Boston Progressives Fear Rollback of Reforms After DA’s Early Exit
With DA Rachael Rollins now promoted to a federal office, 2022 will determine the fate of her signature reform: a public list of charges that prosecutors would decline.
Eoin Higgins, | March 8, 2022
In appointing Suffolk County District Attorney Rachael Rollins as a U.S. Attorney, President Biden promoted one of the most visible figures in the “progressive prosecutor” movement. But he also created a vacancy in a powerful local office, which covers Boston and some of its surrounding suburbs, enabling Republican Governor Charlie Baker to choose a new DA. After Rollins left in January, Baker appointed Kevin Hayden to replace her.
Within a month of taking office, Hayden pumped the brakes on his predecessor’s most emblematic policy—a public list of lower-level arrests that the DA’s office would decline to prosecute—sparking concern among local progressives who want to decrease people’s ensnarement in the criminal legal system. Among Hayden’s critics is a prominent Rollins-era staffer who monitored reforms in her office but says he was pushed out of his job within days of Hayden’s arrival this year.
Progressives are now aiming to reclaim the office in the 2022 elections. Ricardo Arroyo, Boston councilor known for left-leaning politics, is challenging Hayden. The two are expected to meet in the Democratic primary in September (other candidates could jump until May).
Rollins’s approach was in the national spotlight last fall as Republican U.S. senators opposed to Biden’s appointment attacked her list; in 2022 its fate will be in the hands of Boston voters.
Arroyo told Bolts that he would “preserve” Rollins’s reform. “The data clearly has shown that policies of declination have made communities safer including Suffolk County,” he said.
Arroyo, a former public defender who has championed police oversight measures while on the council, is also calling for other changes like the elimination of the Boston police department’s gang database, which Hayden supports. During her time as DA, Rollins was repeatedly targeted by police associations, whether over her declination policy or over remarks on police brutality.
After three years as DA, Rollins left behind an office more invested in restorative justice and progressive policies than it had been previously, though she drew criticism from public defenders and court-watchers for not implementing reforms consistently. Her crown jewel was the “decline to prosecute” list, which she rolled out during her 2018 campaign and then confirmed in March 2019.
The list included theft under $250, breaking and entering vacant property, and low-level drug offenses. It aimed to cut down on the number of people who are prosecuted and potentially saddled with criminal convictions, let alone jail time, over behaviors like substance use or homelessness. Many reformers oppose criminalizing or punishing such behaviors in the first place, saying they should be addressed through services like public health or housing programs.
“There are other mechanisms by which we can try to cure these alleged problems or social ills.” Rollins said recently to explain her approach.
John Pfaff, a Fordham University law professor who studies prosecutor policies, says a “Do Not Prosecute” list can reduce the harm of arrests and potentially trickle down to pushing the police to arrest fewer people. “Police interactions are fraught, people can often find themselves locked up between arrest and dismissal, and arrests themselves produce permanent criminal records,” he told Bolts.
“Absent changes on the police front, prosecutors can at least use Do Not Prosecute lists to minimize some of the harms from aggressive low-level arrests, which given their volume are not ‘low level’ in the aggregate,” Pfaff added.
Observers like Pfaff said in 2018 that Rollins’s campaign announcement pushed the envelope of what prosecutors were doing to fight mass incarceration, but it has since grown more common for DAs to run on platforms of declining to prosecute specific charges.
But Hayden appears to be heading in the other direction. The new DA told Commonwealth in January he may not maintain Rollins’s “do not prosecute” policy; and in February, The Boston Globe reported that Hayden would not set up or commit to a list of his own
In an exchange with Bolts, Director of Communications Matthew Brelis said Hayden has “made no changes to the list.” Nevertheless, Brelis explained that the office objects to blanket approaches.
“The concern with making decisions based primarily on charges is that they too easily become formulaic,” Brelis said. “We are dealing with human beings and they must be looked at as unique individuals, not part of an equation.” Pressed for clarification, he added, “Each case, each individual and the circumstances they bring with them are different.” Brelis also said Hayden wants to “provide the services and resources necessary to address the underlying factors contributing to low-level, nonviolent crime.”
In response to Hayden’s February interview in The Boston Globe, CourtWatch MA, a group that monitors local prosecutors, said Rollins’s commitment to a public list at least enabled accountability for her actions.
“The list of charges to be declined was just a beginning. We continued to see those charges pursued in Suffolk County courtrooms, and we pushed back,” CourtWatch MA tweeted on Feb. 16. “But announcing a list allowed for that kind of public accountability and pushback!”
Jonathan Cohn, the political director of Progressive Massachusetts, a state group that supports criminal justice reforms, says Hayden’s backtracking is a major mistake.
“There’s a strong and growing body of research that shows that declining to prosecute nonviolent misdemeanor cases not only minimizes individuals’ current involvement with the criminal legal system, but also substantially reduces the probability of future involvement,” Cohn told Bolts.
A study of Boston released in March 2021 found that declining to prosecute lower-level charges reduced crime. Using two decades of data in Suffolk County, the study established that people who were arrested but then not prosecuted over lower-lever offenses were less likely to commit a crime later. New York University Professor Anna Harvey, one of the scholars who conducted the study, explained the findings to the Boston Globe: “Keeping these individuals out of the criminal justice system seems to have an effect; it seems to stop the path of criminal activity from escalating.”
“This data shows the policies we proposed are working,” Rollins said when the study was released.
Still, Boston activists say Rollins failed to implement her list in a way that solved the underlying problems it was meant to address. The need to audit Rollins’s promises led Massachusetts Bail Fund and Families for Justice and Healing to create Courtwatch MA early in Rollins’s tenure. Massachusetts Bail Fund Executive Director janhavi madabushi told Bolts that the program’s promise and reality haven’t necessarily lined up.
“It’s 2022, and MBF can tell you that we haven’t stopped paying $1, $25, $100 bails in Suffolk county and bail people all the time for the charges that exist on the decline to prosecute list,” madabushi said. “The DAs office has continued to push narratives that they are working to keep communities safe while jailing mostly Black, Brown, disabled and poor people for the crimes of being houseless, using substances, and existing with trauma.”
Bobby Constantino worked in the DA’s office under Rollins to assess data regarding her policies and communicate with researchers. Constantino drew national attention in 2013 after he got himself arrested to make the case against overcriminalization, and he points to data collected by Rollins’s office that shows the declination rate of low-level arrests increased after her election, though it remained well short of 100 percent. Violent crime went down in Boston in recent years.
To Constantino, Hayden’s statements on the “do not prosecute” list show a disrespect for the public because this was the approach that Bostonians voted for in 2018.
“That’s what the voters are signaling to you,” he told Bolts. “They want it.”
But Constantino is now stuck watching the office from the outside; he stopped working there shortly after Hayden’s arrival.
Constantino says he was fired, though the DA’s office disputes that characterization. In an email exchange reviewed by Bolts, Constantino wrote to Hayden soon after the new DA’s appointment to say he was at his service, but the office leadership told him his last day at work would be two days hence. The office said Constantino had already handed in his resignation; Constantino denied that, replying he had indicated he would leave once he secured another job with insurance for him and his daughter. Hayden’s office declined to address this exchange, saying it did not comment on personnel matters, while adding it had not terminated anyone.
Constantino believes that his quick departure is part of a pattern of Hayden turning the page from Rollins’s reforms, back to a more law enforcement-friendly approach to criminal justice.
Arroyo, Hayden’s challenger, is similarly critical of the new DA. Hayden “effectively dropped one of the central pieces of policy enacted by former District Attorney Rollins,” he told Bolts. “I don’t believe these early decisions show any intention to continue the policies put in place.”
“Diversion and intervention done correctly more effectively address the long term and short term needs of public safety and put individuals on a path to wellness and stabilization,” Arroyo said.
Whomever wins the election this year, madabushi vows that their group will keep fighting the criminal legal system’s interventions. “Every solution worth pursuing to address root causes of harm and violence and to further racial and class equity exists outside of the DA’s office,” they said.