Can the California Elections Usher in a Slate of Progressive District Attorneys?

Can the California Elections Usher in a Slate of Progressive District Attorneys?

Can the California Elections Usher in a Slate of Progressive District Attorneys?

For the first time in years, conservative incumbents are facing reform-minded challengers. Can the reformers prevail?


Summer Stephan is a law-and-order, tough-on-crime prosecutor who is running for re-election as District Attorney of San Diego County. A self-described “national leader” in sex-crimes prosecutions, and a Republican who enjoys the backing of a small army of law-enforcement associations, she would likely have coasted her way back into office in years past.

This year, however, Stephan faces an unlikely challenge: Geneviéve Jones-Wright, a public defender who embraces a slate of progressive criminal justice reforms, is running as a Democrat to replace Stephan. Backed by Our Revolution, the Working Families Party (WFP), and other grassroots groups, Jones-Wright makes for an unusual candidate for a position that has historically focused more on locking people up than pursuing broad notions of justice. Yet, as Californians head to the polls today, what marks the San Diego DAs race as particularly unusual is that it isn’t the only one of its kind.

Across California, district attorney elections have heated up thanks to a wave of viable reform candidates, a large number of people who want reform, and the money to run campaigns. Much like Larry Krasner, Philadelphia’s recently elected and extremely progressive District Attorney, these candidates are running on platforms promising to reduce the use of cash bail, promote racial equality, and vigorously prosecute police shootings. The candidates include Jones-Wright in San Diego, civil rights attorney Pamela Price in Alameda County (the seat of Oakland), and Noah Phillips in Sacramento, among others, while their opponents are high-profile Republican stalwarts like Sacramento DA Anne Marie Schubert, Alameda County DA Nancy O’Malley, as well as incumbents in Yolo County, Riverside and elsewhere.

At first blush, it shouldn’t seem surprising to find these sorts of candidates seeking office in California. The epicenter of the anti-Trump resistance, the state has also become a leader in criminal justice reform, reversing course on decades of mass incarceration. Indeed, many of the reforms that prosecutors like Krasner have promised elsewhere are already law or proposed laws in California: not prosecuting marijuana cases (California already legalized marijuana), lowering the jail time for certain non-violent crimes and giving those convicted of prostitution the chance to clear their records.

And yet, not everyone in the state’s criminal-justice apparatus is on board with these efforts. In many counties, in fact, incumbent district attorneys stand in the way of criminal justice reform, both in their individual charging decisions and as lobbyists in the state capital. This is true even in those counties that voted overwhelmingly for Hillary Clinton in 2016. As Margaret Dooley-Sammuli, criminal justice director of the ACLU of California, explained: “An elected DA’s job is to seek justice, work to prevent crime, and serve as a leader of the diverse communities they represent. But, for too long, many DAs have operated inside a bubble free from public oversight.”

Now, however, thanks to a rising new consciousness of the role that prosecutors play in shaping (and all too often warping) justice, the public is beginning to demand accountability—and to field candidates. These candidates are getting help from some powerful players: George Soros has donated $1.5 million to California Justice PAC, which is being used to back reform prosecutors like Jones-Wright. But there is also real grassroots energy feeding the campaigns in the form of Real Justice PAC, which has endorsed several of the reform DA candidates in California, as well as Our Revolution, the WFP, and smaller local groups.

As Election Day kicks off in California, the question is: can these progressive candidates ride the wave of reform to victory against seasoned incumbents? And, should they win, can they withstand the coming backlash against a decade of reform?

Summer Stephan became the top prosecutor in San Diego County in the spring of 2017 when her predecessor, Republican Bonnie Dumanis, picked her to take over, a choice that was confirmed by the all-Republican county supervisors. Stephan has a 27-year track record in the San Diego office, mostly recently as the head of sex crimes and Dumanis’s second in command.

Like Dumanis, Stephan has historically been tough-on-crime in a county where 56 percent of the voters chose Clinton in the presidential election. She has managed this trick, in part, by casting herself as a pro-woman crusader fighting against sex trafficking, which is a cause that unites both victims’ rights advocates and feminists. In a gushing article published last year, she was hailed as a genuine life Olivia Benson—Mariska Hargitay’s driven detective character on Law and Order—and she herself has touted her office as a “real-life Special Victims Unit.”

But, Stephan’s critics argue that she has not only overstated her impact on sex trafficking prosecutions—her office only prosecuted 19 cases last year, which she says is because preventative measures worked—but that she is also inconsistent in her stance. Stephan did not, for instance, support California’s Senate Bill 1322, which decriminalizes prostitution for minors. She also disputes the idea of voluntary sex work, a position supported by some victims’ rights groups but denounced by the ACLU and criminal justice advocates. Jones-Wright, in contrast, told Reason that to deny the existence of voluntary sex work “means she doesn’t live in reality. You have to question her knowledge base.”

Stephan also has troubling cases in Stephan’s past, among them her investigation into the 1998 stabbing death of Stephanie Crowe, a 12-year-old girl killed in her home. Stephan indicted Stephanie’s 14-year-old brother Michael and his friend on the basis of coerced interrogations—and, even when DNA evidence pointed to another person, she didn’t drop the charges against the teens for years and threatened to bring charged in the future. The Crowe family sued and won $9 million (no one has ever been successfully convicted for Stephanie’s death). Now Cheryl Crowe, Stephanie’s mother, is supporting Jones-Wright.

“All [Stephan] has to do is tell the truth and have some ethics,” Crowe said at a news conference last week. “If we could have a DA who does that, things would be better.”

Jones-Wright entered the race with the hopes of broadening the conversation about criminal justice in San Diego County—and, arguably, she has. Thus far, Jones-Wright’s platform has focused on reducing the reliance on cash bail and addressing racial inequities in the system. Over the phone, she spoke with me about reducing quality-of-life arrests, which primary impact the homeless, and juvenile justice. She summarized her position as closer to the values of San Diego County’s majority Democratic electorate: “We just have leaders who occupy county positions that don’t reflect our values. That’s something that we have to change.”

Heated elections are rare in a county where there have only been three contested district attorney races in 24 years. (According to Color of Change, 84 percent of prosecutors ran unopposed in 2016.) But, as expected, Stephan’s campaign has pushed back forcefully against her challenger. She brought on  hard-charging zealot” (and former Marco Rubio advisor) Jason Roe as a campaign consultant. And Stephan herself has spent much of the campaign attacking Jones-Wright for lacking trial experience, arguing that Soros is tainting the process, and trotting out victim’s rights advocates in support of Stephan. In one campaign event, Stephan supporters rallied around a rape victim who blasted Jones-Wright for defending her attacker while working as a public defender.

Stephens’ campaign has also marshaled the extensive support of local law enforcement associations, including the Los Angeles Association of Deputy District Attorneys (ADDA), a reactionary group led by prosecutor Michele Hanisee which adamantly opposes reform. Hanisee has blasted Jones-Wright for being “soft-on-crime” and accused Soros of trying to buy the criminal justice system. When I asked Hanisee over email why she was concerned about this election—after all, she represents the ADAs in Los Angeles, not San Diego—she wrote, “We think all the citizens in the state should be well represented” and argued that funding for DA elections should come from “people with some skin in the game—not outsiders.”

But beyond local politics, the current races should also been viewed against the background of impending backlash to California’s criminal justice reform efforts. Stephan’s supporters regularly generate fear-mongering articles that consider the potential election of Jones-Wright as a catastrophe for the law-abiding citizens of the county. The ADDA has called Jones-Wright a “threat to public safety”; Stephan has referred to her as the “antiDA.”

Yet, there’s a fundamental problem with this argument: as Californian’s for Safety and Justice found in a state-wide surveycrime victims want more rehabilitative services and less punishment. Moreover, Jones-Wright argues that she understands the needs of the county as both a public defender and a black woman, someone who has seen racial disparity and inequality and wants to change it. “We are resonating with people of color and young people who normally would not participate in an election like this,” she said.

Still, the idea that reform conflicts with the rights of victims is a powerful one that traditional prosecutors have relied on to get elected and stay in power for as long as they do. The ADDA, after all, wouldn’t care about the San Diego County DA election if there weren’t something in the air that threatened to make criminal justice reform in California permanent and ongoing.

Five hundred miles north, in Sacramento County, Republican District Attorney Anne Marie Schubert is scrambling to hold on to her seat amid a challenge from Noah Phillips, a deputy district attorney touting a progressive reform agenda. While the county leans increasingly Democratic, Schubert, who was elected in 2014, has aligned herself specifically with anti-reform victims’ rights movements. She was one of the major architects of a lawsuit filed against California Governor Jerry Brown as a way to block one of his criminal justice initiatives from reaching voters. She has also aligned herself with Sacramento Sheriff—and Trump supporter—Scott Jones(also facing reelection).

Right now, Schubert is getting national attention and public praise for this year’s arrest of a man believed to be the Golden State Killer. Her new television spot—with the tagline “She Protects Us”—touts her expertise with DNA analysis, which actually includes only one other DNA-based case that I could find, the cold case of Penny Parker, who was killed in 1977. In light of this recent coup, Schubert has been able to capitalize on the moment and paint herself as a savior. (Shubert and her campaign manger did not respond to my requests for an interview.)

But, she’s always been throwback prosecutor, and nowhere is it more obvious than in her support of a group of measures that would effectively dismantle the progress California has made thus far to reduce the state’s unconstitutionally overcrowded prison population. In 2014 and 2016, California voters approved Prop 47 and Prop 57, respectively, which reduce the number of non-violent prisoners who must serve time in the state prison system. Under these laws, most of which have just recently come into effect, some crimes have been reduced to misdemeanors, meaning that those convicted of these offenses now spend time in county jail or on probation.

The result has been unevenWhile the California prison population plummeted and fewer people are serving time behind bars, individual county jails have grown overcrowded as the state has been slow to hand over money for rehabilitative programs and other services.

Sacramento has seen a steady fall in crime like all major cities (including San Diego), but the passing of Prop 47 and Prop 57 has alarmed Schubert, who supports harsh punishments, evidenced by her support of the pro-death-penalty initiative brought before voters in 2016. Schubert is now overseeing the dismantling of both popular reforms through her work as a supporter of the California Public Safety Partnership, which consists of law enforcement, crime victims groups, business interests, and others. The group is currently pushing a ballot initiative that make more misdemeanors punishable as felonies and once again reduce the use of good-time credits. The coalition is also calling for expanded DNA collection from arrestees.

Schubert has been under scrutiny by civil rights groups since the March 18 shooting of Stephon Clark, a black man shot eight times, mostly in the back, by Sacramento police while holding nothing but his cell phone. (The official autopsy report was questioned by the lawyer for the Clark family, who hired Dr. Bennet Omalu—of Concussionfame—to conduct an independent autopsy.) The DA has refused to indict the officers in question, and her campaign took donations from two police unions just days after Clark’s death, raising questions about her impartiality. According to The Intercept, Schubert received $13,000 in funding after Clark’s shooting from law enforcement groups and some $420,000 total from law enforcement (and people affiliated with law enforcement) for her campaign. Schubert has also refused to indict shooters in other police shootings and, in response to protestors demanding justice for Clark, erected a wall around her office.

Her opponent, Noah Phillips, has consistently campaigned a criminal justice reform platform. Phillips, who has promised to reform the way the office treats police shootings, now has support from the California Justice & Public Safety PAC, the George-Soros funded venture, and Real Justice PAC. (Phillips did not respond to my request for an interview.)

Like Stephan, Schubert has maintained the support of major law enforcement groups including deputy sheriffs and officers. But, in Sacramento, as in San Diego, there are signs that support is eroding for the incumbent. Sacramento City Councilman Allen Warren withdrew his support for Schubert in early May for what he describes—without naming any specifics—as racial inequities in the criminal justice system. More recently, Senator Kamala Harris, the once-Attorney General of California, announced her support for Phillips and Jones-Wright over the incumbents.

As Californians head off to vote today, it’s hard to know how the progressive candidates will fare. Because the movements are new, the reform district attorney contenders are, in some cases, less experienced and carry some baggage from their own past mistakes: Noah Phillips, for instance, caught justifiable heat after The Sacramento Bee unearthed a racist and sexist email exchange with his uncle; California Justice PAC pulled all the remaining ads it had lined up for Jones-Wright in the days before the election, possibly because it looked like she is unlikely to win.

Nevertheless, supporters of the new wave of candidates are hopeful that, even if they don’t win this time, they are setting a precedent for future candidates—while also sending a message to incumbent district attorneys that reform matters.

In the interim, what observers should take away, aside from the importance of district attorney elections, is the deeply-baked conservatism of any prosecutor’s office. While California enjoys a reputation as a thorn in Trump’s side and a resistor of Jeff Sessions-style tyranny, most of the elected prosecutors haven’t had to engage with the reform-mindedness of the majority. For a long time, voters separated reform politics from the everyday business of keeping crime and poverty invisible. But, as the voices of those most affected get louder, it’s harder to ignore the disconnect between a state that prides itself on being at the front of reform and counties that keep oppressing people of color.

Of course, just electing prosecutors making promises won’t necessarily bring change to the system. Advocacy groups plan to continue the work by following up and holding elected officials accountable. It also remains to be seen whether progressive prosecutors can hold their positions for the long term, since their fundamental role in the adversarial criminal justice system is to lock people up. Krasner, for example, has been successful in asking his prosecutors to consider the associated incarceration costs when charging defendants and reject marijuana possession cases, though it remains to be seen how the relationship will bend—or break—under pressure.

Miriam Krinsky at Fair and Just Prosecution, a group that seeks to provide support for the new breed of fair-minded prosecutors summarized the challenge. “It is the challenge of every reform-minded prosecutor who is elected to live up to the ideals and promises that carried them into office,” she wrote in an email.  Their work “must include an expansive vision for prosecution that emphasizes accountability, transparency, and meaningful engagement with their community and that judges success by factors that move away from past measures of simply convictions and indictments.”

Should Jones-Wright, Phillips, and the other progressive challengers be elected, then, these prosecutors will have work to do to secure their place. Jones-Wright told me that she had “a hundred” things she is ready to do, among the most important of which is being a “strong voice in authoring and sponsoring legislation at a state level that impacts people in all areas,” not just making good individual decisions.

Based on the power of the prosecutor to lobby for or against legislation, the movement does mean something for the state, and country at large. So many DA elections have gone unchallenged for so long, allowing dynasties of prosecutors to remain in place, even as their more conservative values don’t reflect the ideals of their electorate. California has become a leader in reducing prison populations; now there’s a chance that the Golden State will vote for leadership that wants to keep these changes in place.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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