DA Elections Mark Shift In Criminal Justice Policy [OPINION]

Though I’m a weekly contributor to the Chris McCarthy Show as WBSM’s “resident liberal,” my primary occupation is operating a solo law practice in New Bedford. My office handles many different legal matters, but has a primary focus on criminal defense. I represent individuals who have been charged with a crime by the Commonwealth of Massachusetts, and I do my best to ensure that all of their rights have been afforded to them. Criminal law and policy has always been an interest of mine. Prior to law school I earned a bachelor’s degree in Criminal Justice from Bridgewater State University.

Thus, I’ve taken a particular interest in the national conversation that has taken place regarding criminal justice reform, which began picking up steam during the second term of the Obama Administration.

In August of 2013, then-U.S. Attorney General Eric Holder had introduced the “Smart on Crime Initiative.” The core philosophy of the initiative, according to Holder, was: "By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime 'hot spots,' and pursuing new ways to promote public safety, deterrence, efficiency, and fairness - we can become both smarter and tougher on crime.”

Holder aimed to mitigate the well-noted disparate impact the criminal justice system has on minorities by directing U.S. Attorneys to not prosecute certain nonviolent low-level drug crimes that carry mandatory minimum sentences. He had also supported legislation that reduced mandatory minimum sentences for nonviolent offenses that had received bipartisan support but ultimately did not pass. Holder’s initiatives were seen by Criminal Justice reform proponents as incremental, but necessary measures in ending some of our most draconian criminal justice policies.

In 2016, the election of Donald Trump as president brought the appointment of Attorney General Jeff Sessions. Jeff Sessions is an ultraconservative Alabama Senator and former U.S. Attorney, who once was denied a federal judgeship in the early 80’s amid accusations of making disparaging comments about civil rights and using a racial slur to address an African American subordinate. Reform advocates were dismayed.

Sessions is a well-known proponent of retrogressive “tough on crime” policies. He is a fervently anti-marijuana, pro-drug war, and pro death-penalty hardliner, who has proudly championed extremist policy proposals. For example: as Alabama Attorney General, he proposed legislation that would make the death penalty mandatory on a second conviction for drug trafficking offenses. In his first press conference as Attorney General, Sessions took a sharp right turn on Holder’s approach to criminal prosecution. Sessions called for an increase in the use of the federal death penalty, to interfere with burgeoning marijuana industries in states that have legalized marijuana, and to prosecute all drug offenses, minor or otherwise, to the full extent of the law.

Sessions' replacement, Matthew Whittaker, doesn't seem to have much interest in changing the DOJ’s current approach to these crimes.

The problem is that we've tried Sessions' approach. It began with President Nixon’s declaration of the War on Drugs in the 1970’s, was accelerated by Reagan’s “Just Say No” rhetoric, and culminated with sweeping criminal justice “reform” legislation in 1994 that reinforced the notion that harsher punishments was the appropriate approach to dealing with crime.

The end result: a 500 percent increase in the prison population since 1970, an over-incarcerated minority population (over 60 percent of incarcerated persons are people of color), and an increase in the usage and availability of illicit drugs. These draconian and systematically racist policies did nothing to combat illegal drug use, and they were arguably never intended to.

However, in spite of the fact that the Trump Administration decided to take a step backwards, Obama, Holder, and other champions of criminal justice reform can be assured that their message is the one that has resonated with the American people. In the past few years, District Attorneys (who handle the majority of criminal cases) have been successfully campaigning in major metropolitan areas across the country on a pro-reform platform of ending mass incarceration.

This first garnered national attention in 2017 with the election of Philadelphia defense attorney Larry Krasner as the City’s chief prosecutor. Krasner made the accusation that the criminal justice system “brought black and brown people from less prosperous neighborhoods into the system when that was in fact unnecessary and destructive.”

In Boston, Rachel Rollins was elected on a progressive platform that included a comprehensive list of crimes her office would decline to prosecute; this included misdemeanor larceny and drug possession offenses.

In ruby-red Texas, John Creuzot of Dallas and Joe Gonzalez of San Antonio both ousted Republican incumbent DA’s on platforms that included bail reform and rehabilitation as an alternative for nonviolent drug offenders.

Change has even come to Senator Sessions' home state of Alabama. Jefferson County elected its first African American District Attorney, Danny Carr, who proposed treating minor marijuana possession as “a traffic ticket.”

These elections mark a necessary and dramatic change in our approach to criminal prosecution, that emphasizes a focus on rehabilitation as opposed to incarceration for drug users, and a shift of prosecutorial resources towards more serious criminal offenses.

Every reasonable person understands the importance of prosecuting individuals who may have committed a serious crime. Although as a defense attorney, it is my job to ensure that all the rights afforded to the accused by the Constitution are secured, I can appreciate the Commonwealth’s role in holding people accountable when they have committed a legitimate harm against society.

But when we fail to distinguish the legitimate harms from the perceived harms, and criminalize victimless and innocuous "wrongs," we only perpetuate the culture that creates habitual offenders, and maintain a society that is weighted by the shackles of racial inequality.

Marcus Ferro is an attorney practicing in New Bedford and a weekly contributor to The Chris McCarthy Show on 1420 WBSM. Contact him at marcusferrolaw@gmail.com. The opinions expressed in this commentary are solely those of the author.