On March 16, Aramis Ayala, the first black state attorney for the Ninth Judicial Circuit in Florida, which includes Orlando and Orange counties, took the podium in front of the Orange County Courthouse and announced that her office would no longer seek the death penalty. “I have determined that doing so is not in the best interest of this community or the best interest of justice,” Ayala said, explaining that she’d based her decision on a host of factors, including the high costs of death-penalty prosecutions, the lack of a deterrent effect, and harm to the victims’ families. “I do understand this is a controversial issue,” Ayala concluded. “But what is not controversial is the evidence that led me to my decision.”
The impetus for Ayala’s announcement was the trial of Markeith Loyd, who was accused of shooting his pregnant ex-girlfriend in her home as well as a police officer in a Wal-Mart parking lot. Witnesses saw Loyd firing multiple rounds into the officer’s prone body. The killing inspired particular ire among law-enforcement leaders, who demanded the death penalty alongside the Florida attorney general and some lawmakers.
Opposition to Ayala’s death-penalty ban came swiftly. Florida Governor Rick Scott removed her from the Loyd case and then went a step further, removing Ayala from all of the capital cases in her district—more than two dozen—and reassigning them to Brad King, the state attorney for the neighboring Fifth Judicial Circuit. King, a former sheriff’s deputy, is a steadfast supporter of capital punishment. Ayala’s choice also put Florida’s other elected state attorneys in an uncomfortable spotlight: Many were quick to condemn her, supported by law enforcement and victims’-rights advocates. Someone sent her a noose in the mail along with racist messages, and a court employee wrote on Facebook that Ayala should be “tarred and feathered if not hung from a tree.” Later, she was pulled over by an Orlando cop and subjected to intrusive and skeptical questioning. (A video of the encounter later went viral.) One former state attorney predicted that Ayala’s decision would lead to a huge spike in murders, saying on the local news that “I, frankly, was flabbergasted…. When you don’t have a death penalty, bad things happen.”
Among those opposing Ayala was the Florida Prosecuting Attorneys Association, a professional organization that includes the state attorneys from every judicial circuit in the state. In addition to providing resources and training for prosecutors, the FPAA provides testimony before the State Legislature, lobbies for or against pending bills, and writes amicus briefs. After Governor Scott announced that he would remove Ayala from all of her capital cases, she sued to stop him, arguing that he was constitutionally prohibited from doing so. Officially, the FPAA has no position on capital punishment, but in May the organization filed an amicus brief siding with Scott and arguing against Ayala, a dues-paying member of the association. The FPAA brief said that Ayala had violated the separation-of-powers doctrine by effectively setting her own policy. (At the end of August, the Florida Supreme Court ruled against Ayala in a split decision.)
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Before the amicus brief was filed, I spoke with former FPAA president Glenn Hess, the state attorney for the 14th Judicial Circuit, who explained the organization’s purpose to me. “At the FPAA, our job as prosecutors is not to make law,” Hess said. “It is to take the law the Legislature makes and enforce [it] in the state.” An investigation by The Nation, however, tells an entirely different story. Not just in Florida but nationwide, district attorneys’ associations are powerful political actors. They do not just “enforce” the law; in fact, they help to make it.
District attorneys’ associations exist in most states. They consist of dues-paying members—generally the lead prosecutors from every county or district in the state—and have bylaws, like most professional groups. As professional organizations, they also have nonprofit status; their activities include public education and training as well as lobbying.
For the most part, these prosecutors’ associations adopt a “tough on crime” stance, advocating for legislation that would give them greater discretion to lock people up. “They all too often act as a roadblock to significant reforms,” says Udi Ofer, director of the Campaign for Smart Justice at the American Civil Liberties Union. “In state after state, we’ve seen DA associations hold back reforms that are supported by Democrats and Republicans alike.”
According to Fordham University law professor John Pfaff, prosecutors are the single most important factor in the increase of prison populations, because they tend to file charges even when the evidence suggests that someone should go free, and generally pursue the harshest sentence they can get. District attorneys and county prosecutors can opt to drop charges—for example, by refusing to prosecute marijuana possession—or to favor pretrial intervention. But Pfaff found that between 1994 and 2008, even as crime and arrest rates fell, the number of felony charges filed by prosecutors increased. From this data, he concluded that prosecutors were driving the phenomenon of mass incarceration through punitive charges and penalties.
Prosecutors have one big reason to protect harsh sentencing: Today, around 95 percent of federal and state criminal cases end in a plea bargain. Such agreements, in which the defendant pleads guilty in exchange for a fixed sentence, avoid the time and expense of a jury trial, making it faster and cheaper for prosecutors to close cases. And the more draconian the punishments that a prosecutor has at her disposal—high mandatory minimums, say, or the ability to charge a youthful offender as an adult—the more leverage she has to persuade someone to take a plea bargain instead of risking a trial.
In the last year or so, criminal-justice reform has topped the legislative agenda in several states, from conservative Florida and Louisiana to liberal California, and advocates for reform exist across the political spectrum, from the conservative Right on Crime, the Koch brothers, and former House speaker Newt Gingrich to the ACLU and Black Lives Matter. In response, prosecutors’ associations have pushed legislators hard to reject such reforms. And, in most cases, they have succeeded.
In Florida, the FPAA’s general counsel and lobbyist of 47 years is Arthur “Buddy” Jacobs. He lives in Fernandina Beach, an exclusive community on the state’s northeastern tip. An article in the Fernandina Observer, the local paper of record, describes Jacobs—pictured in a glaringly white suit and straw hat—giving an eloquent dedication speech at a brass-band ceremony unveiling a $100,000 restored train depot. A history buff, Jacobs reminisced on the Confederate past of his adopted hometown and thanked the others who helped him preserve locally well-known landmarks.
Jacobs has had a bit of trouble with the law himself, making him a controversial figure among the prosecutors he represents. In 1991, he was indicted for his role in manipulating St. Louis municipal bonds. After entering a diversion program and paying a hefty fine, he was accused of the same behavior, this time in Fernandina Beach. He managed to escape unscathed, but money troubles followed him everywhere. In 2007, the 11th Circuit Court of Appeals found Jacobs guilty of willful tax evasion based on his profligate spending and disdain for paying taxes. An appeals court issued an opinion holding that “the record overwhelmingly shows that Mr. Jacobs willfully attempted to evade or defeat his taxes,” and noted that the record was replete with “badges of fraud.” Former Jacksonville state attorney Harry Shorstein, who has known Jacobs since college, wanted the FPAA to fire him in the 1990s. “Some of us felt that we didn’t want to be represented by someone under federal indictment,” Shorstein said.
Preserving history is one of Jacobs’s gentlemanly pastimes, but he is himself a living anachronism. In his nearly half-century of work with the FPAA, he has lobbied for mandatory minimum sentences, lobbied against legislation that would allow juvenile offenders to remain in juvenile court, and opposed open-records laws. Most recently, he was the primary author of the FPAA’s amicus brief opposing Ayala on the death penalty. He appears to have taken little of the new science on juvenile development into consideration, or the fact that, according to the Pew Research Center, support for capital punishment is declining across the political spectrum. (Currently, it hovers at 49 percent, down from 80 percent in the mid-1990s.)
Prosecutors are part of this trend, too: Their use of the death penalty has been in steep decline in recent years. But Florida has maintained a troubled relationship with the practice, and it now has the second-largest death row in the nation. A report by the Fair Punishment Project counted five counties in Florida among the nation’s 20 “most deadly.” In Jacksonville, the previous state attorney, Angela Corey, held the dubious distinction of winning the most death sentences in Florida. Nationwide, black people are disproportionately sentenced to death, and there is even social-science research to suggest that the more “stereotypically black” someone looks, the more likely he is to receive a death sentence. Indeed, the majority of death sentences are handed down in the region that had once been the Confederate States of America.
Last year, the Florida Supreme Court held that the state’s death-penalty statute—which allowed people to be condemned to death by a non-unanimous jury verdict—was unconstitutional. All executions were placed on hold until the Florida Legislature revised the statute to conform with the State Supreme Court’s ruling. Yet there is still some debate about the fate of those currently on death row who were sentenced by non-unanimous verdicts—about 75 percent of the 396 people there.
Throughout Florida’s death-penalty controversies, Jacobs and the FPAA have fought to prevent reform. This past February, when the Florida Legislature was considering its first round of fixes to the unconstitutional death-penalty statute, Jacobs urged it to push through the necessary changes and resist further reforms, in line with his belief that the death penalty is a deterrent and that jurors are “too compassionate.” As he exhorted lawmakers, “This is a real crisis in the criminal-justice system, and it’s a real crisis for the victims’ families of these terrible, terrible crimes.”
Stephen Harper, a professor of law at Florida International University, emphasizes that Jacobs and the FPAA are quite simply behind the times. “For 35 years,” Harper said, “the FPAA has had unfettered discretion on criminal-justice policy…. If you look at polling and changing demographics, I don’t think the FPAA are in touch with the attitudes of Floridians.”
Ironically, the FPAA’s brief against Ayala arguably runs counter to its members’ own interest in maximizing prosecutorial discretion. (The FPAA also ran into a bit of trouble when it turned out that large portions of its brief were plagiarized from a blog post.) David Sklansky, a law professor at Stanford University who studies the role of prosecutors, described this in an e-mail to me as “odd.” Sklansky added: “It’s also odd that they accuse [Ayala] of ‘using her own moral code’ when she spelled out, explicitly, her reasons for deciding not to seek the death penalty, and none of them had to do with ‘her own moral code.'”
Because she’s officially a member of the group, the FPAA did send the amicus brief to Ayala before filing it. She responded by e-mail:
Despite being a dues paying member of the FPAA, I am unaware of the process by which this Brief was developed…. It is beyond clear based on the timing, tone and content of this brief that you are not truly interested in my opinion but rather checking a box in the event you get asked about it later. Your complete failure in genuinely engaging with me on this matter has been deeply disappointing given what’s at stake for all of us.
When I circled back with former FPAA president Hess, he described what Ayala did as a “violation of the Constitution” and added: “If she had just kept her mouth shut and said nothing, we wouldn’t be talking…. And if she wants to change the law and run for the Legislature, I will send her $100.” When I asked about the perception of race in the dispute, he asserted that “nobody cares if she’s black, Latino, Oriental, or Asian.”
The death penalty may be Florida’s highest-profile issue concerning criminal-justice reform, but it’s not the only one on which the FPAA has been active. In 2001, Jacobs opposed legislation similar to laws existing in several other states that allow first-time drug offenders to get treatment in lieu of jail time. In a brief, he wrote that the proposed legislation violated Florida’s rules “by taking away and/or severely limiting the prosecutorial discretion of the State Prosecutors of Florida.”
In addition to opposing treatment for low-level drug offenders and DNA testing for people seeking to prove a wrongful conviction, Jacobs has consistently opposed reforms to Florida’s so-called “direct-file” policy, which currently allows prosecutors to send juveniles as young as 14 directly to adult court without a hearing. As a result of the policy, Florida sends more kids to adult prison than any other state in the country; a 2014 Human Rights Watch report also noted that more than 60 percent had been sent there for nonviolent crimes. Many states, including California, have already begun limiting this practice, based on advances in neuroscience showing that juvenile offenders should be considered less culpable for their crimes and more capable of change. Reports have also shown that people of color account for a disproportionate number of the youthful offenders sentenced as adults. (All 50 states still allow a minor to be tried as an adult after a formal judicial determination.)
Just this past summer, Jacobs called the juveniles direct-filed to be prosecuted in adult courts “bad hardened criminals that wreak havoc over the state of Florida.” He went on to claim that “Florida was rampant in juvenile crime. We had juveniles in Miami carjacking tourists’ cars and folks getting killed. At a rest stop on I-10, just east of here, we had some folks that were killed at a rest stop by some teenagers out of Tallahassee.” (Less than 3 percent of the young people direct-filed to adult court had been accused of murder.)
Even as much of the country—including conservative Florida—moves left on criminal-justice reform, Jacobs and the FPAA remain at the forefront of conservative reaction. In March, I asked Hess whether Jacobs’s own legal troubles might affect his position. Ever the Southern gentleman but noticeably annoyed, Hess went on a tirade, concluding that Jacobs could remain in office as long as the 20 state attorneys approved—and, he added, those state attorneys are “all very high-class people.” Also, Jacobs had gotten results: “He has been an excellent, excellent member of the FPAA,” Hess told me. “His performance has been exemplary.”
Louisiana, like Florida, is governed by some of the harshest criminal-justice policies in the nation. In fact, Louisiana incarcerates more people per capita than any state in the United States—which incarcerates more people per capita than any country in the world. But in 2015, Louisiana elected a governor who promised, among other things, to reform the bloated prison system and cut costs for the sorely underfunded state.
Governor John Bel Edwards, in conjunction with Pew Research, created a bipartisan panel, the Louisiana Justice Reinvestment Task Force, which included everyone from prosecutors to members of the clergy. The task force generated a report with a list of recommendations intended to reduce the size of Louisiana’s prison population, save money, and bring state law in line with other red states, such as Texas and Mississippi, that have had success with decarceration. The report gained the support of business leaders and conservatives as well as Democrats. This session, the Louisiana Legislature passed that list of sorely needed criminal-justice reforms, which included eliminating the sentence of life without parole for juveniles and allowing elderly inmates a chance at release. The reforms were projected to generate some $300 million in savings over 10 years, most of which would be invested in programs to help the people who had been released.
Enter E. Pete Adams, the executive director of the Louisiana District Attorneys Association. “We are for trying to get something done, but not at the risk to public safety,” he told a local paper. Once the legislative session started, the LDAA issued its own report opposing most of the reform recommendations. The bulk of the LDAA’s disdain was reserved for the recommendations that would have permitted some people convicted of violent felonies to have a chance at release. (Most of these concerned inmates who had already served decades in prison.) Another of Adams’s major issues was with the definition of “violent” offenders—a category in which he wanted to include some people convicted of nonviolent crimes, because, he argued, they might have had a violent past.
Will Harrell, the founder and leader of Louisianans for Prison Alternatives, argues that “the LDAA’s opposition to sensible reform is out of step with our neighboring states, the Louisiana people, and even with the honest opinion of most state legislators. Frankly,” he added, “I even believe their voice at the Legislature—Pete Adams—is out of step with the emerging leadership of the LDAA. The problem is, he’s very good at hiding the ball and spooking folks in the Legislature, and that’s why the LDAA is the most formidable obstacle to reform.” This is no exaggeration: From 2012 to 2015, criminal-justice bills backed by the LDAA had an 85 percent rate of passage in the Louisiana Statehouse, while criminal-justice bills it opposed passed only 38 percent of the time.
Hillar Moore, the ex-president of the LDAA and the lead prosecutor in East Baton Rouge Parish, spoke with me this past spring and was vehement that the LDAA wasn’t rejecting the changes outright, but rather wanted to conduct further research and suggest amendments to the bills up for debate. “We’ve made it clear that we want to work with everyone,” Moore said, but “there are some [issues] that are nonstarters for us,” including any provision to release inmates convicted of violent crimes. (For his part, Adams refused to comment for this story. I conducted my interview with Moore in April, but he wouldn’t comment further after the LDAA’s opposition paper was released.)
The association’s strategy worked: In mid-May, Governor Edwards announced that he and the prosecutors had reached a compromise. While Edwards attempted to save face by insisting that most of the original reform recommendations had been retained, many key provisions had been gutted, including one that would have eliminated sentences of life without parole for youthful offenders—something that many states have already outlawed and that the US Supreme Court has severely limited.
Adams, who is easily recognized by his bow ties and bushy gray mustache, has been the LDAA’s executive director for 40 years, representing its interests in the public eye and with the Legislature. He represents the model of old-school, tough-on-crime prosecutors. Yet even as new and younger district attorneys are elected—some of them running on a platform of reform—Adams remains in power, driving LDAA policy. The LDAA has also retained the services of a part-time lobbyist, prosecutor Hugo Holland, who was famous for putting people on death row and has been accused by advocates and higher courts for concealing exculpatory evidence in capital cases. In 2011, Holland and another prosecutor purchased machine guns and patrolled Caddo Parish, pretending to be police offers. Caddo Parish, once known for having the most death-row inmates in Louisiana, was forced to fire Holland, but Adams has kept him on the payroll.
During his tenure with the LDAA, Adams has also argued that the burden of proof necessary for conviction shouldn’t be raised; that juveniles should be tried as adults; and that wrongful convictions don’t occur in Louisiana—or at least not as many as publicized. As a representative of the LDAA, he has lobbied against eliminating the habitual-offender law, which imposes draconian sentences even on those repeatedly convicted of nonviolent crimes, and he has opposed eliminating life without parole for juveniles convicted of non-homicide crimes, a practice that was deemed unconstitutional by the US Supreme Court in 2010. He has also lobbied for stricter punishments for people who misuse Supplemental Nutrition Assistance Program benefits (i.e., food stamps).
Adams’s most passionate efforts, however, have been reserved for the beleaguered public-defender system in Louisiana, which is so underfunded that judges this past spring dismissed cases because there were no lawyers to represent the defendants. The Southern Poverty Law Center filed a lawsuit this year arguing that Louisiana’s failure to fund public defenders violated the US Constitution’s guarantee of counsel. Yet for Adams, the problem is a misallocation of funds: The public defenders, he argues, need less, not more, money. According to multiple sources, Adams meets regularly with the elected public defenders and discourages them from asking for state funding. As Adams told a local paper back in 2002: “You have well in excess of 90 percent of people who find themselves indigent and that number should bear some scrutiny. A reasonable person would question the veracity of that. The hidden assumption is that money solves all problems—I can’t answer that. They ought to begin with an analysis of how [public defenders] spend their money.” And yet Louisiana is among the poorest states in the nation, with a poverty rate of around 20 percent.
Adams’s arguments haven’t changed at all in the past 15 years, even as the public-defender system continues to get worse. Public defender Derwyn Bunton of Orleans Parish has said that the LDAA is “a very active co-conspirator in mass incarceration in Louisiana.”
Adams has even attacked the resources that public defenders need to keep up with the cases on Louisiana’s death row, a major cost. For Adams, this isn’t a problem caused by the death penalty (which Louisiana has considered eliminating but for the opposition of the LDAA and other groups); it’s the fault of the public defenders. He has argued that too much money was being “wasted” to defend people facing execution, because those funds went to larger law firms and nonprofit organizations instead of individual public defenders. (The state public defender in Louisiana has flatly declared that the notion of people “getting rich” from their work on death-penalty cases is ludicrous.)
At the same time, the LDAA has increased funding for itself without any noticeable improvement in the quality of criminal justice. Just a few years ago, for example, the LDAA requested authorization from the Legislature to establish internal debt-collection agencies to extract payments of court fines and fees from defendants—with a 20 percent premium being kept by the prosecutors. In 2016, the LDAA pushed for passage of a bill that would have authorized a private corporation to operate an automated system to read license plates and issue tickets in nine parishes statewide, with 30 percent of the proceeds reaped by district attorneys, and the remaining 70 percent being split by sheriffs, the corporation, and other parties. Prosecutors across the state also abuse what are known as “diversion fees”: unregulated monies paid to avoid prosecution. For instance, according to the office of Louisiana’s legislative auditor, which collects information reported by the parishes themselves, the 18th Judicial Circuit reported $1.19 million in diversion-fee income from just 132 participants. And according to the 2016 legislative auditor’s report, more than 30 percent of the income from the state’s district-attorney offices comes from fines and fees; in some parishes, over 50 percent of the income comes from diversion fees and tickets. Finally, Louisiana’s prosecutors are known for their own legal troubles: In 2016 alone, three of Louisiana’s 42 elected district attorneys were convicted on corruption and other criminal charges.
Even so, Louisiana’s DAs hold particular sway over public opinion as representatives of justice and experts on law and order. Flozell Daniels, who was a member of the Louisiana Justice Reinvestment Task Force and is now the CEO and president of Foundation for Louisiana, puts the state’s struggles with criminal-justice reform squarely on the backs of prosecutors, and the LDAA in particular. In a guest column for the New Orleans Times-Picayune, Daniels noted that “the District Attorney Association representative on the task force supported the overwhelming majority of the recommendations,” arguing that the LDAA is dissembling when it paints the task force’s reform recommendations as radical. And his view is supported by polling in Louisiana, which suggests that the vast majority of residents want reform, including business leaders and conservatives.
But the prosecutors persist, because they can win. As a Louisiana state senator observed when criminal-justice reform was on the table in 2012: “If you give a legislator the opportunity to go either with the Innocence Project or with their DA, guess what? They’re going to vote with their DA.”
The influence of district attorneys’ associations extends beyond the usual list of red-state suspects. In California, for example, prosecutors sued last year to prevent Proposition 57—a suite of progressive changes to the state’s criminal law, including reduced sentences—from moving forward. The California District Attorneys Association (CDAA) argued that Governor Jerry Brown violated a recently enacted law requiring a new comment period after substantial revisions. (“It’s perplexing why these DAs would deny the people of California their right to vote on this important public safety measure,” Brown said in response.) Proposition 57 is designed to decrease the state’s prison population by making more criminal charges punishable by serving time in county jail and by offering some long-serving inmates the chance to make parole earlier. The law, which voters overwhelmingly approved last November, also eliminates giving prosecutors the power to send juvenile offenders directly to adult court.
The CDAA has long opposed legislation that would result in lesser penalties, going back to the change in California’s draconian “three strikes” law in 2012. Since the passage of Proposition 57 and other laws like it, the fearmongering has reached a fever pitch, with prosecutors asserting that reducing the sentences for those convicted of nonviolent crimes would result in communities being inundated by the homeless and drug-addicted. (A representative for the CDAA refused to comment for this story, writing in an e-mail: “Most all of the prop [sic] 57 information was well Covered [sic] by the press. I’m not going to get back into it.”)
Rectifying wrongful convictions is yet another reform that prosecutors have resisted. Earlier publications by the CDAA include a 40-page rebuttal to a report by the Northern California Innocence Project showing a significant degree of prosecutorial misconduct in cases of wrongful conviction. Currently, the CDAA is requesting changes to legislation that would reduce the imposition of cash-bail requirements, which has already passed the State Senate and awaits approval in the Assembly. As the ACLU’s Udi Ofer observes, “No matter whether it’s a red state or blue state, DA associations are guided by the same principles—mainly seeking to maintain their members’ unfettered powers.”
There is also a National District Attorneys Association, which is led by Mike Freeman, the District Attorney of Minneapolis. While not officially affiliated with the state-level prosecutors’ associations, it has taken similarly aggressive stances. In September 2016, the President’s Council of Advisors on Science and Technology issued a report, “Forensic Science in Criminal Courts,” offering findings on several types of forensic evidence commonly used in courts that have now been discredited by scientists. The PCAST report found that the use of bite marks and shoe prints had no evidentiary basis. The NDAA immediately issued a rebuttal arguing that the report was “scientifically irresponsible,” even though the council was composed of many experts in their fields. The NDAA has also received a direct boost from the Trump administration: Upon taking office, Attorney General Jeff Sessions declined to renew the National Commission on Forensic Science, which was chartered under the Obama administration. The NDAA applauded the decision.
Thus far, Sessions has proved more than friendly to the interests of prosecutors’ associations, even as voters appear increasingly inclined to take the ramifications of mass incarceration more seriously. In May, Sessions issued a memorandum to federal prosecutors requiring them to “charge and pursue the most serious, readily provable offense.” This is a direct reversal of the Obama administration’s policies, which generally allowed federal prosecutors to exercise discretion in charging and sentencing. Sessions has implied much the same policy when it comes to marijuana, indicating that he will reverse the Obama administration’s policy of not interfering in states that have legalized pot use. (Sessions even once said that he supported the death penalty for pot dealers.)
While they apply only to federal prosecutors, Sessions’s directives—along with his reliance on rhetoric from the War on Drugs—have given new relevance to the words of people like Pete Adams and Buddy Jacobs, another set of throwbacks. Like Sessions, Adams and Jacobs grew up in the Jim Crow South and established their careers in the early years of the 1980s tough-on-crime era. Yet they have remained in power ever since, part of a good-old-boy system that has protected the consolidation of prosecutorial power and opposed anyone who seeks to dilute it.
Already, Sessions has toured multiple cities that he has deemed “violent” to provide backing for those prosecutors willing to come down hard on groups of people—such as gang members and undocumented immigrants—who are easy to isolate and already have a negative profile. Baton Rouge is among the 12 cities that Sessions chose as part of his fledgling initiative (Chicago and Baltimore didn’t make the list). The rhetoric of Sessions and his boss, Donald Trump—depicting a scourge of black and brown people overtaking urban areas—makes the efforts of reform-minded prosecutors like Ayala more difficult, even as it emboldens hard-liners. District attorneys’ associations may be championing the criminal-justice policies of the past, but under Trump’s administration, they could enjoy a new lease on life.
