Speaker 1: This is Bloomberg Law with June Brosso from Bloomberg Radio.
Speaker 1: Enough is enough. It's about being the first African American
Speaker 1: prosecutor in the city of Saint Louis. Running on a
Speaker 1: platform about bringing criminal justice reform, bringing equality to the
Speaker 1: criminal justice system, and being stopped at at all costs.
Speaker 2: Kim Gardner was elected to be the first black prosecutor
Speaker 2: in the city of Saint Louis, Missouri, in twenty sixteen.
Speaker 2: She ran as a progressive, promising to reform the criminal
Speaker 2: justice system and review wrongful convictions, and was re elected
Speaker 2: by an overwhelming majority in twenty twenty. But this week
Speaker 2: Gardner resigned following threats from the Missouri state legislature to
Speaker 2: pass a bill stripping her office of power. The conflict
Speaker 2: in Missouri is just one part of the widening power
Speaker 2: struggle between Republican state lawmakers and elected Democratic local prosecutors. Florida, Georgia, Iowa,
Speaker 2: and Mississippi have already passed laws curtailing local prosecutors, while
Speaker 2: bills are pending in Missouri and Texas. Joining me is
Speaker 2: Carissa burn Hessick, director of the Prosecutors and Politics Project
Speaker 2: at the University of North Carolina, School of Law tell
Speaker 2: us about this trend. If it's a trend of laws
Speaker 2: to oust local prosecutors.
Speaker 3: Sure, so, I think when we look at the states
Speaker 3: that have introduced legislation to remove local prosecutors from office,
Speaker 3: I think that we should think about that legislation as
Speaker 3: being one type of legislation that we are seeing right now,
Speaker 3: and that the broader category of legislation that we're seeing
Speaker 3: is legislation to limit the powers of local prosecutors. Removal
Speaker 3: is one way to live with their power. It's probably
Speaker 3: the most extreme way. But we've seen other legislation to
Speaker 3: do things like take certain cases away from local prosecutors
Speaker 3: if they won't prosecute them, or allow other offices to
Speaker 3: step in and prosecute particular cases that a local prosecutor
Speaker 3: is declining to bring. And then I think we've also
Speaker 3: seen legislation that's just saying, maybe this area shouldn't be
Speaker 3: able to elect their prosecutor. The most high profile example
Speaker 3: of that is what we saw in Mississippi, where they're
Speaker 3: carving out some pieces of the city of Jackson's have
Speaker 3: not just an appointed prosecutor rather than elected prosecutor, but
Speaker 3: also appointed.
Speaker 2: Judges and the NAACP has filed a suit against that law,
Speaker 2: which empowered the White Attorney General to give two prosecuting
Speaker 2: attorneys authority over part of the city of Jackson. We're
Speaker 2: about eighty three percent of the residents are black. You know.
Speaker 2: I first heard about this struggle between Republican state lawmakers
Speaker 2: and democratic local prosecutors in reference to prosecutors who refuse
Speaker 2: or said they would not let prosecute abortion law violations.
Speaker 2: But is this broader? Is this about progressive prosecutors in general?
Speaker 3: I think that's right. So we have prosecutors in office
Speaker 3: who are using some tools that all prosecutors have. Right,
Speaker 3: the power not to prosecute is a power that all
Speaker 3: prosecutors have, and they exercise it quite frequently, but they
Speaker 3: usually sort of the typical prosecutor exercises that power without
Speaker 3: really talking about it very much in the news, and
Speaker 3: certainly without saying I'm not going to prosecute this category
Speaker 3: of cases, even if that's what they do. And I
Speaker 3: think that some people, maybe a lot of people don't
Speaker 3: really know that prosecutors have this power or that they
Speaker 3: exercise this power pretty often. And the prosecutors that have
Speaker 3: been running on platforms with criminal justice reform or running
Speaker 3: under the banner of progressive prosecution. They've gotten a lot
Speaker 3: of attention, and some of that attention has been negative.
Speaker 3: And I think we've probably reached the point now politically
Speaker 3: where it's politically advantageous for some people to run against
Speaker 3: these progressive or reform prosecutors, to say that they disagree
Speaker 3: with what they're doing, to say that, you know, they're
Speaker 3: misusing their power, or they're causing spikes in crime, or
Speaker 3: you know, one of any number of arguments that what
Speaker 3: they're doing is bad. And we see state official or
Speaker 3: officials that aren't the prosecutor running about this in campaigns
Speaker 3: and saying that what these particular prosecutors are doing is wrong.
Speaker 3: And I think that legislatures taking action introducing these sorts
Speaker 3: of bills, it's one piece of that, you know, sort
Speaker 3: of political backlash against these prosecutors.
Speaker 2: Yeah, a lot of the lawmakers say, well, this is
Speaker 2: about public safety, but it seems like it's all about
Speaker 2: politics because Republicans control the legislature and and the governorship
Speaker 2: in the seven states where proposals curtailing local prosecutors gained
Speaker 2: some traction this year, and the aim seems to be
Speaker 2: to take away power from local prosecutors who are in
Speaker 2: strongly progressive or liberal democratic cities.
Speaker 3: I mean it can be both, right, It can both
Speaker 3: be that these state officials are taking actions because they
Speaker 3: perceive these policies to be undermining public spacies. And they
Speaker 3: could also be taking these actions because it's politically advantageous
Speaker 3: for them to attack local officials who are of the
Speaker 3: opposite political party for them. I don't think we need
Speaker 3: to think of those two things as being mutually exclusive.
Speaker 3: I think they are related to each other, and I
Speaker 3: think both of them are probably true.
Speaker 2: Doesn't this just disenfranchise the voters who elected these prosecutors
Speaker 2: for reasons that they campaigned on.
Speaker 3: Yes, But I think that you can make that argument
Speaker 3: any time that you have one life layer of government
Speaker 3: disagreeing with the other layer of government. So like every
Speaker 3: time Congress passes the law telling the states that they
Speaker 3: have to do something, is that Congress disenfranchising the people
Speaker 3: in that state? Or do we just say sometimes Congress
Speaker 3: gets to act even if the people in one state
Speaker 3: wouldn't agree with it. It's the same thing. It's just
Speaker 3: playing out on the state versus local level. Right, Local
Speaker 3: governments sometimes get to set their own policies about what
Speaker 3: to do, and sometimes the state gets to step in.
Speaker 2: So in Georgia, which passed a law and the governor
Speaker 2: signed it, the Fulton County district attorney Fanny Willis claims
Speaker 2: it's a racist attack after voters elected fourteen non white
Speaker 2: district attorneys in Georgia in twenty twenty. Is that the
Speaker 2: only charge you've heard about racism? Or have you heard
Speaker 2: that charge in other instances as well?
Speaker 3: Yeah, I mean, I certainly think that the issue of
Speaker 3: race is very visible in all of these actions, because,
Speaker 3: as you pointed out, the states where this legislation seems
Speaker 3: to be getting tractions are states where you have the
Speaker 3: state level government controlled by Republicans, and they are pushing
Speaker 3: back against the actions or the decisions and policies of
Speaker 3: democratic das that have been elected in the big cities.
Speaker 3: Not always the big cities, but folks of the Democratic
Speaker 3: Party who's been elected. Now, it just so happens that
Speaker 3: Democratic candidates tend to do better oftentimes in areas that
Speaker 3: have high percentages of voters of color. So if you
Speaker 3: have Republican state officials pushing back against areas where they
Speaker 3: have elected Democratic officials, yeah, I mean, it's just demographically
Speaker 3: that is going to be probably a majority white states,
Speaker 3: displacing the decisions that were made by voters of color.
Speaker 2: You've called this movement of getting progressive prosecutors almost a
Speaker 2: national brand. Explain what you mean by that.
Speaker 3: So America's kind of complicated, and that we really just
Speaker 3: have two major political parties. Right, we have the Republicans
Speaker 3: and we have the Democrats. And that's fine if all
Speaker 3: you want to talk about is the presidential elections, and
Speaker 3: I would say the presidential election in November, right, the
Speaker 3: general election, because those are the two major choices that
Speaker 3: people will have in the ballot, and they're just choosing
Speaker 3: between Republicans and Democrats, and those are brands those political parties.
Speaker 3: You know, voters, potential voters have impressions about what those
Speaker 3: two parties stand for. So even if they don't know
Speaker 3: that much about a particular candidate for national office, they
Speaker 3: can rely on their overall impressions of the Republican or
Speaker 3: the Democratic Party when they're voting for senator, or when
Speaker 3: they're voting for Congress, or when they're voting for the president.
Speaker 3: Those national brands of Republican and Democrats don't work very
Speaker 3: well when we're talking about elections for local prosecutors, and
Speaker 3: they don't work very well for two reasons. First of all,
Speaker 3: some states these are non partisan offices, so you don't
Speaker 3: have a party label to rely on. So that's true
Speaker 3: in California and a handful of other states these are
Speaker 3: non partisan offices. Another reason that these national party brands
Speaker 3: don't work very well is a lot of times these
Speaker 3: elections are decided in the primary. Like where I live
Speaker 3: in North Carolina. I live in a very blue part
Speaker 3: of the state. We just had a prosecutor election. No
Speaker 3: Republican ran in the general election. The election was fought
Speaker 3: in the Democratic primary between two Democrats. So the party
Speaker 3: label isn't helping people make decisions in these elections. The
Speaker 3: party labels also aren't helping because on the national level,
Speaker 3: crime isn't as big of an issue as other things
Speaker 3: like abortion or gun rights, or taxes or spending programs. Right,
Speaker 3: national elections are about loss and loss of issues, and
Speaker 3: DA elections are about stuff that's much more specific. Right,
Speaker 3: how often are you going to use version? When are
Speaker 3: you going to ask for cash bail in a particular case,
Speaker 3: which crimes are you going to prioritize and which ones
Speaker 3: are you going to maybe not prosecute at all. The
Speaker 3: national political parties aren't associated with policies for these things
Speaker 3: because they're too specific. So the progressive prosecutor movement it
Speaker 3: sort of filled this way. People could identify as reform prosecutors.
Speaker 3: I think some of them who did weren't even necessarily
Speaker 3: running as Democrats. But even in states like California, people
Speaker 3: were able to run on this national brand, right, this
Speaker 3: idea of being a progressive prosecutor, and that brand signaled
Speaker 3: something to their voters. So the voters didn't have to
Speaker 3: like sit down and comb through election websites or like
Speaker 3: read lots and lots of news stories about debates between
Speaker 3: the candidates. They could rely on the label progressive prosecutor
Speaker 3: the same way that they rely on labels like Democrat
Speaker 3: or Republicans.
Speaker 2: Has that sort of movement led to this backlash, you know,
Speaker 2: to stop so called woke prosecutors.
Speaker 3: I think that the brand brought these issues to everyone's attention,
Speaker 3: and as the prosecutors started getting more attention, then they
Speaker 3: became an attractive target for, you know, sort of their
Speaker 3: political opponents. But I don't think that we can ignore
Speaker 3: the fact that it's not just that it was politically
Speaker 3: advantageous for you know, Republican lawmakers in Georgia or Mississippi
Speaker 3: or elsewhere to introduce this legislation. I think they also
Speaker 3: probably didn't pay much attention to what local prosecutors were
Speaker 3: doing beforehand, and by making clear what their office was doing,
Speaker 3: these prosecutors provided an opening for people to say, no,
Speaker 3: you shouldn't do that. Like traditional prosecutors, they play things
Speaker 3: very close to the vest. They rarely tell people what
Speaker 3: their policies are and how they make their decisions. I'm
Speaker 3: part of a research initiative at the University of North
Speaker 3: Carolina called the Prosecutors and Politics Projects, and we just
Speaker 3: conducted a survey of prosecutors in four different states, states
Speaker 3: where marijuana possession is still illegal, and we asked incumbent prosecutors,
Speaker 3: so fitting prosecutors about their policies, and we found that
Speaker 3: there were lots and lots of different policies ranging from
Speaker 3: full enforcement, we enforce every single case that comes to
Speaker 3: the door, to we have a policy of prosecuting none
Speaker 3: of these cases, and then lots of stuff in between.
Speaker 3: We also asked them whether they had publicly announced what
Speaker 3: their policies were, and only twenty percent of the people
Speaker 3: who responded to our surveys said that they had publicly
Speaker 3: announced their policies. They had policies, they just weren't saying
Speaker 3: what those policies were. So if you weren't saying what
Speaker 3: you do and how you use your power, it's pretty
Speaker 3: hard for people to criticize you. But if you tell
Speaker 3: people here's the policy we have and here are the
Speaker 3: decisions that we're making, it's very easy for people to
Speaker 3: disagree with you. Now, are there reasons that we should
Speaker 3: want these prosecutors to tell us what their policies are?
Speaker 3: Of course, it's an elected office. How are we supposed
Speaker 3: to know who to vote for if we don't know
Speaker 3: what they're doing. But I think this backlash that we're
Speaker 3: seeing in the states is probably a huge reason why
Speaker 3: prosecutors don't say what they're doing. They don't want to
Speaker 3: open themselves up to criticism, and they don't want to
Speaker 3: open themselves up to the sort of legislative pushback and
Speaker 3: potential loss of power that we're seeing in some of
Speaker 3: these states.
Speaker 2: Actually, in Manhattan, where I live, the current DA Alvin Bragg,
Speaker 2: there was a backlash when he first got into office
Speaker 2: and a memo was leaked where he said he wasn't
Speaker 2: going to prosecute certain crimes, and then he sort of
Speaker 2: took it back. But that's sort of an example of
Speaker 2: not wanting the public to know, but the public finding
Speaker 2: out anyway.
Speaker 3: That's right. And I'll just add here, I think part
Speaker 3: of what's going on is sometimes a reform oriented prosecutor
Speaker 3: gets elected, but all of the people who are already
Speaker 3: working in that office don't necessarily agree with them, and
Speaker 3: that's a whole different set of problems.
Speaker 2: Could these laws, some of these laws face hurdles. A
Speaker 2: New York court struck down a twenty eighteen commission that
Speaker 2: was supposed to investigate prosecutorial conduct. The laws are new,
Speaker 2: and I'm wondering if they're going to face challenges in
Speaker 2: the courts and perhaps not survive definitely.
Speaker 3: And I'll say, though, this is where things start to
Speaker 3: get complicated, because even though I think that we are
Speaker 3: seeing a national brand of progressive prosecutors, and I think
Speaker 3: that we are seeing a trend across the country of
Speaker 3: conservative lawmakers pushing back against these prosecutors, it's all happening
Speaker 3: in the context of fifty different states. And it's not
Speaker 3: just that the state legislatures are adopting different types of legislation.
Speaker 3: They're also adopting that legislation in systems that are governed
Speaker 3: by different state constitutions. So the litigation that you mentioned
Speaker 3: in New York about this sort of oversight board, it
Speaker 3: was struck down because in New York, discipline of lawyers
Speaker 3: is supposed to be accomplished through the judicial branch, and
Speaker 3: the particular advisory board that was being set up wasn't
Speaker 3: located within the judiciary. So it was a separation of
Speaker 3: powers argument under the state constitution. The state constitutions look
Speaker 3: really different. So Texas, for example, has a very robust
Speaker 3: separation of powers sort of law under its constitution, whereas
Speaker 3: things look different in some other states. Even prosecutors themselves.
Speaker 3: I've been looking into this with a co author. We're
Speaker 3: working on a paper about how to think about you know,
Speaker 3: local prosecutors and this state pushback. And in some states,
Speaker 3: you know, prosecutors are considered executive officials, in other states
Speaker 3: they're classified as judicial officials. In some states they derive
Speaker 3: their power from the state constitution. In other places there
Speaker 3: just created by statutes. So all of those things will
Speaker 3: end up mattering as these laws end up getting challenged
Speaker 3: in the court, so we might see, you know, the
Speaker 3: legislation be upheld in Florida and then a very similar
Speaker 3: piece of legislation get struck down in Texas.
Speaker 2: In Florida, the Eleventh Circuit heard arguments last week of
Speaker 2: our Governor Ron DeSantis suspending a state attorney for signing
Speaker 2: onto abortion and gender affirming care statements. Are there other
Speaker 2: instances where governors have tried to remove local prosecutors, So
Speaker 2: I don't.
Speaker 3: Know about any other governors who have taken action, although
Speaker 3: I will note that somebody asked the governor in New
Speaker 3: York whether she had any plans to do anything with
Speaker 3: Alvin Bragg in Manhattan, and she didn't say no. Let's
Speaker 3: put it that way. How prosecutors can be removed from
Speaker 3: office is also different in all of the different states.
Speaker 3: They have different procedural mechanisms. In some states, like in
Speaker 3: North Carolina, for example, where I live, people can file
Speaker 3: a petition with the court to get someone removed. We
Speaker 3: had a prosecutor who was removed a few years ago,
Speaker 3: not because he ran on some platform of reform, but because,
Speaker 3: come to find out, he wasn't really investigating a bunch
Speaker 3: of cases that had been brought to his office, and
Speaker 3: there were other problems as well. But different states have
Speaker 3: different mechanisms. You know, Larry Krassner is a very outspoken
Speaker 3: progressive prosecutor in Philadelphia. He was impeached by the Pennsylvania
Speaker 3: Pulsive representatives and that's all been tied up in litigation.
Speaker 3: It hasn't proceeded to a trial in their state Senate
Speaker 3: for various reasons when it's being litigated, So it's complicated.
Speaker 3: I'm glad that people are talking about local prosecutors. They're
Speaker 3: an incredibly important piece of the criminal justice system. But
Speaker 3: it's difficult for us to have national conversations about these
Speaker 3: things because at the end of the day, so many
Speaker 3: things are going to turn on very sort of specific
Speaker 3: technical state law issues, and I mean, hey, you know,
Speaker 3: it's hard enough to talk about those issues once, trying
Speaker 3: to talk about them half a dozen times to explain
Speaker 3: why things are different in different states. I think there's
Speaker 3: you know, it's so much that the American public can bear.
Speaker 2: I do think my listeners can bear it, though, Thanks
Speaker 2: so much. Carissa. That's Carissa Burne Hessig, director of the
Speaker 2: Prosecutors and Politics Project at the University of North Carolina
Speaker 2: School of Law. And that's it for this edition of
Speaker 2: The Bloomberg Law Show. Remember you can always get the
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Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening
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