The American Civil Liberties Union, backed by millions in funding from billionaire Democratic donor George Soros, is investing resources and applying organizational muscle in local district attorney races in 2018.
The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014.
Now, in this year’s elections, the organization is planning voter education and outreach campaigns in district attorney races in California, Florida, Maine, Massachusetts, Minnesota, Oklahoma, Oregon, Vermont and possibly North Carolina and Missouri.
The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice. More than 1,000 local prosecutors are up for election in November, according to the group.
“We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse,” Pendergrass said. “The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”
The ACLU doesn’t endorse political candidates. Instead, it said the objective is to raise awareness about criminal justice issues of concern to the organization, its members and the voting public.
But Soros-funded super PACs and advocacy groups have helped elect a growing number of progressive district attorneys who now serve metro areas such as Chicago, Denver, Houston, Philadelphia and Orlando. And it’s looking to add more in 2018.
The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas. A former state district judge, Frizell has called for special prosecutors to investigate shootings by police. She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court.
An African American, Frizell reflects a new wave of ethnically diverse, activist district attorney candidates, many of whom support policies such as diversion programs for minor drug offenders, reentry programs for people leaving prison and reducing disparities that disproportionately impact poor and minority defendants in the courts.
With great discretion about whether to charge and how severely to punish defendants, district attorneys hold immense power over the way justice is dispensed, advocates for similar reforms agree.
But local, down-ballot races typically generate little public attention and most DAs end up running unopposed, said Rashad Robinson, spokesman for Color of Change PAC. In Dallas and other cities, Robinson’s group will use peer-to-peer phone messaging with registered black voters “to persuade people about who they should be voting for.”
“Once we describe what the DA does, people instantly get how powerful they are,” Robinson said.
These and other groups want to end “zero tolerance” and “tough-on–crime” approaches which, they argue, have increased incarceration rates for mainly non-violent, minority offenders at a time when crime rates have been declining.
“Electing prosecutors who are, perhaps, less punitive and more willing to take a more sophisticated (approach) on what works can be a very positive step forward,” said John Pfaff, a law professor at Fordham University.
These efforts, however, run counter to the Trump administration’s harder approach on crime. In May 2017, Attorney General Jeff Sessions issued a memorandum to federal prosecutors directing them to “charge and pursue the most serious, readily provable offense,” when charging defendants. The Sessions memo reversed a 2013 directive by former Attorney General Eric Holder to avoid mandatory minimum prison sentences for minor drug offenders.
Leonard Noisette, director of the Justice Team for U.S. Programs at Open Society Foundations, said the Sessions memo was a return to outdated policies, like “three strikes, you’re out” that rely solely on the deterrent effect of long prison sentences.
“I think there’s a general consensus that the country has gone too far in terms of its use of incarceration,” Noisette said.
The U.S. has the highest incarceration rate in the world, Pfaff said.
Republican lawmakers and conservative donors, including the Charles Koch Institute, have also embraced criminal justice reforms, like decriminalizing some offenses and reducing sentences for low-level and non-violent offenders. Doing so, conservatives say, would help shrink swollen prison populations that increasingly drain state coffers
Evangelical Christian leaders are also calling for alternatives to incarceration, such as drug courts and mental health courts, and the elimination of mandatory minimum sentences to help keep people out of prison.
As the seemingly unlikely alliance of conservatives and progressives push harder for changes, law enforcement officials, anti-crime groups and the bail bond industry are pushing back, warning that weakening the nation’s approach to crime will put public safety at risk.
James Pasco, Jr., executive director of the National Fraternal Order of Police, doesn’t buy the “underlying premise” that many people are unjustly incarcerated or are serving inordinately long sentences, saying the evidence isn’t there.
And he criticized “well-funded” efforts to enact changes that would lighten sentences or put more accused criminals on the street.
“George Soros and the Kochs don’t have to worry about criminals on the street,” Pasco said. “They’ve got security guards and live in secure areas. It isn’t going to make any difference to them if more violent criminals are on the street. But it’s going to make a tremendous difference to those people, who by circumstance or accident of birth, find themselves living in high-crime, poverty-stricken areas without the wherewithal to protect themselves.”
Pasco said lawmakers’ concerns about the costs of nation’s large prison population are misguided.
"Some things are worth doing whatever the cost,” Pasco said. “And one of them is to protect the citizens that elect them.”
“Seeing some of the stronger evangelical voices start arguing for prison reform could be, certainly, one of the more under discussed trends right now,” said Pfaff, who’s an expert in the criminal justice system.
In Texas, where the state Senate passed a bill in 2017 to keep low-level offenders out of jail if they couldn’t afford their cash bail, the Texas Alliance for Safe Communities was formed last month to slow criminal justice reform efforts in the Lone Star state.
“We want to be completely cautious before overhauling the system and completely allowing dangerous criminals on the street,” said Mark Miner, spokesman for the alliance, a non-profit advocacy group. “Our sole purpose is to keep violent criminals behind bars and out of our neighborhoods.”
The Texas proposal, which was sponsored by a Democrat in the state Senate and a Republican in the state House, died in the state’s lower chamber. But similar proposals are cropping up in other states.
In Georgia, Republican Gov. Nathan Deal, has proposed that judges consider a defendant’s ability to pay when setting bail. It was the latest in a series of judicial reforms enacted under Deal that have helped shrink Georgia’s inmate population.
“As a result of our efforts, fewer Georgians were committed to prison last year than any time in the past 15 years, thereby saving millions of taxpayer dollars and keeping families and communities intact,” said a recent statement from Deal.
But in an email to the Georgia Sheriff’s Association, Putnam County Sheriff Howard Sills wrote that Deal “has done more for those who perpetrate crime than Lucifer and his demons combined, and every piece of his criminal justice reform that has been passed into law has complicated or burdened our duties and/or endangered the citizenry of our state.”
In the U.S. Senate, the bipartisan Sentencing Reform and Corrections Act has likewise drawn the ire of law enforcement.
The bill would apply mandatory minimum sentences only to violent crimes and serious drug offenses, give judges greater discretion in sentencing non-violent offenders and allow retroactive sentencing reductions in some past drug cases.
The bill is supported by a diverse group of organizations, including FreedomWorks, the American Conservative Union, the ACLU, the NAACP and the American Bar Association.
Pasco said the provision of the bill allowing judges to impose sentencing reductions is troubling.
"We have no problem reviewing specific cases where evidence shows a person may be innocent. Or if sentences are disproportionately long, we're more than willing to engage in review. But this idea of wholesale release on the premise that they’ve all been there long enough is dangerous nonsense," Pasco said.
Tony Pugh: 202-383-6013, @TonyPughDC
Update: The headline has been changed to more accurately reflect the content of the article.