A Public Defender, Running for D.A. in Pittsburgh, Wants to Join Forces with Philly’s Larry Krasner
Lisa Middleman is challenging Allegheny County DA Stephen Zappala in November.
Daniel Nichanian, | October 4, 2019
This article originally appeared on The Appeal, which hosted The Political Report project.
Lisa Middleman is challenging Allegheny County District Attorney Stephen Zappala in November. DAs should be “reducing mass incarceration and creating equity,” she told the Political Report.
Lisa Middleman looks forward to “joining forces” with Philadelphia’s reform-minded district attorney Larry Krasner if she is elected DA of Allegheny County in November.
“I would anticipate that given that our goals are very similar, our outlooks on the changes that are necessary to make this system actually work for all of the people are very similar, that we would be a strong force to reckon with,” she told The Appeal: Political Report this week in a Q&A.
Middleman works as a public defender in Allegheny County, the state’s second-biggest jurisdiction (after Philadelphia) and home to Pittsburgh. Her unusually detailed online platform commits her to not seeking the death penalty, avoiding mandatory minimums, avoiding probation terms upon release from incarceration, not seeking cash bail, and declining to prosecute marijuana possession, among other policies.
Middleman told the Political Report that she also wants to set up new diversion options for drug offenses. “The ultimate goal would be to have zero percent conviction rate,” she said about drug possession cases. “Addiction is a medical issue, not a criminal issue.” She would still use the punitive threat of charges to compel treatment, and act differently if people have repeated arrests, so she qualified that her goal is “never going to happen.” Still, her stated aim is a departure from the traditional template of DA candidates who say they will drive up conviction rates regardless of who is being funneled into the criminal legal system, and for what reason.
It is also a departure from her opponent, longtime incumbent Stephen Zappala. Joshua Vaughn recently reported in The Appeal that, of the 1,700 misdemeanor drug possession cases referred to Zappala’s office in 2017, he sought a criminal conviction in more than 90 percent of them.
The Appeal has also reported on other aspects of Zappala’s mostly punitive record, most recently on the vast surveillance network he is setting up, which Middleman said she would cease, as well as on the stark racial inequalities in the county’s criminal legal system.
During the Democratic primary in the spring, Zappala’s campaign told the Political Report that he bears limited responsibility for these inequalities; they cannot be solved by the DA alone, he said, since they involve wider societal issues.
For Middleman, though, the DA’s office is a central player in “reducing mass incarceration and creating equity.”
“Why wait for someone to become criminalized, and begin that endless cycle of in and out of the county jail, to then punish them?” she asked. She added later that, “We’ve got to try another way, we’ve got to try a more humane way, which is to try to actually address the problems that lead people to commit crimes. If we do that, everyone will be safer. And we won’t be obliterating entire generations of people of color by locking them up in prisons.”
Middleman said that besides changing prosecutorial practices she would reach outside of the criminal legal system to push for legislative change and for more community services. She would withdraw her office from the Pennsylvania District Attorneys’ Association because they have “set criminal justice reform back,” and instead lobby for progressive reforms. Her platform lays out ambitious legislative goals, including raising the age until which some defendants can be prosecuted in the youth justice system to 21 instead of 18.
Police prosecutions loom large in Allegheny County politics as well. The Pittsburgh Post-Gazette documented in June that Zappala has filed no charges in 18 of 22 cases of police homicide. Middleman told me that the DA’s office should never have the final word on whether to prosecute a police officer. She would also institute a “do not call” list of officers with a history of misconduct or racist statements.
Middleman faces a difficult road in the Nov. 5 election. She is running as an independent, whereas Zappala will appear on the ballot as the nominee of both the Democratic and Republican parties. He defeated Turahn Jenkins, a former public defender, for the Democratic nomination in May. He also secured the GOP nomination because of write-in votes cast in the Republican primary
The interview has been condensed and lightly edited for clarity.
Last week, Kira Lerner, my colleague at the Appeal, reported that DA Stephen Zappala has taken on setting up a vast surveillance network that includes security cameras and license plate readers. What is your reaction to this story ? Do you believe it ought to be within the DA’s role to set up and manage a surveillance system of the sort?
No, it’s extraordinarily unusual for the district attorney to be the one that sets up any type of investigative cameras. Traditionally, that’s been the role of the police because it’s an investigative rather than a prosecutorial tool. The other concern that was mentioned in the article in The Caucus is the cameras that he purchased were made by manufacturers that have a significant shareholder, the Chinese government, and as such, they are very prone to hacking. The cameras are not being monitored by any type of law enforcement agency. They’re being monitored by a private firm. The district attorney will not disclose the name of that firm, nor will he disclose if there are, in fact, any limitations on the use of the data. So we don’t know what those firms are even doing with the data that they’re gathering through these hackable cameras. Given that the U.S. government has said that these cameras are national security risk, I would remove them immediately.
I’d like to discuss further the scope of a DA’s role going from there. The Appeal in prior reporting has found important inequalities in the county’s legal system. For instance, more than 80% of the minors charged as adults by the DA’s office in 2016 and 17, were Black. When I asked the incumbent’s campaign in the spring about the DA’s role in this disparity, they pointed to wider issues like housing and poverty, implying that his hands were tied, or at least that the responsibility was was much more diffuse. What’s your view on how much influence the DA’s office can actually have in significantly cutting injustice and racial disparities? Are we talking too much about the authority of the DA has as opposed to other things?
This falls into your prior questions about the cameras. The district attorney has traditionally been known as the chief prosecutor, and the current district attorney calls himself the chief law enforcement officer, and I think that’s incorrect. I think you’re the chief safety officer. So your goal as district attorney is to try to ensure the safety of the people in your community. One of the most important ways that you can do that is to consider the causes of the genesis of crime and stop it before it happens.
Why wait for someone to become criminalized, and begin that endless cycle of in and out of the county jail, to then punish them? What we need to do is focus on collaboratively with members of the community, with mental health systems, with addiction experts to try to stop crime before it happens. So while a district attorney has the role of the prosecutor, I think he also has the role of trying to ensure the safety of the people of the community by stopping crime before it happens. And the way to do that is to listen to the needs of the community and be receptive to how your policies affect people in the communities that are most impacted by crime.
The other thing really important, I think, for any elected official to do is to be transparent. We have the ability, through various data information mechanisms that are available to every agency in the county, we have the ability to compile statistical data on all past cases at the district attorney’s office. We can then examine all of that data, to look for racial disparities and inequities. So, you have the race and the age and certain associated economic status of every single person who is arrested for possession of cocaine, you can analyze to see whether you’re making the same bail decision for people or whether there are this different decisions based on socioeconomic status or race. And if you are making plea bargain offers to people, you can see, do we make the same plea offers for white people that we do for Black people? Do we make the same plea offers that we do for poor people as we do for people who have means? And that’s really the only way that you’ll be able to figure out why we have such racial and socio economic inequities in the system. And you have to be willing to publish that data as well so that you’re responsible to and transparent with the communities that you serve.
To go back to the first thing you said about the DA’s participation in community conversations at the front end: Can you say more about how the DA specifically can be involved in shrinking, essentially, the DA’s role at a later point and in addressing patterns that feel mass and inequality? Is there a role for the DA to play in pushing for changes in healthcare and housing without injecting the criminal legal system in even more arenas?
Well, given that 75 percent of the people in the Allegheny County Jail suffer from addiction or mental health problems, in order to eliminate the population of the county jails and to stop punishing people for human frailties, you have to find another way to treat them. And that would be true diversionary programs that treat addiction as a health issue and treat mental illnesses as a health issue. What we need to do is create true diversionary programs in people’s communities to keep them out of the criminal legal system. 75 percent of the people in the jail would benefit from social services, mental health care, housing and employment support, and drug and alcohol rehabilitation. For years and years and years, it’s been the philosophy of the district attorney’s office that the way that you reduce recidivism, and you stop crime, and you make the community safe is to incarcerate as many people as possible. Well, that’s been a horrendous failure. We’ve got to try another way, we’ve got to try a more humane way, which is try to actually address the problems that lead people to commit crimes. And if we do that, everyone will be safer. And we won’t be obliterating entire generations of people of color by locking them up in prisons.
What do you mean by “true diversionary programs?” Many diversion programs still rely on extensive supervision conditions and the looming threat of punishment. How would you balance diversion programs where the legal system remains very involved, and policies that withdraw the imprint of the criminal legal system?
We have some programs in Allegheny County that are called diversionary programs, but they’re not. A true diversion program ends with the successful completion of the conditions of the program, leading to withdrawal of criminal charges. In some jurisdictions, law enforcement is actually responsible for diverting people out of the criminal justice system, so they avoid arrest entirely. Other jurisdictions where you are arrested, and when you fulfill the obligations of the program, then the charges are withdrawn. What those programs offer, in direct contrast to the programs in Allegheny County, is the opportunity to not have a criminal record. If you have a record, you can’t get public housing, you have difficulty getting certain loans, some people won’t hire you. So you can’t get a job, you can’t get into schools, there’s certain trade programs that you can’t get into. And you can’t pay your court costs back because you can’t get a job.
So when you have a criminal record, it can lead to this endless spiral of poverty and incarceration that’s very difficult to get out of. Whereas if you have a true diversionary program, once you successfully completed your rehabilitative program, and your service to the community, you’re on your feet and ready to go become a productive citizen. And that’s what we’re really trying to achieve is creating a situation where people can be successful.
So I understand what you mean by “true diversion,” then, to involve a program that doesn’t rely on obtaining a conviction first, it’s a way to avoid a conviction in the first place.
Right. Here in Allegheny County, you have to plead guilty before you get the help, before you get into the program, which is nonsensical because on the one hand, while you’re trying to raise somebody up and provide them with a step up, you’re smacking them down with this criminal conviction. And for non-violent offenses, it’s just really not necessary.
My colleague Joshua Vaughn, at The Appeal reported recently that that of the 1,700 drug possession cases at the misdemeanor level that will refer to him as a balanced office in 2017. He said conviction in more than 90% of them. So So how much would you what, what is your vision of how much you would shrink that number, of drug possession?
For drug possession, the ultimate goal would be, have zero percent conviction rate. That’s never going to happen, but I’m not going to prosecute possession of marijuana cases, where the amount is consistent with personal use for an individual or a very small group of friends. When you arrest somebody for possession of marijuana, and the marijuana has to get sent to the crime lab for testing in order to prove that it’s marijuana, you’re using the resources of the medical examiner’s office, the resources of the police, and if you put that person on probation, you’re using the resources of the probation department. It’s an incredible misuse of resources to be prosecuting people for possession of small amounts of marijuana, I won’t even accept the charges.
For other possessions, if people have only had one or two prior arrests for possession of other controlled substances, they should be offered the opportunity to enter into either inpatient or outpatient treatment in exchange for the charges being dropped. And even if they’re not dropped, if they’ve had more than one or two arrests, you still offer them the opportunity for a summary conviction. And there’s no reason to punish people financially and with incarceration, or excessive terms of probation, when they really just need medical attention. Addiction is a medical issue, not a criminal issue.
Another question I have about drug related issues in Pennsylvania is that there’s a trend in the state of prosecutors charging people of homicide in the aftermath of an overdose. What are your thoughts about that practice? Would you file homicide charges in the context of an overdose if you were elected?
That’s a difficult question. Because there are many different types of people that can be involved in delivering drugs to an individual who ends up overdosing. For the most part, the people I would suggest are addicts themselves, and to charge them with homicide for giving drugs to someone or selling a very small amount to someone seems to be counterintuitive. It seems that what we really need is the cooperation of those folks so that we can go further up the supply chain, and get the folks that are really responsible for bringing the substance in the state. So I think that we would be better served enlisting the cooperation of the people that have given drugs to an individual in order to investigate and eradicate the transfer of dope into our community.
Larry Krasner, the Philly DA, has captured the attention of many people who care about changing the legal system, but he doesn’t have many allies yet among DAs in the state. What do you think about his efforts in Philly? Are there instances that you are particularly interested in emulating some of the changes he’s implemented, or instances where you think he could either go further or has done things you disapprove of?
I think that Larry Krasner has faced some significant pushback from the police in his area. Now, I don’t expect that kind of horrific pushback, because the police in Allegheny County have demonstrated are the chief of police of the city, I should say, has demonstrated interest and a willingness to pursue law enforcement-assisted diversions. I’m very encouraged by the attitudes of the city of Pittsburgh police and the county police towards the national trend of diversion. So I don’t expect that I will have the same horrible pushback that Larry Krasner has had.
He’s doing some great things in Philadelphia, and there are district attorneys all over the country that have joined together in a group called Fair and Just Prosecution. And they are available allies to assist district attorneys who are trying to make these more progressive changes, or just more humane changes. In addition, I’ve reached out to a lot of community leaders and a lot of people who are very involved in trying to create platforms for social justice in the communities, so that when I am elected, the changes will be those that the community wants and needs, and not what’s dictated to them.
I think that Krasner made a very good decision to leave the Pennsylvania District Attorney’s Association because they’ve been consistently involved in lobbying for trying to get laws passed that would preclude the kind of progress that we’re looking for. They’re trying to set criminal justice reform back rather than furthering the goals of reducing mass incarceration and creating equity. So I too would leave the Pennsylvania District Attorney’s Association because they don’t represent the kind of change that we need.
If you were to leave the DA association, how do you see the role you could play to push for statewide change? How involved would you want to be in pushing for changes at the state level?
Philadelphia and Allegheny County district attorneys represent the two highest populated areas in Pennsylvania. It would seem that we would be the most able to effect real change in the legislature by lobbying and by joining forces. I would anticipate that given that our goals are very similar, our outlooks on the changes that are necessary to make this system actually work for all of the people are very similar, that will be a strong force to reckon with. And I think that given the election, at least in this area, of legislators who are interested in change, they will be supportive as well. So I think we’ll be able to make some changes in the laws that will actually make the criminal justice system something that represents and work for everyone.
Policing has been at issue in Stephen Zappala’s reelection bid in the wake of his prosecution of the police officer was shot and killed Antwon Rose II. The Pittsburgh Post-Gazette reported in June that his office had brought no charge in 18 of 22 police homicide cases over the course of his tenure. What is your plan to avoid the impunity that often accompanies such cases around the country, as we keep seeing?
What I’m trying to accomplish through these diversionary programs is that the police officers are more interested and involved in facilitating diversion. Given that, I will have to work closely with the various police agencies in Allegheny County. I think that too investigate and prosecute people with whom you work very closely, and people upon whom you rely, is that is just an absolute total conflict of interest. So I will not investigate and prosecute police officers. I will refer that to the state attorney general’s office in the event of a homicide or a series of that nature. My intention is also to have a conviction integrity unit that is walled off, so to speak from the rest of the office won’t have any interaction. In a general, day to day basis with the police, They’ll be reviewing old cases, and making sure that the convictions and sentences were appropriate in those cases, and any claim of misconduct of police officers will go to that unit. And if they decline to prosecute, that will be sent to the state attorney general’s office as well. So the Allegheny County district attorney’s office will not be the last word on failure to prosecute police officers. Every single case of that nature will be referred to the state attorney general’s office.
I don’t think that the public can have any faith in the investigation or prosecution, where there’s a blatant and obvious conflict of interest. And that’s what there will be if the prosecutor investigates and charges the police.
A follow up on that is: There has been demand by advocates around the country that prosecutors create a “do not call” list of police officers with a history of misconduct or racist views, to rule out asking them to testify or taking cases that they refer. Is that a policy that you think the DA’s office should implement?
Yes, I do. Because I don’t think that as the chief safety officer for the community, and as a representative of the people of Pennsylvania, that you can call as witnesses for the prosecution those people that have proven themselves to be untruthful, and you cannot present testimony of people who have proven themselves to have routinely violated the constitutional rights of the citizens of this county or the state. So when you stand up and you prosecute someone, you know, you are representative of the government, and the government cannot be complicit in presenting perjured testimony that’s obtained in violation of people’s constitutional rights.
Your platform explains that you will take steps to assist people avoiding the double punishment of suffering immigration consequences for the involvement with the criminal legal system. We talk a lot about immigration enforcement and ICE around the country, but less so about the DA’s role towards it. Can you explain more about what you see as the authority of the DA on this matter, and how you’d want to use the powers of DA’s office to reduce the immigration punishment for a defendant?
As district attorney, it is not my responsibility to enforce the federal laws. I will not cooperate with ICE, and there are very sound public policy reasons for that. I’ll give an example. You have a woman who potentially has a questionable immigration status, and she’s being beaten by her significant other; if she fears that coming to the district attorney’s office or coming to the police will cause her to have immigration troubles or have consequences, she won’t come to the place and she has the potential of suffering additional and further harm. And whether she stays with this person or not, if this person is a violent person, they may go on to victimize other people. So from a public policy standpoint, to say that you will prosecute her, you will turn her into immigration, makes it more likely that people like that will not come forward and report a crime, and we cannot have that because that makes the community less safe for everyone.
What about when there’s a defendant in your office and the decisions you make could potentially have an impact on immigration? Is that something that’s proper for you to consider as you make these decisions?
Absolutely. And my intention is to add an immigration attorney to the staff to advise witnesses and victims on the immigration consequences of participating in the system and also to advise assistant district attorneys on charging decisions and sentencing decisions because they, too, should be cognizant of immigration consequences.
If you have an individual who’s charged with horrific crime, we may want to consider the immigration consequences, or we would in any case: I guess what I mean is you may want there to be additional immigration consequences because this is an individual who will be incarcerated for a very long time. You may want to say, you know what, do whatever, let’s select the charge that makes it more likely that he will be removed from the country. However, if you have a different situation where you have a family, and one of the individuals in the family is charged with a non-violent crime, and the family needs counseling or the family needs support or they need job training or treatment, we would not want to traumatize a family and break up a family by causing there to be immigration consequences for one of the members of the family. So there are two very different situations where immigration consequences should be considered. So there will be an immigration expert at the DA’s office who can advise DAs of exactly what the immigration consequences will be of each decision that’s made.
You yourself are a public defender. Your opponent, Stephan Zappala, was also facing a public defender during the spring primary. He said then that “socialists focus on the rights of the accused. There is no consideration for victim rights. They don’t consider public safety. I am not running for public defender, I represent the people of the Commonwealth of Pennsylvania.” What do you think of this way of framing the mission of the DA’s office?
I think that the public perception or the inappropriate perception of the current district attorney that people who are interested in criminal justice reform are only interested in the rights of the accused is incorrect. When you talk about reforming the system, you have to talk about reforming it for the people. My philosophy is that we’ve spent a lot of time supporting and defending the institution instead of the people that the institution is supposed to service. And that includes victims and witnesses. So, the district attorney’s office needs to add social workers to the staff so that they can support witnesses and victims of crime. We need a very robust witness protection program. You know, the district attorney spends millions of dollars on, basically, a private police force that could be certainly much better used to create and staff and support a witness protection program. So public safety is the most important thing. And locking people up has not been successful in increasing public safety. The way to increase public safety is to give people the treatment that they need and support them so that they do not actually commit crime. The rights of the accused are simply one element of a more humane focus.