In the last few decades politicians have spoken only two words on criminal justice issues: law and order. With memories of George H.W. Bush’s Willie Horton ads dancing in their heads, elected officials on the national and local levels have believed that there is no downside to putting people behind bars or to supporting the police no matter what the police do. The public will punish you if you let a criminal walk free, but if you imprison an innocent person there is virtually no public backlash. Lock them all up, and breathe easy.
This week we saw what might be the first signs that voters are no longer willing to cosign the logic of the gulag.
In Ohio’s Cuyahoga County, prosecutor Tim McGinty lost in a surprise upset to Democratic primary challenger Mike O'Malley after a seemingly sleepy race. McGinty declined to charge officer Timothy Loehmann, who shot 12-year-old Tamir Rice
At the same time in Illinois’ Cook County Democratic primary for state’s attorney, two-term incumbent Anita Alvarez was routed by challenger Kim Foxx 58 percent to 29 percent. Alvarez had access to dash-cam footage showing police officer Jason Van Dyke shooting 17-year-old Laquan McDonald 16 times. She refused to prosecute for a year. She only pressed homicide charges when a court ordered the video to be released.
Together the two cases send a powerful message to prosecutors: siding with the police against black victims of police violence can have electoral consequences. The Ohio result, which caught most observers flat-footed, shows that the progress of Black Lives Matter and greater awareness of police violence has moved public opinion enough to endanger incumbents in apparently safe races.
The campaign in Chicago should be instructive for prosecutors. Alvarez’s law and order stance made her many, many enemies. Cook County board president Toni Preckwinkle had been trying to reduce the county jail population, but Alvarez insisted on continuing to put high bonds on petty offenders whose cases were dismissed as soon as they saw a judge. This was part of the reason that Preckwinkle backed Foxx, her former chief of staff, when Foxx decided to run. Preckwinkle’s pull helped to keep the Democratic Party from endorsing Alvarez. She also probably helped Foxx rack up important endorsements from high-profile Democrats such as Sen. Dick Durbin.
Alvarez also had a long record of refusing to prosecute police. In 2012 officer Dante Servin fired over his shoulder into a crowd, killing a young African-American woman, Rekia Boyd. Alvarez undercharged Servin—many allege deliberately—and his case was thrown out of court.
The McDonald case energized activists who launched an inventive campaign of protest that included the #ByeAnita hashtag, street protests and an airplane with a banner denouncing Alvarez that flew over the city on election day.
The campaign against Alvarez was stunningly effective. Not only did Foxx win by almost 30 points, but there were 449,731 ballots cast in the state’s attorney election. That’s almost as many as the 449,777 cast in the presidential contest. #ByeAnita, Preckwinkle and the McDonald tape turned a minor down-ballot primary into a race on par with a national presidential contest.
The news that activists can transform a D.A. race in this way has huge implications for criminal justice reform, says Ben L.W. Trachtenberg, a professor at the University of Missouri School of Law. “Prosecutors are some of the most powerful and important public officials in any jurisdiction,” Trachtenberg told Playboy.com. “These folks have tremendous ability to affect people’s lives, often for the better, often for the worse,” he said.
But most people, he pointed out, don’t pay attention to down-ballot races. Elections for prosecutor often occur in what are effectively one-party jurisdictions. Decisions are made in primaries rather than in the general election.
Because the elections are so small-scale, a little effort in these races can be effective. A strong activist push can go a long way towards changing criminal justice priorities regarding imprisonment and police impunity. It is much easier to defeat a prosecutor than it is to change the majority in a state legislature. And, given the numbers, changing prosecutorial incentives can have a bigger effect on decarceration than any plan put forward by Hillary Clinton or Bernie Sanders. There are only 216,000 people in federal prison. That’s less than the 720,000 in local jails and 1.36 million in state facilities.
Black Lives Matter organizers are well aware of the potential. Johnetta Elzie, one of the most visible Ferguson activists, was thrilled at Alvarez’s defeat and at what that meant for the future.
“This was definitely a victory for the movement,” she told me. “I feel like we all know that.” She added, “I know I was longingly looking for Bob McCulloch’s name on Tuesday when I was going to vote” in the Missouri elections. McCulloch is the prosecuting attorney for St. Louis County who did not bring charges against Darren Wilson in the shooting death of Michael Brown. “I am definitely looking forward to being a part of helping to vote him out of St. Louis County,” Elzie said. “And I know a lot of people in Ferguson and St. Louis County are interested in that.” McCulloch has been in office since 1994, and he has generally run unopposed. He is unlikely to have that luxury in 2018.
The goal of campaigning against bad prosecutors is, first of all, to elect people into office who are more sympathetic to the goals of justice reform. Kim Foxx will certainly work with Preckwinkle on reducing jail populations, and she’s promised to appoint independent prosecutors in police shooting cases to avoid conflicts of interest. Alvarez acted as if she was accountable first of all to the police. Foxx, clearly, sees herself being accountable to people in the community, even when they come in conflict with the police. That’s a huge change.
Defeating high-profile prosecutors isn’t just about electing one or two Kim Foxxes though. It sends a message to a nation of Alvarezes. Prosecutors in the past have been paranoid about being seen as too soft on crime. Defeating Alvarez lets them know that they need to be concerned with police abuse of power as well. Alvarez, McGinty, and one day hopefully McCulloch, too, are a warning to district attorneys and state prosecutors everywhere. Act like black lives matter, or you’re going to be out of a job.
Noah Berlatsky edits the comics and culture site the Hooded Utilitarian and is the author of Wonder Woman: Bondage and Feminism in the Marston/Peter Comics 1941-1948.
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