PROGRESSIVE PROSECUTOR MOVEMENT MAKES MAJOR GAINS IN DEMOCRATIC PRIMARIES

30 October 2020

Reformers in Arizona, Michigan, Missouri, and New Mexico won their primaries for district attorney on Tuesday night.

LIFE WAS LOOKING good for Karen McDonald. After a successful legal career that included a stint as a line prosecutor, as well as time working with foster children and in private practice, she ran to be a Michigan circuit court judge and won in 2012. State judges virtually never lose reelection, so it was effectively a lifetime appointment. She easily won a second six-year term in 2018, but something wasn’t right. 

She had gradually come to realize that the real power in the criminal justice system rested with prosecutors. The wealthy, she observed, did just fine in this system, but the poor, and particularly poor people of color, had little chance. As a judge, she was bound within tight rules that constrained her discretion. “It’s a great job, but I couldn’t fix what I think is wrong as a judge. You can’t fix that,” she told The Intercept in an interview on Wednesday. “By the time a litigant comes before a judge, they’ve already been charged and the prosecutor decides who’s being charged and what to charge them with. And judges listen to arguments from prosecutors and they’re persuaded.” 

So McDonald did something extraordinary in the legal world: She stepped down and challenged the incumbent Oakland County prosecutor, the hard-line Jessica Cooper.

State law required her to leave the bench a year before the filing deadline, so in April 2019, she stepped down. “Candidly, the thing that changed for me was when Donald Trump was elected,” she said. “We’re in a moment where if we don’t start taking risks, we’re going to keep electing people like Donald Trump. You have to have people willing to put something on the line.”

Giving up her gavel, she often thought to herself, had been a crazy thing to do. “I’m still trying to process it, to be honest,” she said. “There were moments I woke up the last year and thought, what have I done? With every day that went by, I realized so much was counting on this race. It wasn’t just about me getting another job; it was about people in our community feeling the justice system will be fair.” 

McDonald said that even though the 1.3 million-person suburban county is known for its wealth, there are significant populations of people of color in urban areas, as well as significant rural swaths. Far from encountering the types of voters Trump hopes to win with a fear-driven “law and order” approach, McDonald said the suburbanites she encountered were in agreement that the system had been unfair to Black and brown people and needed to be reformed, not hardened. “There’s such an awareness we’ve gotten it wrong,” she said. “It’s tragic to me so many people had to die, like George Floyd.”

The movement to oust hard-line prosecutors and replace them with committed reformers first broke out in Philadelphia, with the 2017 victory of radical criminal defense attorney Larry Krasner in the race for district attorney. Since then, the push has met with major successes, and several near-misses, particularly in Dallas, Texas, and Queens, New York. On Tuesday night, the movement realized a major step forward, with reformist prosecutors, including McDonald, winning Democratic primaries in counties covering at least 3 million people in four states.

WEIGHING IN ON the Oakland County race, the Detroit Free Press, which had previously backed Cooper in each of her elections, editorialized: “Times change — and Cooper, 74, has changed little,” going on to endorse McDonald. “The incumbent prosecutor is the wrong person to take on the challenges confronting law enforcement in 2020.”

Voters agreed and threw her out for McDonald in a landslide 2-1 margin. “This is not going to be easy, but the time has come,” said McDonald, who had the backing of the Working Families Party and other elements of the progressive infrastructure, after her victory. “You saw the results, that’s a public mandate.” She faces a Republican challenger in the general election, but is favored to win in the increasingly Democratic county. 

McDonald is perhaps uniquely well positioned to reform the Oakland County Prosecutor’s Office. She worked in it as a line prosecutor for four years before leaving to do work with foster children and troubled families. Combining that with her time on the bench, she has seen the way that the justice system fails people and families from nearly every systemic angle. Her platform calls for an end to cash bail, pressure on prosecutors to amend and reduce charges, a commitment to revisit old convictions, an end to marijuana possession prosecutions, and an array of diversionary programs. 

“Jessica Cooper was an old-school hard-ass prosecutor and out of step with what has become a fairly socially liberal suburban county,” said Samuel Bagenstos, a prominent progressive Michigan attorney who ran an unsuccessful bid in 2018 for Michigan Supreme Court. “Karen McDonald will be way better. I don’t expect her to be the second coming of Chesa Boudin or anything, but she’ll have a much more up-to-date view of the limits of the criminal justice system.”

In Michigan’s Washtenaw County, situated between Jackson and Detroit, progressive candidate Eli Savit won the primary for district attorney with more than 50 percent of the vote in the three-way race, 41,673 of 82,557 votes cast. The county leans further left than most others in the state — Sen. Bernie Sanders won it by more than 11 points in the 2016 Democratic presidential primary. Washtenaw is also home to the University of Michigan in Ann Arbor and Eastern Michigan University. (Sanders endorsed Savit in June.) Savit ran on eliminating cash bail, ending coercive plea bargaining, focusing on rehabilitation and reintegration for people who’ve completed criminal sentences, and moving away from a “jail-first” mentality by prioritizing diversion and treating mental health, trauma, and addiction outside of the criminal system.

“Eli Savit, in my county, will be really good,” said Bagenstos. “He’s young and ambitious and definitely wants to be in the Larry Krasner mold. And Washtenaw County is a great place for that, as probably the most progressive county in the state.”

“I think it gives us real mandate,” Savit told The Intercept. He’s served since 2016 as senior adviser and counsel to the City of Detroit, where he’s led efforts to make it easier for people to get their criminal records expunged. Savit also lectures at the University of Michigan Law School and previously clerked for Supreme Court Justices Ruth Bader Ginsburg and Sandra Day O’Connor. “We won precincts and areas across the county, from our cities to our more rural communities. … We’re excited to start with the work of turning the page on the era of mass incarceration, and building a fairer and more equitable prosecutor’s office here in Washtenaw County,” he said. “We ran very openly from the start of the campaign — that was what we were talking about.”

In Pima County, Arizona, which covers 1 million-plus residents and the city of Tucson, an old-school Democratic prosecutor, Barbara LaWall, stepped down after 24 years in office spent growing the prison population and working with the state’s Republicans to battle efforts to reform the system. Given the new political climate, the Democratic primary to replace the outgoing incumbent had a familiar feel: Three candidates ran, all of them claiming the mantle of criminal justice reform. But candidates have records to look at and specifics matter too. Advocates of genuine reform — including Arizona Rep. Raúl Grijalva — got behind Lauren Conover, a former public defender and a criminal defense attorney. That profile — moving from the defense table to the prosecutor’s office — has been the gold standard since Krasner’s pivotal victory in Philadelphia in 2017. (Until, perhaps, more judges like McDonald start running.) Her main opponent, Jonathan Mosher, had a hard time earning reformist credibility since he was endorsed by LaWall and had served for years as her deputy. For decades, that would have been enough to waltz into the seat, but this time, voters went with Conover, who is unopposed in the general election.

In Maricopa County, Arizona, progressives had rallied behind Will Knight, but he was beaten handily by Julie Gunnigle, who ran on a progressive platform and would be an improvement for criminal justice reformers over the incumbent Republican, but has work to do to win the trust of reform advocates after reports of an egregious case of over-prosecution from her past. That county earned national notoriety under the tenure of former Sheriff Joe Arpaio, whose police department was found to be illegally racially profiling Latino motorists in 2011. In 2017, Arpaio was found guilty of criminal contempt for violating a court order related to the racial profiling case and was pardoned by Trump. This year, he ran to regain his old seat and is locked in a close contest for the GOP nomination.

In St. Louis, Missouri, one of many sites of massive ongoing protests against police brutality, Circuit Attorney Kim Gardner defended her first challenge as an incumbent. Gardner, who was elected in 2016 as St. Louis’s first Black circuit attorney, has come under intense backlash from the local police union and establishment politicians for her approach to criminal justice reform. She won more than 43,000 of 71,000 votes cast and will face Republican candidate Daniel Zdrodowski in November. 

Gardner’s office has been the subject of high-profile drama, particularly related to pushback from the St. Louis Police Officers’ Association to her attention to addressing racism within the department, and her indictment of former Republican Missouri Gov. Eric Greitens over allegations of campaign misconduct. (Greitens was eventually cleared of wrongdoing after an 18-month investigation, and Gardner came under fire for hiring a prosecutor who was later charged with felonies including perjury.) In January, Gardner sued the police union and the city, saying that they engaged in a racially motivated conspiracy to block her from implementing reforms and push her out of office. The case is still pending. 

“I think this sends a message to all the status quo tacticians who want to impede change, that enough is enough,” Gardner told The Intercept on Wednesday. She recognizes that advocating for justice in the criminal system could make her unpopular among law enforcement and others in the community, but said that the broad coalition of people “came out against a powerful status quo” to elect her are evidence that voters support the need for change. Sanders endorsed Gardner, along with nine other prosecutorial candidates, in June. California Sen. Kamala Harris endorsed Gardner in May, and Massachusetts Sen. Elizabeth Warren endorsed her in July.

Gardner’s opponent Mary Pat Carl, a former city prosecutor and homicide attorney who came in second in a four-way primary for county attorney in 2016, lost by 15,000 votes on Tuesday. Carl departed her post at the circuit attorney’s office in 2017 following Gardner’s election. She campaigned on improving the office’s transparency and addressing gun violence against children in the city. 

Gardner came under attack from prominent Republicans, including Trump and Missouri Sen. Josh Hawley, after she charged a couple that pointed guns at protesters in St. Louis last month. Trump defended the couple and said the attempt to prosecute them was “a disgrace.” Hawley asked the Justice Department to open a civil rights probe into her office. Gardner received increased death threats and racist attacks following the remarks, the Washington Post reported. The couple later appeared in a Trump campaign ad

“When you have people who promote divisiveness, like the president of the United States,” Gardner said, “and then you have the senator Josh Hawley, and many others like Eric Schmidt, the attorney general, and the governor use fear and divisiveness as political rhetoric to stop the efforts of reform and police accountability — the people are tired of it.” 

In Lawrence, Kansas, incumbent District Attorney Charles Branson came in third in his reelection race. Special prosecutor and University of Kansas law professor Suzanne Valdez, who jumped into the race in late April and raised just $11,000, won the Democratic primary, edging out Cooper Overstreet, who was backed by local chapters of the Sunrise Movement and the Democratic Socialists of America. Elsewhere in Kansas, in Wyandotte County, District Attorney Mark Dupree, elected on a reform message in 2016 was challenged by elements of the local police and former prosecutors, angry at his new approach and his work to free a man Dupree determined had been unjustly convicted. A former prosecutor challenged him with the backing of the local establishment, but Dupree, the first Black person elected to the office, fended him off

Ryan Grim, Akela Lacy, The Intercept
August 6 2020, 9:12 a.m.