AFTER DAN CONLEY announced last year that he would not seek re-election as the district attorney (DA) for Suffolk County, Massachusetts, which includes Boston and a few surrounding towns, five Democrats and an independent vied to replace him. Mr Conley endorsed Greg Henning, who worked for him for ten years. Mr Henning also received endorsements, and plenty of campaign contributions, from local police unions. Such support usually creates a glide-path to victory.
In this case it did not. Mr Henning lost to Rachael Rollins, one of a wave of DAs trying to reform the criminal-justice system from within. Ms Rollins has identified 15 charges—including shoplifting, receiving stolen property, drug possession and trespassing—“best addressed through diversion or declined for prosecution entirely”. Her office requests cash bail only when the accused is a flight risk. She has created a panel that includes a defence lawyer and a public-health expert to review all fatal shootings by police. These positions are all unusual for an elected DA; traditionally, the toughest-on-crime candidate wins. But the American conversation on criminal justice is changing. Ms Rollins may be in the vanguard, but she is not alone.
Her companions come from both parties. For 12 years Right on Crime, an advocacy campaign run by the conservative Texas Public Policy Foundation and the American Conservative Union Foundation, has advanced conservative arguments for criminal-justice reform. The Trump administration’s only significant bipartisan legislative achievement has been passing the First Step Act, championed by Jared Kushner, Donald Trump’s adviser and son-in-law. That bill, passed in December, among other things banned the shackling of pregnant prisoners and made thousands of prisoners eligible for early release.
Democratic presidential candidates have sought to build on this momentum; Bernie Sanders and Elizabeth Warren have released particularly ambitious reform plans aimed at reducing mass incarceration. But much of what they propose will either not work or be impossible without Democrats taking control of both houses of Congress, which seems unlikely.
Mr Sanders, for example, wants to spend $14bn a year on public defence lawyers. That is an admirable idea, but one that a Republican-controlled Senate is unlikely to approve. Ms Warren wants to repeal most of the 1994 crime bill, which increased incarceration rates. But one of the ways it did that was by incentivising states to pass “truth in sentencing” laws, which require prisoners to serve at least 85% of their sentences. Repealing a federal bill will not change those state-level laws. Both candidates want to ban private prisons, but say nothing about prison-guards’ unions, which are more effective drivers of mass incarceration. The work being done by DAs like Ms Rollins show how real criminal-justice reform can be achieved.
The primary lesson is that reform produces resistance. Kevin Graham, who heads the police union in Chicago—home to Kim Foxx, another reformist prosecutor—says he does not believe that “a prosecutor is going to achieve social justice in America…The job of a prosecutor is to prosecute people. We have defence attorneys. If we choose not to prosecute…then the laws don’t mean anything.” Others think that Ms Rollins is making decisions that should be left to legislatures. “If your idea is to basically…decriminalise certain statutes, run for your state general assembly,” says Duffie Stone, a prosecutor who heads the National District Attorneys Association.
Ms Rollins replies that her predecessors often declined to prosecute low-level cases; she just made practice into policy. And that policy is not absolute. She distinguishes between three hypothetical trespassers: a homeless person sleeping on public property, someone who falls asleep while high in a city hospital, and a violent felon caught with a gun outside his ex-girlfriend’s house. The first two, she argues, need help, not a criminal record; the third deserves the charge.
In a speech to police officers on August 12th, William Barr, the attorney-general, derided “anti-law-enforcement DAs” who refuse to enforce “broad swathes of criminal law. Most disturbing is that some are refusing to prosecute cases of resisting police.” As it happens, resisting arrest, when not combined with more serious charges, is on Ms Rollins’s do-not-prosecute list. Here too she draws a distinction: “If you’re charged with armed robbery and resisting arrest, that’s very different than a stand-alone resisting-arrest charge, which is often just, you’ve pissed this police officer off.” Annoying a police officer may not be good practice, but it is not a crime.
The results of Ms Rollins’s approach, Mr Barr warns, “will be predictable. More crime; more victims.” Most reformist prosecutors have not been in office long enough to tell. But Ms Rollins does not pretend to be a fortune-teller. Like many reformers, she has invested in data—her department has hired a technologist to update the creaky computer system. And she promises to be responsive to it. “If my policies, through data, show things are getting worse, why in God’s name would I want to make anything worse than it is?… And if the Boston Patrolmen’s Association wants…to say, ‘See, we told you,’ I’m going to say, ‘You’re right’.”■