On the Challenges of Running As a Reform Prosecutor in Oklahoma

Daniel Nichanian   |    November 15, 2018

This article originally appeared on The Appeal, which hosted The Political Report project.

Jenny Proehl-Day and Cory Williams ran for district attorney on the need to reform Oklahoma’s criminal justice system and curb mass incarceration. On Nov. 6, they lost to two incumbents who are generally reform-skeptic: Steve Kunzweiler (Tulsa County) and Laura Austin Thomas (Payne and Logan counties). (See: my previews of Tulsa and Payne and Logan.)

In separate interviews on Monday, Proehl-Day and Williams detailed some of the difficulties they experienced running for prosecutor on such a platform.

“We struggled to get anybody to care about the DA race,” said Williams, who is a Democratic state representative. “Ninety percent of my campaign was actually an education about what a DA is, what a DA does… [It was] not uncommon to hear, ‘I’ve never been arrested, why do I care, how does this impact me?’” He added that he was hampered by a parallel indifference among the people in a position to help financially. “There isn’t a built-in pipeline fundraising for DA races,” he said, contrasting his experience in this election with his past legislative races.

According to Proehl-Day, people were “completely unaware” of a DA’s role, which enabled Kunzweiler to obscure the discretionary power he enjoys. “The incumbent wanted to frame [reform] as the legislature’s job,” she said. “[He] was dead set that there is no discretion in his job, that he needs to follow the law.”

Proehl-Day and Kunzweiler indeed clashed over prosecutorial discretion. After Proehl-Day said that she would decline to prosecute marijuana possession, Kunzweiler denounced her stance. “That’s not what a DA does, DA’s job is to enforce the laws,” he said. But in a new interview in the New Yorker, Kunzweiler describes his role as going well beyond the rigid application of laws, extending it to “teach[ing] people the morals they either never learned or they somehow forgot.” To illustrate how he makes calls about how to punish defendants, he compares prosecution to disciplining children. “There are times when your kids need a lecture, times when they need a grounding, and times when they need a spanking,” he said.

Proehl-Day listed ways in which Kunzweiler does much more than merely apply the law. “Overcharging, undercharging, those are all discretion,” she told me. She pointed to his efforts to “thwart” a recent reform that voters adopted to reduce drug sentencing by upping the charges he files. But Proehl-Day also described feeling partially boxed in by his rhetoric. “When he frames it that way, I come across looking like an activist,” she said.

The claim that prosecutors’ political preferences are irrelevant to their function also obfuscates the lobbying role that the Oklahoma District Attorneys Council has played by speaking out against legislative reforms. Williams noted that the group has “time and time again” watered down or impeded legislative deals; he said that he ran to be a “counter-lobby” to the council. Prosecutors coming together to organize against legislative reforms is a pattern that recurs across the country.

Both candidates insisted that reform remains urgent, and that the current debates about building new prisons in Oklahoma could be an entry point for change given the cost of building new facilities. “Oklahoma is at a breaking point,” Proehl-Day said, describing as unsustainable the state’s new status of having the country’s highest incarceration rate. “What Oklahoma is doing is fiscally irresponsible and morally repugnant.”