WEBVTT - Republican Lawmakers Try to Oust 'Woke' Prosecutors

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<v Speaker 1>This is Bloomberg Law with June Brosso from Bloomberg Radio.

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<v Speaker 1>Enough is enough. It's about being the first African American

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<v Speaker 1>prosecutor in the city of Saint Louis. Running on a

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<v Speaker 1>platform about bringing criminal justice reform, bringing equality to the

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<v Speaker 1>criminal justice system, and being stopped at at all costs.

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<v Speaker 2>Kim Gardner was elected to be the first black prosecutor

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<v Speaker 2>in the city of Saint Louis, Missouri, in twenty sixteen.

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<v Speaker 2>She ran as a progressive, promising to reform the criminal

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<v Speaker 2>justice system and review wrongful convictions, and was re elected

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<v Speaker 2>by an overwhelming majority in twenty twenty. But this week

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<v Speaker 2>Gardner resigned following threats from the Missouri state legislature to

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<v Speaker 2>pass a bill stripping her office of power. The conflict

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<v Speaker 2>in Missouri is just one part of the widening power

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<v Speaker 2>struggle between Republican state lawmakers and elected Democratic local prosecutors. Florida, Georgia, Iowa,

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<v Speaker 2>and Mississippi have already passed laws curtailing local prosecutors, while

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<v Speaker 2>bills are pending in Missouri and Texas. Joining me is

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<v Speaker 2>Carissa burn Hessick, director of the Prosecutors and Politics Project

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<v Speaker 2>at the University of North Carolina, School of Law tell

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<v Speaker 2>us about this trend. If it's a trend of laws

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<v Speaker 2>to oust local prosecutors.

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<v Speaker 3>Sure, so, I think when we look at the states

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<v Speaker 3>that have introduced legislation to remove local prosecutors from office,

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<v Speaker 3>I think that we should think about that legislation as

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<v Speaker 3>being one type of legislation that we are seeing right now,

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<v Speaker 3>and that the broader category of legislation that we're seeing

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<v Speaker 3>is legislation to limit the powers of local prosecutors. Removal

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<v Speaker 3>is one way to live with their power. It's probably

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<v Speaker 3>the most extreme way. But we've seen other legislation to

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<v Speaker 3>do things like take certain cases away from local prosecutors

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<v Speaker 3>if they won't prosecute them, or allow other offices to

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<v Speaker 3>step in and prosecute particular cases that a local prosecutor

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<v Speaker 3>is declining to bring. And then I think we've also

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<v Speaker 3>seen legislation that's just saying, maybe this area shouldn't be

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<v Speaker 3>able to elect their prosecutor. The most high profile example

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<v Speaker 3>of that is what we saw in Mississippi, where they're

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<v Speaker 3>carving out some pieces of the city of Jackson's have

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<v Speaker 3>not just an appointed prosecutor rather than elected prosecutor, but

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<v Speaker 3>also appointed.

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<v Speaker 2>Judges and the NAACP has filed a suit against that law,

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<v Speaker 2>which empowered the White Attorney General to give two prosecuting

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<v Speaker 2>attorneys authority over part of the city of Jackson. We're

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<v Speaker 2>about eighty three percent of the residents are black. You know.

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<v Speaker 2>I first heard about this struggle between Republican state lawmakers

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<v Speaker 2>and democratic local prosecutors in reference to prosecutors who refuse

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<v Speaker 2>or said they would not let prosecute abortion law violations.

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<v Speaker 2>But is this broader? Is this about progressive prosecutors in general?

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<v Speaker 3>I think that's right. So we have prosecutors in office

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<v Speaker 3>who are using some tools that all prosecutors have. Right,

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<v Speaker 3>the power not to prosecute is a power that all

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<v Speaker 3>prosecutors have, and they exercise it quite frequently, but they

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<v Speaker 3>usually sort of the typical prosecutor exercises that power without

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<v Speaker 3>really talking about it very much in the news, and

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<v Speaker 3>certainly without saying I'm not going to prosecute this category

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<v Speaker 3>of cases, even if that's what they do. And I

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<v Speaker 3>think that some people, maybe a lot of people don't

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<v Speaker 3>really know that prosecutors have this power or that they

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<v Speaker 3>exercise this power pretty often. And the prosecutors that have

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<v Speaker 3>been running on platforms with criminal justice reform or running

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<v Speaker 3>under the banner of progressive prosecution. They've gotten a lot

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<v Speaker 3>of attention, and some of that attention has been negative.

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<v Speaker 3>And I think we've probably reached the point now politically

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<v Speaker 3>where it's politically advantageous for some people to run against

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<v Speaker 3>these progressive or reform prosecutors, to say that they disagree

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<v Speaker 3>with what they're doing, to say that, you know, they're

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<v Speaker 3>misusing their power, or they're causing spikes in crime, or

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<v Speaker 3>you know, one of any number of arguments that what

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<v Speaker 3>they're doing is bad. And we see state official or

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<v Speaker 3>officials that aren't the prosecutor running about this in campaigns

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<v Speaker 3>and saying that what these particular prosecutors are doing is wrong.

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<v Speaker 3>And I think that legislatures taking action introducing these sorts

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<v Speaker 3>of bills, it's one piece of that, you know, sort

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<v Speaker 3>of political backlash against these prosecutors.

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<v Speaker 2>Yeah, a lot of the lawmakers say, well, this is

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<v Speaker 2>about public safety, but it seems like it's all about

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<v Speaker 2>politics because Republicans control the legislature and and the governorship

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<v Speaker 2>in the seven states where proposals curtailing local prosecutors gained

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<v Speaker 2>some traction this year, and the aim seems to be

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<v Speaker 2>to take away power from local prosecutors who are in

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<v Speaker 2>strongly progressive or liberal democratic cities.

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<v Speaker 3>I mean it can be both, right, It can both

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<v Speaker 3>be that these state officials are taking actions because they

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<v Speaker 3>perceive these policies to be undermining public spacies. And they

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<v Speaker 3>could also be taking these actions because it's politically advantageous

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<v Speaker 3>for them to attack local officials who are of the

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<v Speaker 3>opposite political party for them. I don't think we need

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<v Speaker 3>to think of those two things as being mutually exclusive.

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<v Speaker 3>I think they are related to each other, and I

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<v Speaker 3>think both of them are probably true.

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<v Speaker 2>Doesn't this just disenfranchise the voters who elected these prosecutors

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<v Speaker 2>for reasons that they campaigned on.

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<v Speaker 3>Yes, But I think that you can make that argument

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<v Speaker 3>any time that you have one life layer of government

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<v Speaker 3>disagreeing with the other layer of government. So like every

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<v Speaker 3>time Congress passes the law telling the states that they

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<v Speaker 3>have to do something, is that Congress disenfranchising the people

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<v Speaker 3>in that state? Or do we just say sometimes Congress

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<v Speaker 3>gets to act even if the people in one state

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<v Speaker 3>wouldn't agree with it. It's the same thing. It's just

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<v Speaker 3>playing out on the state versus local level. Right, Local

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<v Speaker 3>governments sometimes get to set their own policies about what

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<v Speaker 3>to do, and sometimes the state gets to step in.

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<v Speaker 2>So in Georgia, which passed a law and the governor

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<v Speaker 2>signed it, the Fulton County district attorney Fanny Willis claims

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<v Speaker 2>it's a racist attack after voters elected fourteen non white

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<v Speaker 2>district attorneys in Georgia in twenty twenty. Is that the

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<v Speaker 2>only charge you've heard about racism? Or have you heard

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<v Speaker 2>that charge in other instances as well?

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<v Speaker 3>Yeah, I mean, I certainly think that the issue of

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<v Speaker 3>race is very visible in all of these actions, because,

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<v Speaker 3>as you pointed out, the states where this legislation seems

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<v Speaker 3>to be getting tractions are states where you have the

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<v Speaker 3>state level government controlled by Republicans, and they are pushing

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<v Speaker 3>back against the actions or the decisions and policies of

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<v Speaker 3>democratic das that have been elected in the big cities.

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<v Speaker 3>Not always the big cities, but folks of the Democratic

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<v Speaker 3>Party who's been elected. Now, it just so happens that

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<v Speaker 3>Democratic candidates tend to do better oftentimes in areas that

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<v Speaker 3>have high percentages of voters of color. So if you

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<v Speaker 3>have Republican state officials pushing back against areas where they

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<v Speaker 3>have elected Democratic officials, yeah, I mean, it's just demographically

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<v Speaker 3>that is going to be probably a majority white states,

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<v Speaker 3>displacing the decisions that were made by voters of color.

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<v Speaker 2>You've called this movement of getting progressive prosecutors almost a

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<v Speaker 2>national brand. Explain what you mean by that.

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<v Speaker 3>So America's kind of complicated, and that we really just

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<v Speaker 3>have two major political parties. Right, we have the Republicans

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<v Speaker 3>and we have the Democrats. And that's fine if all

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<v Speaker 3>you want to talk about is the presidential elections, and

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<v Speaker 3>I would say the presidential election in November, right, the

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<v Speaker 3>general election, because those are the two major choices that

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<v Speaker 3>people will have in the ballot, and they're just choosing

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<v Speaker 3>between Republicans and Democrats, and those are brands those political parties.

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<v Speaker 3>You know, voters, potential voters have impressions about what those

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<v Speaker 3>two parties stand for. So even if they don't know

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<v Speaker 3>that much about a particular candidate for national office, they

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<v Speaker 3>can rely on their overall impressions of the Republican or

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<v Speaker 3>the Democratic Party when they're voting for senator, or when

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<v Speaker 3>they're voting for Congress, or when they're voting for the president.

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<v Speaker 3>Those national brands of Republican and Democrats don't work very

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<v Speaker 3>well when we're talking about elections for local prosecutors, and

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<v Speaker 3>they don't work very well for two reasons. First of all,

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<v Speaker 3>some states these are non partisan offices, so you don't

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<v Speaker 3>have a party label to rely on. So that's true

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<v Speaker 3>in California and a handful of other states these are

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<v Speaker 3>non partisan offices. Another reason that these national party brands

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<v Speaker 3>don't work very well is a lot of times these

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<v Speaker 3>elections are decided in the primary. Like where I live

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<v Speaker 3>in North Carolina. I live in a very blue part

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<v Speaker 3>of the state. We just had a prosecutor election. No

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<v Speaker 3>Republican ran in the general election. The election was fought

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<v Speaker 3>in the Democratic primary between two Democrats. So the party

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<v Speaker 3>label isn't helping people make decisions in these elections. The

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<v Speaker 3>party labels also aren't helping because on the national level,

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<v Speaker 3>crime isn't as big of an issue as other things

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<v Speaker 3>like abortion or gun rights, or taxes or spending programs. Right,

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<v Speaker 3>national elections are about loss and loss of issues, and

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<v Speaker 3>DA elections are about stuff that's much more specific. Right,

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<v Speaker 3>how often are you going to use version? When are

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<v Speaker 3>you going to ask for cash bail in a particular case,

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<v Speaker 3>which crimes are you going to prioritize and which ones

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<v Speaker 3>are you going to maybe not prosecute at all. The

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<v Speaker 3>national political parties aren't associated with policies for these things

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<v Speaker 3>because they're too specific. So the progressive prosecutor movement it

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<v Speaker 3>sort of filled this way. People could identify as reform prosecutors.

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<v Speaker 3>I think some of them who did weren't even necessarily

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<v Speaker 3>running as Democrats. But even in states like California, people

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<v Speaker 3>were able to run on this national brand, right, this

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<v Speaker 3>idea of being a progressive prosecutor, and that brand signaled

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<v Speaker 3>something to their voters. So the voters didn't have to

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<v Speaker 3>like sit down and comb through election websites or like

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<v Speaker 3>read lots and lots of news stories about debates between

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<v Speaker 3>the candidates. They could rely on the label progressive prosecutor

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<v Speaker 3>the same way that they rely on labels like Democrat

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<v Speaker 3>or Republicans.

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<v Speaker 2>Has that sort of movement led to this backlash, you know,

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<v Speaker 2>to stop so called woke prosecutors.

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<v Speaker 3>I think that the brand brought these issues to everyone's attention,

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<v Speaker 3>and as the prosecutors started getting more attention, then they

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<v Speaker 3>became an attractive target for, you know, sort of their

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<v Speaker 3>political opponents. But I don't think that we can ignore

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<v Speaker 3>the fact that it's not just that it was politically

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<v Speaker 3>advantageous for you know, Republican lawmakers in Georgia or Mississippi

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<v Speaker 3>or elsewhere to introduce this legislation. I think they also

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<v Speaker 3>probably didn't pay much attention to what local prosecutors were

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<v Speaker 3>doing beforehand, and by making clear what their office was doing,

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<v Speaker 3>these prosecutors provided an opening for people to say, no,

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<v Speaker 3>you shouldn't do that. Like traditional prosecutors, they play things

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<v Speaker 3>very close to the vest. They rarely tell people what

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<v Speaker 3>their policies are and how they make their decisions. I'm

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<v Speaker 3>part of a research initiative at the University of North

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<v Speaker 3>Carolina called the Prosecutors and Politics Projects, and we just

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<v Speaker 3>conducted a survey of prosecutors in four different states, states

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<v Speaker 3>where marijuana possession is still illegal, and we asked incumbent prosecutors,

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<v Speaker 3>so fitting prosecutors about their policies, and we found that

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<v Speaker 3>there were lots and lots of different policies ranging from

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<v Speaker 3>full enforcement, we enforce every single case that comes to

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<v Speaker 3>the door, to we have a policy of prosecuting none

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<v Speaker 3>of these cases, and then lots of stuff in between.

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<v Speaker 3>We also asked them whether they had publicly announced what

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<v Speaker 3>their policies were, and only twenty percent of the people

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<v Speaker 3>who responded to our surveys said that they had publicly

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<v Speaker 3>announced their policies. They had policies, they just weren't saying

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<v Speaker 3>what those policies were. So if you weren't saying what

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<v Speaker 3>you do and how you use your power, it's pretty

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<v Speaker 3>hard for people to criticize you. But if you tell

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<v Speaker 3>people here's the policy we have and here are the

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<v Speaker 3>decisions that we're making, it's very easy for people to

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<v Speaker 3>disagree with you. Now, are there reasons that we should

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<v Speaker 3>want these prosecutors to tell us what their policies are?

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<v Speaker 3>Of course, it's an elected office. How are we supposed

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<v Speaker 3>to know who to vote for if we don't know

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<v Speaker 3>what they're doing. But I think this backlash that we're

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<v Speaker 3>seeing in the states is probably a huge reason why

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<v Speaker 3>prosecutors don't say what they're doing. They don't want to

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<v Speaker 3>open themselves up to criticism, and they don't want to

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<v Speaker 3>open themselves up to the sort of legislative pushback and

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<v Speaker 3>potential loss of power that we're seeing in some of

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<v Speaker 3>these states.

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<v Speaker 2>Actually, in Manhattan, where I live, the current DA Alvin Bragg,

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<v Speaker 2>there was a backlash when he first got into office

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<v Speaker 2>and a memo was leaked where he said he wasn't

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<v Speaker 2>going to prosecute certain crimes, and then he sort of

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<v Speaker 2>took it back. But that's sort of an example of

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<v Speaker 2>not wanting the public to know, but the public finding

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<v Speaker 2>out anyway.

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<v Speaker 3>That's right. And I'll just add here, I think part

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<v Speaker 3>of what's going on is sometimes a reform oriented prosecutor

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<v Speaker 3>gets elected, but all of the people who are already

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<v Speaker 3>working in that office don't necessarily agree with them, and

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<v Speaker 3>that's a whole different set of problems.

0:14:03.840 --> 0:14:08.200
<v Speaker 2>Could these laws, some of these laws face hurdles. A

0:14:08.240 --> 0:14:11.240
<v Speaker 2>New York court struck down a twenty eighteen commission that

0:14:11.360 --> 0:14:15.520
<v Speaker 2>was supposed to investigate prosecutorial conduct. The laws are new,

0:14:15.600 --> 0:14:17.960
<v Speaker 2>and I'm wondering if they're going to face challenges in

0:14:18.040 --> 0:14:22.119
<v Speaker 2>the courts and perhaps not survive definitely.

0:14:22.320 --> 0:14:24.560
<v Speaker 3>And I'll say, though, this is where things start to

0:14:24.600 --> 0:14:28.240
<v Speaker 3>get complicated, because even though I think that we are

0:14:28.320 --> 0:14:31.720
<v Speaker 3>seeing a national brand of progressive prosecutors, and I think

0:14:31.760 --> 0:14:35.160
<v Speaker 3>that we are seeing a trend across the country of

0:14:35.280 --> 0:14:40.360
<v Speaker 3>conservative lawmakers pushing back against these prosecutors, it's all happening

0:14:40.480 --> 0:14:44.920
<v Speaker 3>in the context of fifty different states. And it's not

0:14:45.360 --> 0:14:50.359
<v Speaker 3>just that the state legislatures are adopting different types of legislation.

0:14:50.960 --> 0:14:55.520
<v Speaker 3>They're also adopting that legislation in systems that are governed

0:14:55.600 --> 0:15:00.760
<v Speaker 3>by different state constitutions. So the litigation that you mentioned

0:15:00.960 --> 0:15:04.080
<v Speaker 3>in New York about this sort of oversight board, it

0:15:04.120 --> 0:15:07.680
<v Speaker 3>was struck down because in New York, discipline of lawyers

0:15:07.720 --> 0:15:11.400
<v Speaker 3>is supposed to be accomplished through the judicial branch, and

0:15:11.720 --> 0:15:15.000
<v Speaker 3>the particular advisory board that was being set up wasn't

0:15:15.040 --> 0:15:18.080
<v Speaker 3>located within the judiciary. So it was a separation of

0:15:18.120 --> 0:15:22.200
<v Speaker 3>powers argument under the state constitution. The state constitutions look

0:15:22.360 --> 0:15:26.600
<v Speaker 3>really different. So Texas, for example, has a very robust

0:15:26.800 --> 0:15:31.320
<v Speaker 3>separation of powers sort of law under its constitution, whereas

0:15:31.360 --> 0:15:35.479
<v Speaker 3>things look different in some other states. Even prosecutors themselves.

0:15:35.560 --> 0:15:38.200
<v Speaker 3>I've been looking into this with a co author. We're

0:15:38.240 --> 0:15:42.240
<v Speaker 3>working on a paper about how to think about you know,

0:15:42.360 --> 0:15:46.640
<v Speaker 3>local prosecutors and this state pushback. And in some states,

0:15:46.720 --> 0:15:51.040
<v Speaker 3>you know, prosecutors are considered executive officials, in other states

0:15:51.080 --> 0:15:56.040
<v Speaker 3>they're classified as judicial officials. In some states they derive

0:15:56.160 --> 0:15:59.880
<v Speaker 3>their power from the state constitution. In other places there

0:16:00.200 --> 0:16:04.240
<v Speaker 3>just created by statutes. So all of those things will

0:16:04.400 --> 0:16:08.680
<v Speaker 3>end up mattering as these laws end up getting challenged

0:16:08.760 --> 0:16:11.920
<v Speaker 3>in the court, so we might see, you know, the

0:16:12.040 --> 0:16:16.440
<v Speaker 3>legislation be upheld in Florida and then a very similar

0:16:16.440 --> 0:16:19.239
<v Speaker 3>piece of legislation get struck down in Texas.

0:16:19.560 --> 0:16:23.240
<v Speaker 2>In Florida, the Eleventh Circuit heard arguments last week of

0:16:23.320 --> 0:16:28.880
<v Speaker 2>our Governor Ron DeSantis suspending a state attorney for signing

0:16:28.960 --> 0:16:32.840
<v Speaker 2>onto abortion and gender affirming care statements. Are there other

0:16:32.920 --> 0:16:37.960
<v Speaker 2>instances where governors have tried to remove local prosecutors, So

0:16:38.360 --> 0:16:39.440
<v Speaker 2>I don't.

0:16:39.120 --> 0:16:43.080
<v Speaker 3>Know about any other governors who have taken action, although

0:16:43.080 --> 0:16:46.240
<v Speaker 3>I will note that somebody asked the governor in New

0:16:46.320 --> 0:16:49.400
<v Speaker 3>York whether she had any plans to do anything with

0:16:49.480 --> 0:16:53.120
<v Speaker 3>Alvin Bragg in Manhattan, and she didn't say no. Let's

0:16:53.120 --> 0:16:57.040
<v Speaker 3>put it that way. How prosecutors can be removed from

0:16:57.080 --> 0:17:01.240
<v Speaker 3>office is also different in all of the different states.

0:17:01.240 --> 0:17:05.000
<v Speaker 3>They have different procedural mechanisms. In some states, like in

0:17:05.040 --> 0:17:08.240
<v Speaker 3>North Carolina, for example, where I live, people can file

0:17:08.520 --> 0:17:11.840
<v Speaker 3>a petition with the court to get someone removed. We

0:17:11.920 --> 0:17:14.440
<v Speaker 3>had a prosecutor who was removed a few years ago,

0:17:14.640 --> 0:17:17.840
<v Speaker 3>not because he ran on some platform of reform, but because,

0:17:17.920 --> 0:17:21.480
<v Speaker 3>come to find out, he wasn't really investigating a bunch

0:17:21.520 --> 0:17:23.640
<v Speaker 3>of cases that had been brought to his office, and

0:17:24.040 --> 0:17:26.679
<v Speaker 3>there were other problems as well. But different states have

0:17:26.720 --> 0:17:30.680
<v Speaker 3>different mechanisms. You know, Larry Krassner is a very outspoken

0:17:30.880 --> 0:17:36.240
<v Speaker 3>progressive prosecutor in Philadelphia. He was impeached by the Pennsylvania

0:17:36.480 --> 0:17:40.400
<v Speaker 3>Pulsive representatives and that's all been tied up in litigation.

0:17:40.920 --> 0:17:43.439
<v Speaker 3>It hasn't proceeded to a trial in their state Senate

0:17:43.520 --> 0:17:46.760
<v Speaker 3>for various reasons when it's being litigated, So it's complicated.

0:17:46.960 --> 0:17:49.720
<v Speaker 3>I'm glad that people are talking about local prosecutors. They're

0:17:49.720 --> 0:17:53.199
<v Speaker 3>an incredibly important piece of the criminal justice system. But

0:17:53.280 --> 0:17:56.920
<v Speaker 3>it's difficult for us to have national conversations about these

0:17:56.960 --> 0:17:59.720
<v Speaker 3>things because at the end of the day, so many

0:17:59.800 --> 0:18:03.399
<v Speaker 3>things are going to turn on very sort of specific

0:18:03.640 --> 0:18:07.600
<v Speaker 3>technical state law issues, and I mean, hey, you know,

0:18:07.760 --> 0:18:11.000
<v Speaker 3>it's hard enough to talk about those issues once, trying

0:18:11.040 --> 0:18:13.360
<v Speaker 3>to talk about them half a dozen times to explain

0:18:13.400 --> 0:18:15.400
<v Speaker 3>why things are different in different states. I think there's

0:18:15.520 --> 0:18:17.640
<v Speaker 3>you know, it's so much that the American public can bear.

0:18:18.560 --> 0:18:21.080
<v Speaker 2>I do think my listeners can bear it, though, Thanks

0:18:21.080 --> 0:18:24.240
<v Speaker 2>so much. Carissa. That's Carissa Burne Hessig, director of the

0:18:24.280 --> 0:18:27.840
<v Speaker 2>Prosecutors and Politics Project at the University of North Carolina

0:18:27.920 --> 0:18:30.359
<v Speaker 2>School of Law. And that's it for this edition of

0:18:30.359 --> 0:18:33.040
<v Speaker 2>The Bloomberg Law Show. Remember you can always get the

0:18:33.080 --> 0:18:36.320
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0:18:36.320 --> 0:18:40.560
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0:18:40.600 --> 0:18:44.760
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0:18:44.800 --> 0:18:47.880
<v Speaker 2>tune into The Bloomberg Law Show every weeknight at ten

0:18:47.920 --> 0:18:51.680
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0:18:51.800 --> 0:18:52.440
<v Speaker 2>to Bloomberg