All across the nation, a major pushback against hardline, tough on crime prosecutors is taking place. In the same election cycle which saw the elevation of “law and order” candidate Donald Trump to the presidency, several high profile prosecutors have been voted out of office.
In Chicago, incumbent Cook County prosecutor Anita Alvarez lost the democratic primary to newcomer Kim Foxx. Alvarez had been dogged with controversy after she allegedly covered up the shooting death of Laquan McDonald by police officer Jason Van Dyke. Van Dyke was eventually charged with murder after a dashcam video surfaced in which he is seen shooting the teenager 16 times.
Foxx celebrated her victory as a mandate from the people to bring reform to a failing system.
“Our struggles here are very real,” said Foxx. “The need to rebuild a broken criminal justice [system] here in Cook County is not work that should be taken lightly.”
In Cleveland, Cuyahoga County Prosecutor Tim McGinty lost to Michael O’Malley. McGinty’s short tenure as top prosecutor in Cleveland was marred by his bungling of the Tamir Rice case. McGinty failed to obtain an indictment against the rookie cop who shot to death 12-year-old Tamir Rice, who made the fatal mistake of being black and possessing a toy gun.
And in Duval County, Florida, voters gave Angela Corey, known as one of the most caustic and deadly prosecutors in the nation, her walking papers. Corey had worked hard to charge 12-year-old Cristian Fernandez as an adult for the murder of his 2-year-old brother. Fernandez had been molested by one of his mother’s boyfriends, and witnessed another shoot himself in the head. The evidence against the boy consisted mainly of a constitutionally suspect confession. But Corey did everything in her power to try the boy as an adult so that he could be sentenced to life in prison.
In an ironic twist, the pro bono attorney who defended the accused child and obtained a plea deal that limited his sentence to juvenile jail unseated Corey. Melissa Nelson, an unknown corporate lawyer, earned more than 64 percent of the vote compared to Corey’s 26 percent.
Criminal justice experts applauded the move to replace a controversial and aggressive prosecutor.
“Corey’s loss is an encouraging sign that the public will no longer tolerate overzealous and unprincipled criminal prosecutions, including women and children,” said Mary Anne Franks, a law professor at the University of Miami.
Fordham law professor John Pfaff echoed the sentiment.
“Corey’s defeat tonight continues a small–but important–trend of powerful, incumbent prosecutors losing primary elections for being too aggressive,” said Pfaff. “Tonight is further evidence that being the toughest prosecutor on the block no longer ensures victory, even in a Republican primary.”
The public backlash against overzealous prosecutors strikes at the heart of an area of the criminal justice system long seen as immune to reform. Prosecutors wield enormous power through charging decisions and plea bargains. And yet there is little to no oversight over the decisions made by prosecutors. “You basically have unchecked power and no transparency,” said Daniel Medwed, a professor at Northeastern University School of Law.
This is especially true considering that incumbent prosecutors win re-election 95 percent of the time. Ronald Wright, the Wake Forest University School of Law professor who tracked electoral outcomes for 10 years in order to arrive at that statistic highlighted a major problem that results from this phenomena.
“In such a setting, prosecutors have little reason to expect that they will have to explain their choices and priorities to the voters. The outcomes, in sum, demonstrate that elections produce low turnover and few challenges,” said Wright.
The recent losses suffered by aggressive, hard-line prosecutors may portend changes, however.
“The era of tough-on-crime rhetoric is coming to a close as voters realize that overzealous prosecutors have abused their power for far too long,” said law professor Daniel Medwed. “This could be a sea change and might mean that prosecutors might become more accountable to the public.”
President Obama had suggested the importance of voter vigilance when it comes to all areas of the criminal justice system, including the office of the prosecutor.
“If you want more justice in the justice system, then we’ve all got to vote not just for president, but for mayors and sheriffs, and state’s attorneys and state legislators,” Obama said. “That’s where the criminal laws are made, and we’ve got to work with police and protestors until laws and practices are changed. That’s how democracy works.”
Sources: https://washingtonmonthly.com/, https://theintercept.com, www.nydailynews.com, www.slate.com, https://thinkprogress.org, www.huffingtonpost.com, http://thecrimereport.org, https://www.vox.com/policy-and-politics/2017/11/8/16622438/larry-krasner-philadelphia-election-prosecutor, http://www.motherjones.com/politics/2017/11/larry-krasner-philadelphia-district-attorney-criminal-justice/, http://www.nydailynews.com/news/national/laquan-mcdonald-tamir-rice-prosecutors-voted-article-1.2566061
Originally published in Criminal Legal News on February 22, 2018.