What A Day - Is This Progressive Answer to Crime Working?

Episode Date: June 22, 2024

Is there a way to send fewer people to prison while lowering crime rates? This week’s How We Got Here unpacks the progressive prosecutor movement—the left’s antidote to tough on crime policies. How have progressive prosecutors fared since the movement began a few years back? How are red states responding? How does the whole debate over progressive prosecutors misunderstand the fundamentals of crime? Max and Josie hold court to figure it all out.

So, Max, if you had to guess, how many cases would you say are filed in state courts every year in America? We talking civil, criminal, both? Both. Anything and everything. Okay, let me see. Let's say 10 cases a day in each state. So, 260 work days a year, that's like 12,000 cases over the course of a year? The answer, Max, is 100 million. 100 million? There are 100 million cases filed every year.

That is wild. That's everything. That's like traffic court and it's everything. Okay. But it's an enormous number of cases, right? There's a lot that happens in state court. And of those cases that are in criminal court, the vast, vast, vast, vast, vast majority of them are handled by prosecutors. Hmm.

So over the past few years, we've seen a new kind of prosecutor emerge. They're called progressive prosecutors. And they're basically an antidote to the tough on crime prosecutors that have been pretty much ubiquitous for decades. Okay, I've heard about this progressive prosecutors. This was supposed to be part of the progressive answer on crime and public safety. That if you change a prosecutor's thing, then that will trickle out through the rest of the system and change how criminal justice works more broadly. Yes, exactly. And in the last few years, through a lot of hard work by advocacy groups and activists, a number of progressive prosecutors have been elevated to office. Okay. And has that worked? Did it accomplish

the things everybody hoped it would accomplish? So it's sort of worked. We're at an inflection point with the progressive prosecutor movement, some successes, some setbacks. But maybe more than that, this experiment and elevating a different kind of prosecutor has tested a lot of popular assumptions about crime and justice and public safety. Huh. And what have we learned from testing those assumptions? Max, we've learned so, so much. I'm Max Fisher. And I'm Josie Duffy Rice, filling in for Aaron Ryan. This is How We Got Here, a weekly series where we explore a big question behind the week's headlines and tell a story that answers that question. Our question this week, to the extent that the progressive prosecutor

movement is part of the progressive answer on crime, has it worked? Is it successful at achieving a more just and humane approach? So Josie, let's back up like a tiny bit. What is the progressive prosecutor movement? So we asked Jessica Brand, the executive director of a criminal justice reform organization called the Wren Collective, and a person that knows a lot about progressive prosecutors, how she would define the term. I think it means a few things. One is being realistic about what needs to be prosecuted to keep people safe.

Not every offense needs to be prosecuted to improve public safety. And certainly not every person needs to be sent to jail and prison in order to improve public safety. So a progressive prosecutor is actually doing that calculation as opposed to reflexively just saying, let's get the harshest punishment possible and move them through the system, which is what so many prosecutors do. I think it also means looking deeply at how racist our legal system is, right? Looking at those numbers and saying, like, what's being inputted by the police into this office is not fair or right. It's inequitable. And trying to course correct for that. And then I think the third thing is looking back at the office's mistakes and currently looking at the office's mistakes. Even progressive offices make mistakes in who they prosecute.

And so trying to undo and correct those things is something that, you know, these folks do. I would add one additional thing, which is that progressive prosecutors have usually been more willing to hold police accountable for their wrongdoing. In other words, they've been more willing to prosecute officers accused of brutality or misconduct. Okay. I mean, that all makes sense. It seems like a good approach. So where did this come from? I mean, it's pretty recent, right? Yeah. For a long time, prosecutors got relatively little scrutiny, basically none, even though incarceration rates had been steadily increasing for a good 30 years. I feel like until very recently, basically every

district attorney ran on being tough on crime, regardless of whether they were in a red state, blue state, red city, blue city. Yeah, exactly. There was a pretty standard format for anyone who wanted to be one of the 2,400 elected prosecutors in America. You would brag about wanting to put people in prison. You'd fearmonger about crime. You'd accuse your opponent of being soft on criminals. Extra points if you got the police union to endorse you. Okay, but why is that though? Like why is tough on crime the thing that prosecutors in both parties thought for so long was what voters wanted to hear? The eternal question. I think it was because prosecutors were supposed to,

quote, keep us safe and safety was associated almost exclusively with locking people up. So a good prosecutor is one that locked a lot of people up for a long time. It was very like save the good guys from the bad guys kind of, you know, binary mentality. But as mass incarceration increased and the number of people in prison shot up and up and up, it was not really sustainable. And a lot of people started to think, hey, maybe we should pay more attention to these guys who keep bragging about locking and up. It was not really sustainable. And a lot of people started to think, hey, maybe we should pay more attention to these guys who keep bragging about locking people up. Completely. Prosecutors are basically the most powerful actor in the criminal justice system, and they weren't getting any attention. And so many of the traditional old school prosecutors

were so brutal. I always think about this one clip from 2014. So a little background, Glenn Ford was a black man who'd been wrongly convicted of murder and spent 30 years on death row before being exonerated. 60 Minutes comes in and does an episode on him. And they interviewed Dale Cox, the district attorney in Caddo Parish, Louisiana, which is where Glenn Ford was prosecuted. So his is the first voice you're going to hear coming up. The system did not fail Mr. Ford. It did not. It did not. In fact, the system... How can you say that? Because he's not on death row, and that's how I can say it. Getting out of prison after 30 years is justice? Well, it's better than dying there, and it's better than being executed. I think society should be

employing the death penalty more rather than less. It sounds like you're saying that's just a risk we have to take. Yes. Wow. Just every time I hear it, I'm like, that's a crazy thing to say out loud. So coincidentally, it was this very parish that we started to see signs that voters wanted a new kind of prosecutor, because it turns out the 60 Minutes interview didn't exactly go over well. And as a result, in 2015, Caddo Parish elected James Stewart, the first black DA in that county.

Oh, so 2015. So was this the start of the progressive prosecutor wave? Stewart wasn't even like wildly progressive. He was just sort of relatively reasonable compared to Mr. Cox. But his election was the start of something. It was a sign that voters were looking for less punitive prosecutors, even in the Deep South. So it sounds like this movement was more about a groundswell from voters than it was a top-down project by like progressive reform groups. Is that right? Yeah. I mean, criminal justice reform groups had been considering this idea for years, but now it finally did have enough popular support to put progressive prosecutors on the ballot. And it was the next year, 2016, that progressive prosecutors really started to gain traction.

That was the year Kim Fox won in Chicago, and this was probably the major turning point for prosecutor elections. Back then, Chicago's prosecutor was Anita Alvarez, who was known for refusing to reconsider wrongful convictions, over-prosecuting children, giving the police a pass. All the bad things you could do, she had pretty much done. But despite being almost comically horrible,

she was sailing to re-election. But then, a few months before the primary, a video became public showing the murder of a kid named Laquan McDonald. Oh, I remember this. He was killed by a cop, right? Yeah. He was a 17-year-old unarmed black kid who was shot in the back 16 times by a police officer. And it took a year and a court order for the footage of the shooting to be released after public officials had tried hard to keep it suppressed. And Alvarez was one of those officials. She had seen the footage weeks before. She had decided not to charge the cop. And once the video was released publicly, she changed her mind and decided to prosecute him. But it was too late. And Kim Fox ended up winning that election with 72% of the vote. This was a big deal. Like, Chicago is the third

biggest county in America. It's got a pretty notorious police department. Like this felt like maybe the start of something bigger beyond just Chicago. Completely. And over the next few years, Houston, Boston, Baltimore, Philly, Orlando, St. Louis, San Francisco, L.A., Manhattan. I mean, many other places elected, quote unquote, progressive prosecutors. Now, they were definitely still a small minority of those 2,400 elected prosecutors, but because such big cities have elected progressive DAs, a significant portion of the population has a progressive prosecutor. Josie, what was it about that moment in America, the late 2010s, that made this sweeping shift possible, that brought this about?

I think I'd argue it was two things. First, there was so much video of police brutality, right? Because of cell phones. Social media. Social media, yeah. And that's the second thing, social media. So when Tamir Rice and Eric Garner and Mike Brown were all killed by police, and none of those officers were prosecuted, people across the country were outraged that outrage could spread, right? And we had video. We knew what happened. So it was a wake-up call for a lot of people that the criminal legal system was deeply flawed and that prosecutors were enabling much of its harms. Okay, so late 2010s,

America elects a wave of these new kinds of progressive prosecutors. Yeah, and of course, some of them are better than others. Yeah, I take it that the term progressive prosecutor can mean many things in practice. A side note here, Max, because this term progressive prosecutor is really not my favorite. And we're going to use it on the show because it's ubiquitous now and we want to interrogate how it's been weaponized.

But I don't like it because even the most quote unquote progressive prosecutor is putting a lot of people in prison, like a lot. And the system itself is still so regressive that that term has always felt like a misnomer to me. I guess we're really just talking about prosecutors shifting away from the idea that their job is to prosecute people. And so the more cases they win, the better, which means maximizing convictions and maximizing sentencing. And instead, these are people who are thinking of their job as what is best for the community as a whole, which does incorporate some progressive thinking, but is not necessarily a radical reimagining of how justice works because they're still prosecutors.

Yes, that is the perfect summary of what I've been saying all these years. I'm going to use that. And it really doesn't seem like this would be that controversial, right? Like doing what's best for the community seems like it would be the job. It kind of is the job.

You're supposed to do justice. And here's the thing. Progressive prosecutors have been very successful. We've seen incarceration rates drop in cities with progressive prosecutors without drastic changes in crime. So I guess the question is, why are progressive prosecutors encountering so much backlash these days? I mean, like on the one hand, I'm not shocked that Republicans would find reason to get mad about something that has the word progressive in it. But it seems like it's a wider backlash here too, right? Yeah. And it all really picked up in 2020 because three major things happened. First, there was a pandemic. Second, the George Floyd protests. And third,

the 2020 presidential election. And prosecutors were involved in all of them. Wait, what does the pandemic have to do with this? So as I'm sure you remember, the pandemic led to a significant, though brief, rise in crime. Here was coverage from NBC, PBS, and CNBC all at the same time. After hitting near historic lows pre-pandemic, crime has been spiking in many parts of the country. Since the pandemic hit two years ago, parts of the U.S. have seen violent crime rates increase. There was about a 30% increase nationally in murder from 2019 to 2020. Year on year, it was by far the largest increase ever recorded.

Okay, so if you didn't know any better, you'd think that crime had been higher than ever at this point, right? Right, and crime, of course, was still at an absolute low at this point, especially relative to prior decades. But of course, that's not really how people perceive crime, right? Yeah, exactly. It's all kind of comparative to recent history, and it relies a lot on anecdote. And anecdotes are very fertile ground for politicians, right? Whenever there's a rise in crime, you can be sure that some politician somewhere is going to exploit it. Especially in a big election year. Which is exactly what happened. In actuality, the rise in crime was due to a number of factors,

like school closures, a chaotic job market, and the sudden end of community, which together created a recipe for disaster, as Jessica put it. People were home, people were poor, people were struggling. That should have been no surprise. But Republicans basically blamed the crime rise on the left and specifically on progressive prosecutors being too, quote unquote, soft on crime. Now, let's be very clear. There's literally no evidence of this, right? Right. No evidence of a link to the kind of prosecutor. Like crime was up in red states, it was up in blue states, places with progressive prosecutors, tough on crime prosecutors.

This new kind of prosecutor was more just a convenient target. Exactly. Especially when Fox News was running salacious protest footage and perpetuated this narrative of like lawless liberals who want anarchy, right? Okay. So Josie, obviously we know that this line of attack was bullshit, but it does reflect what feels like a pretty commonly held assumption in our society, which is that when it comes to crime and safety, the job of prosecutors, the job of police, and of the state more broadly, is to punish people who commit the crimes as a means to reduce that crime and to make us all safer. Yeah, and the problem with this narrative, Max, isn't just that it draws the

wrong conclusion, it's that it starts from the wrong premises. We tend to draw a very direct connection between crime and prosecution, but the truth is that the two are not as connected as we like to think. Really? Yeah, because by the time the prosecutor's involved, the harm has already been done, right? Oh, sure. So this idea that they're preventative really misunderstands the things that drive crime. You know, sure, they may have somewhat of a deterrent effect, though that too overestimates the level of consideration that usually goes into committing a crime. Yeah, I guess if you're at the point of committing an assault or a burglary or whatever, you're probably not doing a long-term risk-reward calculation about how tough the DA is likely to get with you. Exactly. And of course, like prosecuting the president for starting an insurrection,

maybe a deterrent to future presidents. Yeah, I'm okay with that one. Yeah, that one makes sense. But on a broader level, most people in America can't even name their local prosecutor. They're not really making decisions with them in mind. And so to really prevent crime, you need front end intervention. So here's Jessica Brand again. We don't like to admit this, but prosecutors have very little control over crime, right? It's different things that cause crime. And we know it. It's housing and addiction and whether it's the summer and people are out of schools and how much money we spend on violence prevention and poverty levels, right?

Things that are not in control of district attorneys. I feel like I'm starting to understand what you mean by the term progressive prosecutor being a contradiction in terms. Like prosecutors prosecute people. They put them in jail, which is not really the mainstay of progressive thinking on how to reduce crime. The progressive answer is, you know, steady jobs, good schools, a society where people can be economically mobile. Yeah. We always talk about crime as if it's like completely impossible to know what the cause is, but we do know what causes crime, right? We do know how to prevent it. There's hard data behind that, like expanding Medicaid,

expanding child poverty tax credits, access to therapy or drug treatment, removing environmental toxins. All of these have been shown to statistically reduce crime. And none of which are things that a prosecutor controls. Right. But prosecutors have largely embraced the narrative that they prevent crime, and it's simply not true. Take San Francisco, where the former DA, Chesa Boudin, was recalled in 2022. He was one of the big, quote unquote, progressive prosecutors, right? Yeah, he was

definitely one of the mainstays. And Boudin was replaced by a more traditional tough on crime prosecutor, Brooke Jenkins. She had gone after Boudin hard, tweeting at one point that the, quote, crime rate is directly linked to his failed policies. Wow. And when Jenkins becomes DA, she charges more people. She sends less people to diversion programs. She goes very hard on drug crimes in particular. And guess what? Okay, I will guess. Crime did not, in fact, go down.

That's correct. Crime went up. Violent crime went up. Fatal overdoses went up. And funny enough, Jenkins kind of changed her tune after that, right? She said, quote, the benchmarks are going to be what the residents of San Francisco feel. So imagine that. I feel like all of this reflects a fuzziness in what we even mean when we talk about crime.

Like, are we talking about feeling safer or less safe, which is subjective? Or if we're talking about hard numbers, do we just mean violent crime? Or do we also mean stuff like petty theft? Like, it's all kind of vague. Correct. Because we think about crime as this kind of like monolith. It's like one number that moves in one direction. But crime is kind of complicated. It fluctuates street by street, neighborhood by neighborhood, and some crimes may go up while others go down. And we don't actually have a very good way of measuring crime. Which is, of course, not to say that it's hard to measure,

so it doesn't matter. But it does mean that we end up putting a lot of attention on the crimes that get reported and therefore reflected in the statistics, but not on crimes like domestic violence that are a lot less likely to be recorded, much less prosecuted. Completely. And the bottom line here is that at the basis of our understanding of crime and prosecution in the justice system more broadly, there are some real misunderstandings that are exploited when, for example, the Republican Party wants to blame percussive prosecutors for crime going up. So Josie, taking all of this into consideration, is crime going up? Well, Max, as always, it's complicated. But the short answer is no. Crime

is going down generally. In fact, way down. Last year, murders dropped 13 percent. Wow. Biggest drop in the country's history. Violent crime overall is down, as is property crime. Now, these numbers are aggregated from local law enforcement self-reporting, so take them with a grain of salt. But the trend line is pretty clear. It's kind of striking that this big drop in crime is coming at the same time as a backlash to progressive prosecutors who were supposedly soft on crime. Right. Like the San Francisco DA lost a recall. The Portland, Oregon DA, another progressive, progressive, just lost reelection last month. The progressive D.A. in a San Francisco suburb called Alameda is facing a recall. And the progressive D.A. here in Los Angeles is facing a tough runoff vote for reelection. Well, overall, they're actually doing pretty well with the electorate. Some prosecutors have had trouble, like you said. But overall, progressive prosecutors have done pretty well at the ballot. Here's Jessica again. I think it's overwhelmingly still a fairly strong movement, despite media and right-wing claims otherwise.

I mean, overwhelmingly, people are getting reelected in cities across America. More and more people are running on progressive platforms. Even when they're challenging progressive prosecutors, they're incorporating the key values into their platforms. Even when they're challenging progressive prosecutors, they're incorporating the key values into their platforms. And yeah, there have been a couple of people who have lost their seats. That's to be expected in a movement that is designed to reduce the harms of the legal system. There's going to be some backlash. It's not going to be totally linear. In Philadelphia, for example, the district attorney Larry Krasner has faced enormous pushback from the right. But voters have overwhelmingly supported him.

Here's Jessica again. Larry Krasner was in 2017. In 2021, there's a ton of money to unseat Larry Krasner. Spent by the police unions, spent by a shadow pack who never really filed all of their campaign finance reporting. So we don't know how much money was actually spent against him on the independent expenditure side. It was a time when crime was really high. It was the heart of COVID. So crime was high all over the country. He wins overwhelmingly in that. And I think that was a really important moment to say, you know, this movement is still here to stay. But the numbers are really growing in Texas,

which, you know, people don't think of as a progressive state, but Austin, Dallas, San Antonio, the presumptive DA who just won his primary against a very regressive DA in Houston will probably be taking office in January, Fort Bend County. So that's five progressives in some of the biggest cities in America. Los Angeles, George Gascon, he's up for re-election, but they swept him into the office almost four years ago on a very progressive platform. When you look at the top 10 largest cities in America, progressives have populated the DA offices and well over half of them and keep getting re-elected. If you listen to the media, not even just the right-wing media, but the media overall,

you definitely think that the progressive prosecutor movement has been a failure. But that's wrong, at least at the ballot box. People want a different kind of prosecutor. They recognize that the criminal legal system is excessive and cruel and expensive. But there are ways in which it's being challenged that really don't get a lot of media attention. Well, and these prosecutors have also faced really big pushback from police unions and conservative legislatures. Here's Jessica again. The law enforcement unions are coming for these prosecutors. You have seen it really recently against Mary Moriarty, who is the elected prosecutor, county attorney in Minneapolis and Hennepin County,

and until recently was prosecuting a police officer. And you can just look on Twitter at what the law enforcement unions say openly about her. They brought in the governor, who is a Democratic governor, to try to get him to take the case away from her because she was prosecuting a police officer. We've seen really similar behavior here in Texas, where I live, especially in Austin, where the law enforcement unions have sort of joined forces with right-wing politicians because the prosecutor in Austin indicted a lot of police officers after the George Floyd protests. And there was a lot of really serious police use of force during those protests against peaceful protesters. And they've really launched

attacks at him. And they are well resourced. They have a ton of money and they're willing to use it to say, you know, what's easy to say, like they're soft on crime. They're coming after police officers. Nobody wants to be a police officer because they just want to prosecute a cop. Of course, it's like such a small part of what these folks are doing. But they are, I think, a huge driving force behind the backlash. Then there's the alarming trend of governors taking away cases from prosecutors, which also hasn't gotten much attention. Legislatures in Texas, Florida, my state of Georgia, Tennessee, the list goes on, have given the governor or the legislature power to just remove any prosecutor

who, quote unquote, doesn't prosecute crime. So take what happened to Monique Worrell. She is the former prosecutor in Orlando. Here's Jessica again. In Orlando, when Governor DeSantis removed Monique Worrell, he was working with the Osceola and the Orlando sheriff to try to dig up dirt on her and find reasons to remove her. And at the time, she was prosecuting a police officer. And since she's been removed and there's a DeSantis appointee, that case has been dropped. So, you know, that's a huge piece of it.

And here's Monique Whirl herself on MSNBC responding to Governor DeSantis' decision to remove her, a choice he made while running for president. The governor's campaign is failing. He needed something to put him in the national spotlight. Crime is down in Orange and Osceola counties, not up. And that decrease has happened since I took office two and a half years ago. This is really alarming. Red states using this soft on crime culture war stuff to basically usurp their own justice systems and put those powers in the hands of political actors. And they're justifying it by saying that prosecutors are somehow derelict by making the very normal decision to not prosecute every single thing

that crosses their desk. Yeah, that's right. Because there isn't a prosecutor in America who prosecutes every crime, right? It's not really possible. Police make arrests and prosecutors choose which of those arrests are worth prosecuting. And that discretion is part of the job. It's always been one of the critical functions of being a prosecutor. And now we see elected officials with no background or experience in the criminal legal system deciding that they get to call the shots, right? There are prosecutors who choose not to go after crimes that they find unreasonable or unjust. For example, certain prosecutors in states that have criminalized abortion have said they're not going to prosecute people for those quote-unquote crimes. But more commonly, there's a logistical issue. Prosecutors have finite resources, and they have to decide where they want to spend them.

Plus, most of the time, like often around 95% of the time, prosecutions end in a plea. In other words, a prosecutor says, I'm going to charge you with five felonies, but you can plea down to one. The defendant gets a lesser sentence, and the prosecutor doesn't have to spend all that time prepping for trial. Exactly. So the state bills that allow the legislature to remove prosecutors that don't prosecute crime are basically a way for them to go after any prosecutor they don't like, despite the fact that these prosecutors have been elected. Here's Jessica. The attorney general of Virginia made a speech one or two years ago that said, make them famous, make them the face of crime. And it's such an easy thing to say. They're not prosecuting people, which of course is false, but they're not prosecuting people and they're causing you harm and they're dangerous.

And they can say the word Soros, whether they're Soros funding or not. And everybody goes, it's an intentional political strategy to blame them for everything and then retain power and keep people afraid. And I find it telling, Max, that legislatures only started to impede on prosecutors' discretionary power when progressive prosecutors started getting elected. During three decades of increased criminalization as prosecutors were locking up literally millions and millions of people, legislatures sat by and did nothing. It all feels really telling, like the rise of the progressive prosecutor moment was supposed to be an answer to the tough on crime politics that do not actually make us safer and that cause all of this harm to people caught up in it. And now we

have a backlash to it that is basically making explicit this desire for tough on crime policies as an end in itself. On some level, what we're debating isn't even what approach we think will make communities safest. It's whether we value being punitive and harsh for its own sake, whether or not it quote unquote works. Exactly. That's totally right. In many ways, we're kind of seeing a refreshing, if very disturbing, honesty, right, from people

who purport to care about crime. They're being straightforward. It's a political tactic. It's not really care about the harm people experience. Well, Josie, to show that these politics have always been with us, let's go out with a trailer from the 1953 movie Crime Wave, the plot of which appears to be two hours of tough on crime fear mongering. Fun. Oh, boy. Killers loose, ready to kill again, dragging innocent lives with them in a reckless pattern of flight as they try to hide in a city stripped naked where there is no escape. Jesus Christ.

The wheels of the law's machinery grind hard and the long arms of the department stretch out. Crime wave. Girdling the city, drawing the steel net tighter and tighter. Where's the money, Lacey? I don't know. Come on, what did you do with it? I told you I didn't touch his money. How do you know Morgan had any money on him?

You stay on your side of the fence. I'm looking for a cop killer. This movie actually just got elected lieutenant governor in Arkansas. Oh, man. How We Got Here is written and hosted by me, Max Fisher, and Aaron Ryan. Our producer is Emma Illick-Frank. Evan Sutton mixes and masters the show. Jordan Cantor sound engineers the show.

Audio support from Kyle Seglin, Charlotte Landis, and Vassilis Fotopoulos. Production support from Leo Duran, Raven Yamamoto, Natalie Bettendorf, and Adrian Hill. And a special thanks to Wattaday's wonderful hosts, Travelle Anderson, Priyanka Arabindi, Josie Duffy Rice, and Juanita Tolliver for welcoming us to the family. Thank you.