voters have made it clear with their decisions to unseat Jeff Ashton that they know that overzealous prosecution and fear-mongering haven’t made our communities safer. Voters want a prosecutor who understands that the complex problem of violent crime can’t be solved with sound bytes,” said Desmond Meade, President of the Florida Rights Restoration Coalition.
SAINT LOUIS CITY, MISSOURI
Jennifer Joyce was the Circuit Attorney for St. Louis City District. Her chosen successor, Mary Pat Carl, lost in the Democratic primary earlier this year. While Joyce ran the Circuit Attorney’s office, prosecutors in her office had convictions reversed for improper impeachment, “mischaracterizing” a prior statement, and improper “gang affiliation” comments. Along the same lines, Chief Assistant Beth Orwick “reluctantly acknowledged that Joyce’s office has willingly violated” evidentiary rules to withhold witness information. Kim Gardner, who won the primary, will officially win the race tonight (unopposed), meaning that she will become St. Louis’s first Black head prosecutor. Gardner has emphasized that “we have to address the broken criminal justice system.”
COOK COUNTY, ILLINOIS
Anita Alvarez is the incumbent State’s Attorney for Cook County, IL. Kim Foxx won the Democratic primary on Mar. 15, 2016, but is expected to officially became the winner tonight after beating the Republican challenger, which is mostly a formality in heavily blue Cook County. Kim Foxx has said that “the justice system sends too many children down the path to recidivism with policies that over punish youthful offenses,” and she plans on “reforming the juvenile justice system, by, for example, seeking to “[d]isrupt the school-to-prison pipeline by ending excessive arrests on school grounds and refusing to up-charge schoolchildren for in-school misbehavior.” She also has promised to “end frivolous prosecutions of non-violent drug offenses to clear time in the courts and allow staff to focus on more serious cases.”
The Huffington Post’s Kim Bellware reported that “Alvarez handily won her previous re-election bids, but her pattern of [seeking] juvenile life without parole sentences — and low rate of prosecuting police misconduct eventually drew the ire of those hoping for progressive reform.” For example, Adolfo Davis was only 14 years old when he was convicted as an accomplice to a double homicide and given life in prison without parole. Despite his “commendable acts of self-improvement,” Davis was recently re-sentenced to life in prison and will remain there until his death despite evidence of his rehabilitation and a lack of proof that he fired the weapon.
At the Daily Kos, Josie Duffy Rice called Anita Alvarez one of the “worst prosecutors in the country” both for her aggressively over-punitive style, and because of her peculiar behavior in cases involving serious claims of actual innocence. For example: A Black teenager had an airtight defense: he was in police custody at the time of the murder for which he was accused. Yet, two weeks later, he confessed after police woke him in the middle of the night and questioned him without a parent, guardian or lawyer present. Prosecutors failed to produce county jail logs showing the defendant was in custody at the time of the crime, claiming they were lost. Once Alvarez inherited the case, she waited five years to release him.
Alvarez also fought DNA tests for defendants who were later exonerated by DNA evidence, after serving more than a decade in prison for a rape they didn’t commit. Even after their release, Alvarez stated that a possible explanation for the DNA found on the victim’s body was the result of necrophilia—theorizing that a newly convicted rapist had sex with the girl after she had already been killed by the exonerated defendants. In a different case, she prosecuted a witness from a 1992 double murder trial who came forward to recant his testimony. He was sentenced to 30 months in prison. Twenty-three former prosecutors, judges and former Governor Jim Thompson sent a letter to Alvarez saying the witness’ prosecution could prevent others from coming forward to disclose false testimony.
Nathson Fields spent 17 years in prison for a 1985 double murder—a conviction that was later overturned. Fields won a certificate of innocence from an Illinois judge that would make it easier for him to pursue a civil lawsuit against Illinois for wrongful conviction. But Alvarez appealed the certificate of innocence to a higher court and had it thrown out.
JAMES STEWART WIN IN CADDO PARISH, LA
Dale Cox was the interim Caddo Parish District Attorney. In a 2015 death penalty trial, Cox said, “I want to kill everyone in here. I want to cut their fucking throats…if any of them want to go outside we can do it right now.” Huffington Post’s Kim Bellware attributed Cox’s withdrawal from the D.A. race to his “shockingly high record of capital murder convictions.” Indeed, after infamously stating, “I think we need to kill more people,” Cox explicitly cited the disconnect between his views on the death penalty and the views of the community where he lives as a reason for leaving the race.
James Stewart ultimately became the first black District Attorney of Caddo Parish on Nov. 22, 2015. James Stewart, who said he “really thought the DA’s office needed new leadership,” promised “to bring professionalism and ethics back to the…office. Since taking the helm, no one from the Parish has been sentenced to death, and he has agreed to life sentences for two people previously sentenced to death, including for Brandy Holmes, a woman who, as Charles Ogletree (one of her former lawyers) wrote in Slate “was named after her mother’s favorite drink while pregnant, and who attempted suicide as a child after she was raped. [She] suffers from fetal alcohol syndrome, organic brain damage, post-traumatic stress disorder, and major depression.”
MISSISSIPPI’S 16TH JUDICIAL DISTRICT (includes Columbus, Mississippi)
Last November, in Columbus, Mississippi, Forrest Allgood, one of America’s most notoriously overzealous prosecutors, lost to Scott Colom, who openly ran on a criminal justice reform platform. After his victory, Colom told the local paper, The Dispatch, that voters were ready to hear his message: “They’ve understood that sending non-violent offenders to jail for a long period of time is not productive for society and counterproductive for the individual. I had the courage to push that message. Usually, a district attorney doesn’t run on that. Usually, a district attorney runs on ‘tough on crime’ like everybody else. But I had the courage to say what I thought was the truth and people responded to the truth as they often do.”