D.A. Associations Should Own Up to the Splintering Politics of Prosecution
California’s DA association responded to a critic in a letter signed by nearly all prosecutors. But this may only exacerbate worries about DAs’ tendency to talk in a single political voice.
Daniel Nichanian, | February 14, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
California’s DA association responded to a critic in a letter signed by nearly all prosecutors. But this may only vindicate worries about prosecutors’ tendency to talk in a single political voice.
San Joaquin County District Attorney Tori Salazar left the California District Attorneys Association (CDAA) in January over its resistance to reform. “We just felt that they were in opposition to almost all change that the voters of California had asked us to enact,” she said. In California, and elsewhere, prosecutors’ statewide associations have consistently lobbied to make laws more punitive and opposed changes that would reduce incarceration.
Then, in a Jan. 31 letter obtained by the Political Report, the CDAA objected to what it called Salazar’s “accusations against our integrity and basic compassion towards those enmeshed in the criminal justice system.” Printed on CDAA letterhead and signed by nearly all DAs, the letter expresses disappointment in Salazar, and mentions initiatives such as conviction integrity units (CIUs) and diversionary courts as evidence that “members of CDAA embrace and prioritize values of mercy, compassion, and redemption, along with our commitment to crime prevention and empathy for victims of crime, who are disproportionately people of color.” Salazar’s office confirmed that it has received the letter; the CDAA did not respond to a request for comment.
In closing ranks against Salazar, though, CDAA members also vindicated one of her points: that there’s a problem with DAs’ tendency to talk as a single political voice.
“The CDAA represents all 58 counties, and so when they take a position the inference is that this is the voice of all 58 counties and that it is across the state of California that district attorneys are opposed to it,” Salazar told me in January. “Now, each district attorney can stay opposed, neutral, or endorse whatever bill…. But CDAA as an organization is one voice for the entire state.”
The common inference that a DA association is reflecting the perspective of all prosecutors, no matter the actual contrasts between them, makes its statements more authoritative.
In 2018, a Political Report analysis of the Pennsylvania District Attorneys Association (PDAA) showed how the group’s leaders spoke in the name of prosecutors writ large, and how the coverage they received reflected that sleight of hand. That is one of the reasons Philadelphia DA Larry Krasner gave for quitting Pennsylvania’s DA association (PDAA) at the time. “The [PDAA] will not claim legitimacy of its most important criminal justice jurisdiction and try to take us back 40 years,” he said.
The sense of unanimity may be exaggerated in California as well. Lizzie Buchen, criminal justice director of the ACLU of Northern California, told me that some DAs are sympathetic to reform when they set local policies, but that when the time comes for statewide advocacy, it has been “rare for anyone to take a public position” that counters the CDAA’s stance.
And that stance typically has been to oppose decarceral and other reform proposals. “We just expect their opposition around everything we do on criminal justice,” Buchen said. The CDAA has opposed a series of ballot initiatives this decade, including proposals to legalize pot, reduce penalties for drug offenses, and weaken three-strikes rules. It has also fought many landmark laws, such as the new restrictions to the prosecution of minors as adults.
Still, there is no denying that California DAs were nearly unanimous in joining the Jan. 31 letter pushing back against Salazar.
Fifty-four of the state’s 58 DAs signed it. A 55th DA, Michael Atwell of Alpine County, told me he had agreed to sign the letter and did not know why his name was missing.
That leaves Contra Costa County’s Diana Becton and San Francisco’s Chesa Boudin as the lone holdouts, besides Salazar herself. “I respect DA Salazar and her decision and the reasons for the decision,” Becton, who is known for her reform-minded politics, said in a written statement about her reaction to Salazar’s withdrawal. “I have, and will continue to partner with her to address necessary and needed changes to our criminal justice system.” Becton added that she herself has “no intention of leaving the association.” Meanwhile, Boudin’s office did not respond to multiple requests for comments on his views on Salazar and the CDAA, and on his intentions regarding his own membership in the association.
Here the concern is less false unanimity than it is many prosecutors’ propensity to sidestep their vast policy discretion. That discretion makes their jobs thoroughly political. But faced with criticism regarding their association’s policy choices on high-profile issues—exemplified by its series of oppositions to proposed reforms through the 2010s—most DAs framed it as “a disparagement on our professional reputations.”
The CDAA, as do many other DA associations, blurs the functions of a professional membership organization and those of a policy force that advocates for a fairly consistent ideological line.
That fosters the misleading expectation that there’s an obvious “law enforcement side” to criminal justice debates, one that flows naturally from the professional experience of being a prosecutor as opposed to representing defendants.
But that entire premise has crumbled in recent years. Activists have zeroed in on the many things DAs could do differently and have organized accordingly. Local elections have been rocked by newly contentious debates about what policies DAs should implement — whether to ever prosecute drug possession charges, and with what severity, whether or when to seek pretrial detention, and so on. Newly-elected DAs have implemented a wealth of reforms aimed at reducing incarceration. And many, like Boston’s Rachael Rollins, have clarified that confining prosecutors to represent just one side or another is unworkable.
In short, the politics of prosecution have come into view. And that has belied the convention that tough-on-crime preferences just come with the territory of being a law enforcement professional.
“The idea that DAs in California are a monolith is inaccurate,” said Anne Irwin, the director of Smart Justice California. “There should be associations that reflect different ideologies.”
Irwin thinks that progressive prosecutors should form a new organization with a distinct philosophical orientation that better reflects the goals of criminal justice reforms. They would gain more, she argues, than in breaking off by themselves. “In California, we are well-poised for an alternative DA’s association,” she said.
Early hints of such a dynamic are percolating in Virginia, where a group of new prosecutors said last year that they wished to “band together” to push for progressive changes. This month, they signed unto a letter calling for the abolition of the death penalty. They have all remained in Virginia’s prosecutorial association, though. Similarly, reform-minded prosecutors sitting in different states are increasingly teaming up with one another to shape the national conversation, and even to intervene in local settings.
Could Los Angeles’s 2020 election spark parallel conversation around the CDAA’s fate? One candidate, George Gascón, was a CDAA member while he served as San Francisco DA. Asked for his plans if elected, he did not address whether he would stay in the association, but he said via a spokesperson that many CDAA positions “reflect dated notions of criminal justice that available data suggests do not enhance safety or equity. If CDAA does not evolve it will go extinct.”
Rachel Rossi, another candidate and a former public defender, said via a spokesperson that she “applaud[ed]” Salazar’s decision because “the CDAA has long opposed the progress and reform that California voters have supported, and has misled the public by suggesting that data-driven criminal justice reforms will harm public safety.” She added that she would first try to “reform and modernize” the CDAA from within but would “consider leaving” if “reform is continually resisted.”
But besides the feasibility of progressive candidates winning enough DA races to steer the CDAA in a different direction, why should 58 prosecutors ever all be speaking in one voice — whether that voice is for or against reform? To the extent that they are all elected, and are bound to have run on different platforms, why throw upon them an expectation of consensus that we know to not demand nor desire from other public officials?
Moreover, some voices on the left and some abolitionist advocates have demanded that progressive DAs shrink their own power and “get out of the way” for other public and community services to thrive. A still-more urgent question may be, then, how DAs can weaken the whole assumption that prosecutors should have a privileged standing to weigh in on legislative debates, and instead strengthen coalitions and associations that amp up the voices of other actors.