Christopher Smith/The New York Times/Redux
Black Women Prosecutors Under Fire

Reform-minded prosecutors—especially Black women—face pushback

There has been a rise in the number of reform-minded prosecutors elected into office on promises to change what they see as a broken criminal justice system that overincarcerates and metes out punishments unfairly.Sam Reisman, “The Rise of the Progressive Prosecutor,” Law360, April 7, 2019, https://perma.cc/N4AY-4JLH.But with that rise has come another: opposition to their agendas. In particular, a group of Black women prosecutors—after being elected across the nation on progressive platforms that included getting rid of money bail, declining to prosecute low-level crimes and marijuana cases, and exposing police misconduct—have faced resistance from law enforcement, judges, and even governors.Mark Berman, “These Prosecutors Won Office Vowing to Fight the System. Now, the System is Fighting Back,” Washington Post, November 9, 2019, https://www.washingtonpost.com/national/these-prosecutors-won-office-vowing-to-fight-the-system-now-the-system-is-fighting-back/2019/11/05/20d863f6-afc1-11e9-a0c9-6d2d7818f3da_story.html.

In 2019, the pushback has been strong and public. In September, Maryland Governor Larry Hogan directed state Attorney General Brian Frosh to independently prosecute violent crimes in Baltimore, noting in a letter that “far too often in Baltimore City, violent offenders get a slap on the wrist and are released back onto the streets to commit yet another violent offense.”Letter from Governor Larry Hogan to Attorney General Brian Frosh re: Baltimore City Crime Investigations and Prosecutions, September 18, 2019, https://perma.cc/696C-DEK3; and Mike Hellgren, “‘Let’s Talk Real Solutions’: Mosby ‘Stunned’ by Hogan’s Latest Crime Plan,” WJZ-13, September 19, 2019, https://perma.cc/DLE6-VAK7.(Frosh, who pointed out that his office is not designed or staffed to prosecute these cases, responded with a request for 30 new staff members—and Hogan found room for 25 in his proposed budget.Marilyn Mosby, “Maryland Gov. Hogan’s Crime Proposals Are Ineffective and Undemocratic,” Washington Post, December 19, 2019, https://www.washingtonpost.com/opinions/2019/12/19/maryland-gov-hogans-crime-proposals-are-ineffective-undemocratic/. For Frosh’s statements, see Hellgren, “Let’s Talk Real Solutions,” 2019; and letter form Brian Frosh, attorney general of Maryland, to Governor Lawrence Hogan, October 28, 2019, https://perma.cc/MX6N-MBXZ. For the decision to fund 25 new staff positions, see Office of Governor Larry Hogan, “Governor Hogan Announces New Initiatives and Legislation to Address Violent Crime,” press release (Annapolis, MD: Office of Governor Larry Hogan, December 11, 2019), https://perma.cc/E8LF-CXLP.)

Hogan was taking aim at Baltimore prosecutor Marilyn Mosby.For a brief description of the strained relations between Mosby and Governor Hodges, see Jamila Hodge, “Governors Should Embrace—Not Hinder—Reform-Minded Prosecutors,” Vera Institute of Justice, October 1, 2019, https://perma.cc/6HVM-6BU7.Mosby, who drew ire in 2015 for prosecuting the officers involved in the death of Freddie Gray, had made headlines earlier in 2019 for announcing that she wouldn’t prosecute marijuana possession cases.Lulu Garcia-Navarro, “Baltimore State's Attorney Will No Longer Prosecute Marijuana Possession Cases,” NPR, February 3, 2019, https://perma.cc/JH3T-QDT2; Office of the State’s Attorney for Baltimore City, “Baltimore State’s Attorney Marilyn Mosby To Stop Prosecuting Marijuana Cases, Says Prosecutions Provide No Public Safety Value And Undermine Public Trust In Law Enforcement,” press release (Baltimore, MD: Office of the State’s Attorney for Baltimore City, January 28, 2019),https://perma.cc/S63G-RKZB; Melba Pearson, “More Women of Color Are Getting Elected as District Attorneys, But Can They Stay There?” Essence, June 24, 2019, https://perma.cc/KJR9-K3E6; and Wil S. Hylton, “Baltimore vs. Marilyn Mosby,” New York Times Magazine, September 28, 2016, https://www.nytimes.com/2016/10/02/magazine/marilyn-mosby-freddie-gray-baltimore.htmlThroughout her tenure, Mosby has been committed to exonerating people—often Black men—who have been wrongfully convicted, and in 2019, she testified in support of legislation that expands pre- and post-conviction review options for prosecutors.For exonerations, see for example Office of the State’s Attorney for Baltimore City, “Double Exoneration: Baltimore Brothers Released from Prison after Serving 25 Years,” press release (Baltimore, MD: Office of the State’s Attorney for Baltimore City, May 3, 2019), https://perma.cc/XR4N-37DK; and Office of the State’s Attorney for Baltimore City, “Free After 36 Years: Marilyn Mosby Exonerates Three Men Imprisoned Since 1983 For A Crime They Didn’t Commit,” press release (Baltimore, MD: Office of the State’s Attorney for Baltimore City, November 25, 2019), https://perma.cc/ZG53-84PD. For legislation, see Maryland HB 874; and Office of the State’s Attorney for Baltimore City, “State’s Attorney Mosby Testifies in Support of Legislation that Would Provide Prosecutors with Tools to Seek Justice for Unfairly or Wrongly Convicted Individuals,” press release (Baltimore, MD: Office of the State’s Attorney for Baltimore City, February 27, 2019), https://perma.cc/N3EL-HERP.

In Cook County, Illinois, prosecutor Kim Foxx has been under the microscope since shortly after she was elected in 2016, when she announced she would not prosecute shoplifting as a felony unless the items stolen totaled more than $1,000 or the person charged with shoplifting had at least 10 prior felony convictions.Steve Schmadeke, “Top Cook County Prosecutor Raising Bar for Charging Shoplifters with Felony,” Chicago Tribune, December 15, 2016, https://perma.cc/HDV4-849H.She also vowed to bring more accountability to shootings by police, has declined to prosecute low-level drug offenses, and has encouraged prosecutors in her office not to seek money bail for people accused of low-level, nonviolent offenses.Matt Daniels, “The Kim Foxx Effect: How Prosecutions Have Changed in Cook County,” The Marshall Project, October 24, 2019, https://perma.cc/5ZE4-V6EY; Craig Dellimore, “At Issue: Dem Challenger Says Public Has Lost Faith in Kim Foxx,” WBBM Newsradio, November 8, 2019,https://perma.cc/8DNB-PLKF; and Tom Jackman, “In Some Big Cities, Reform-Minded Prosecutors and Police Chiefs Have Been at Odds. Here’s What Happened When They Met in D.C.,” Washington Post, July 17, 2019, https://www.washingtonpost.com/crime-law/2019/07/17/prosecutors-launch-reforms-police-chiefs-convene-national-summit-dc-with-district-attorney-counterparts/.

In 2019, Foxx faced backlash from police unions for her handling of the Jussie Smollett case. After her office dropped charges against Smollett, who was accused of staging his own hate-crime attack to draw media attention, a special prosecutor was tapped to investigate possible wrongdoing by Foxx’s office.A.D. Quig, “Dan Webb Tapped to Handle Special Prosecution of Jussie Smollett Case,” Crain’s Chicago Business, August 23, 2019, https://perma.cc/PZG2-UTFV.In April, the Chicago Fraternal Order of Police demanded Foxx’s resignation, citing her policies that, the union said, allow people back on the streets to commit new crimes.Daniels, “The Kim Foxx Effect,” 2019.The union also criticized Foxx for how her office deals with cases of officer misconduct—Foxx has exonerated more than 60 people, saying that her office had “[lost] confidence in the initial arrests and validity of these convictions” after the arresting officers were convicted of bribery in a separate case.Ibid.; Christine Hauser, “‘A Stain on the City’: 63 People’s Convictions Tossed in Chicago Police Scandal,” New York Times, February 13, 2019, https://www.nytimes.com/2019/02/13/us/chicago-exonerations-drug-sentences.html; and Elyssa Cherney, “Chicago Police Union President Renews Criticism of Kim Foxx, Says She ‘Needs to Step Down’ If She Can’t Do Her Job,” Chicago Tribune, April 30, 2019,https://perma.cc/3J29-EKQJ.

In July, Foxx joined Chicago Police Superintendent Eddie Johnson at a national summit in Washington, DC, where big-city police chiefs and progressive prosecutors from 10 jurisdictions tried to work through their differences.Jackman, “Reform-Minded Prosecutors and Police Chiefs,” 2019.The summit produced a statement of key principles, including this: police and prosecutors should collaborate in advance of enacting criminal justice reforms.Ibid.; and “Police Chiefs and Prosecutors: Statement of Key Principles,” Washington Post, July 16, 2019, https://www.washingtonpost.com/context/police-chiefs-and-prosecutors-statement-of-key-principles/9f38217b-d340-4863-b130-c40b79a81e71/.But the accusations that under Foxx the Cook County State’s Attorney’s Office is lax in prosecuting crimes have been rising back into the media since Foxx announced plans in November to seek reelection.Matt Masterson, “Cook County State’s Attorney Kim Foxx Will Seek Re-Election in 2020,” WTTW, November 19, 2019, https://perma.cc/K6QL-JELH.

In Florida, prosecutor Aramis Ayala announced in May that she would not run for reelection.Sarah Wilson, “‘Time for Me to Move Forward’: State Attorney Aramis Ayala Won’t Run for Re-Election,” WFTV-9, May 28, 2019, https://perma.cc/6VDR-BZW5; and Monivette Cordeiro, “Seminole-Brevard Top Prosecutor Phil Archer Endorses Ryan Williams for Orange-Osceola State Attorney,” Orlando Sentinel, November 22, 2019,https://perma.cc/K6DE-3S6M.Ayala, the first Black state attorney in Florida history, was elected on a progressive platform and, shortly after taking office in 2017, announced that she would not seek the death penalty in cases handled by her office.Katie Mettler, “Florida Prosecutor Refuses to Seek Death Penalty for Alleged Cop Killer, Defies Gov. Rick Scott’s Order to Step Aside,” Washington Post, March 21, 2017, https://www.washingtonpost.com/news/morning-mix/wp/2017/03/21/floridas-first-black-prosecutor-a-death-penalty-boycotter-defies-gov-rick-scott/.Then-Governor Rick Scott swiftly reacted, reassigning 29 capital cases from Ayala’s office.Cordeiro, “Seminole-Brevard Top Prosecutor Phil Archer,” 2019.Ayala sued Scott, challenging the governor’s power to reassign cases to a different judicial district, but lost in the state’s Supreme Court.Andrew Cohen, “Reformist Prosecutors Face Unprecedented Resistance from Within,” Brennan Center for Justice, June 19, 2019, https://perma.cc/9BS7-CKR7; and Bernie Woodall, “Florida Supreme Court Sides with Governor in Squabble Over Death Cases,” Reuters, August 31, 2017, https://perma.cc/445L-XK6V.

But some of the most extreme backlash has been directed toward St. Louis, Missouri, Circuit Attorney Kimberly Gardner, the city’s first Black top prosecutor, who has been scrutinized in a manner that the New York Times wrote “is virtually unheard-of for an elected prosecutor.”Joel Currier, “As Jennifer Joyce Hits the Road, Kim Gardner Takes Over as St. Louis’ First Black Circuit Attorney,” St. Louis Post-Dispatch, January 4, 2017, https://perma.cc/BVY6-ATAH; and Richard A. Oppel Jr., “The St. Louis Prosecutor Went After the Establishment. Now the Tables Are Turned,” New York Times, June 14, 2019, https://www.nytimes.com/2019/06/14/us/st-louis-prosecutor-kim-gardner.html.In fact, in January 2020, Gardner filed a federal civil rights lawsuit against the City of St. Louis and its police unions, detailing what has been described as the unprecedented and shocking racist conspiracy to push her out of office and violate the rights of Black and minority communities.Gardner v. City of St. Louis, No. 4:20-cv-00060 (E.D. Mo. January 13, 2020), https://perma.cc/HPS4-SC2W; Eli Hager and Nicole Lewis, “Facing Intimidation, Black Women Prosecutors Say: ‘Enough’,” The Marshall Project, January 16, 2020, https://perma.cc/3JAK-JJV9; and Richard Oppel, “Prosecutor Sues Her Own City Under a Law Passed to Fight the K.K.K.,” New York Times, January 13, 2020 (updated January 15, 2020), https://www.nytimes.com/2020/01/13/us/st-louis-circuit-attorney-kim-gardner.html.

Gardner angered the St. Louis Police Officers Association by bringing charges against more than a dozen officers and declining to accept cases that relied on accounts from more than two dozen officers on her “exclusion list” whose credibility had been called into question.Oppel, “The St. Louis Prosecutor Went After the Establishment,” 2019.She also prosecuted the then-sitting governor of Missouri, Eric Greitens, on a charge of felony invasion of privacy.Mitch Smith and John Eligon, “Gov. Eric Greitens of Missouri Indicted on Invasion of Privacy Charge,” New York Times, February 22, 2018, https://www.nytimes.com/2018/02/22/us/eric-greitens-indicted.html.Not long after, she became the focus of a special prosecutor’s investigation, accused of withholding evidence and manipulating testimony after failing to turn over a requested recording for several weeks.Ibid.; and Oppel, “The St. Louis Prosecutor Went After the Establishment,” 2019.After the recording in question was salvaged—Gardner has said she did not initially turn it over because she believed it could not be used—it was found to contain no additional information. The special prosecutor then directed police to seize her office’s email server, which contained information about active investigations.Oppel, “The St. Louis Prosecutor Went After the Establishment,” 2019.

In September, the St. Louis police union called on Gardner to resign, and she and fellow Black prosecutor Wesley Bell of St. Louis County were not invited to a September meeting about crime with Missouri Governor Mike Parson, the mayor, and the police chief.Jenna Barnes, “Circuit Attorney Kim Gardner Responds to Call for Her to Resign,” St. Louis Business Journal, September 12, 2019, https://perma.cc/AQ65-4MD3.Gardner also received pushback from the Missouri Attorney General’s Office when her office asked to set aside the 1995 murder conviction of Lamar Johnson, a man serving life in prison without the possibility of parole for a crime prosecutors now believe he may not have committed.Rebecca Rivas, “Schmitt Blocking New Trial for Lamar Johnson,” St. Louis American, December 10, 2019, https://perma.cc/MB8S-R35C.In August, the Attorney General sought to block court review, filing a brief in the case claiming that the district attorney’s office had no authority to ask the court to reopen it.Missouri v. Lamar Johnson, No. 22941-03706A-01 (Circuit Ct. City of St. Louis, filed August 15, 2019) (Response to Court Order by Attorney General Eric S. Schmitt), https://perma.cc/Q9KQ-5NW6.

Suffolk County, Massachusetts, District Attorney Rachael Rollins has also faced challenges to her authority. Rollins was the first Black woman elected to her position and, after she took office, she outlined a slate of upcoming changes, including her decision to not prosecute 15 minor offenses, such as drug possession and shoplifting.“DA Rollins Fires Back after Critique by Gov. Baker,” WCVB, April 5, 2019, https://perma.cc/DC9Z-DGH2. For the policy memorandum, see Rachael Rollins, The Rachael Rollins Policy Memo (Boston, MA: Office of the Suffolk County District Attorney, 2019), https://perma.cc/JB5E-8D4L.In response, the Boston police union and a fellow district attorney claimed her policies could hurt the state’s efforts to address the opioid epidemic.Mark Berman, “These Prosecutors Won Office Vowing to Fight the System. Now, the System is Fighting Back,” Washington Post, November 9, 2019, https://www.washingtonpost.com/national/these-prosecutors-won-office-vowing-to-fight-the-system-now-the-system-is-fighting-back/2019/11/05/20d863f6-afc1-11e9-a0c9-6d2d7818f3da_story.htmlOther male prosecutors questioned her ideas.Ibid.; and Michael D. O’Keefe, “The True Role of the District Attorney,” Boston Globe, May 28, 2019, https://perma.cc/DS8J-8S2P.Massachusetts Governor Charlie Baker said her plan would make Suffolk County more dangerous.“DA Rollins Fires Back,” WCVB, 2019.And, after she declined to prosecute counterprotesters at a “Straight Pride Parade” for disorderly conduct, a judge attempted to usurp her authority by continuing the prosecution.Berman, “These Prosecutors Won Office,” 2019.Rollins eventually won a judgment saying that the judge had improperly intervened in the case.Commonwealth v. Webber, No. SJ-2019-0366 (Mass. October 24, 2019), https://perma.cc/P9P2-QM9D.But Rollins, who won with 80 percent of the vote, is not without her supporters: the Boston Globe named her one of its “Bostonians of the Year.”Neil Swidey, “Meet the 2019 Bostonians of the Year: Andrew Lelling and Rachael Rollins,” Boston Globe, December 11, 2019, https://www.bostonglobe.com/2019/12/11/magazine/meet-2019-bostonians-year-andrew-lelling-rachael-rollins/; and PD43+ Massachusetts Election Statistics, “2018 District Attorney General Election: Suffolk County,” https://perma.cc/U9M3-3DED.

Black women aren’t the only prosecutors facing a backlash from law enforcement officials and lawmakers. But with so many Black women facing pushback, the race- and gender-targeted nature of the attacks has drawn media attention.Cohen, “Reformist Prosecutors Face,” 2019; Pearson, “More Women of Color,” 2019; and Berman, “These Prosecutors Won Office,” 2019.Other progressive prosecutors, though, have also experienced resistance to their agendas.

  • Dallas, Texas, District Attorney John Creuzot, who declared he wouldn’t prosecute people for minor nonviolent crimes that are committed out of necessity—like shoplifting—has been the subject of police press conferences and gubernatorial tweets claiming he is a “socialist” who will “allow the common criminal to feast on the business retail community”;
  • San Antonio, Texas, District Attorney Joe Gonzales has vowed not to pursue criminal trespass charges for people without housing, a decision the police union called “a total abdication of a D.A.’s responsibility”;
  • Philadelphia, Pennsylvania, District Attorney Larry Krasner faced fallout in July from his decision not to prosecute some cases (like low-level marijuana offenses) when legislators added a Philadelphia-specific provision to a bill giving the state attorney general concurrent jurisdiction over certain gun-related crimes—crimes that Krasner’s office has not yet declined to pursue; and
  • St. Louis County, County Prosecutor Wesley Bell, a Black former public defender and criminal justice professor, came under fire from media and former colleagues for terminating three assistant prosecutors—one had tagged him in inappropriate remarks about the office on Facebook and another has been accused of “prosecutorial vindictiveness” after filing additional charges against a man who, after refusing a guilty plea, was acquitted of the original charges.Christopher Hooks, “Attacks on the Dallas DA Signal Trouble for the Criminal Justice Reform Movement,” Texas Monthly, April 23, 2019, https://perma.cc/E5UD-2ZLR; Joe Gonzales for District Attorney, “About Joe,”https://perma.cc/BK3Z-LYVD; Pennsylvania HB 1614 (2019),https://perma.cc/92WV-VX9E; Michael Tanenbaum, “New Law Gives Pa. Attorney General Power to Prosecute Gun Cases, https://perma.cc/WC9V-9QKE; Danny Wicentowski, “Assistant County Prosecutor Laments Bell Victory: ‘Voters Will Soon Regret What They Did,’” Riverfront Times, August 22, 2018,https://perma.cc/T3K5-AFRV; Joel Currier, “Third Prosecutor Forced Out by Wesley Bell Gets $70,000 Settlement with St. Louis County,” St. Louis Post-Dispatch, August 24, 2019, https://perma.cc/FNZ9-U3RW; and Berman, “These Prosecutors Won Office,” 2019.

The issue has gone as high up as the Trump administration, with U.S. Attorney General William Barr in an August speech to a police group calling progressive prosecutors “anti-law enforcement” and “dangerous to the public safety.”U.S. Department of Justice (DOJ), “Attorney General William P. Barr Delivers Remarks at the Grand Lodge Fraternal Order of Police’s 64th National Biennial Conference,” press release (Washington, DC: DOJ, August 12, 2019), https://perma.cc/RN3H-R6SY.And Deputy Attorney General Jeffrey Rosen took aim at progressive prosecutors as well in an editorial calling their policies “a misguided experiment in ‘social justice reform.’”Jeffrey A. Rosen, “‘Social Justice Reform’ Is No Justice at All,” Washington Post, November 27, 2019, https://www.washingtonpost.com/opinions/social-justice-reform-is-no-justice-at-all/2019/11/27/139dff76-109b-11ea-b0fc-62cc38411ebb_story.html.But on a local level, many voters remain committed to the idea that justice reform is a prosecutor’s job. In November, for example, Chesa Boudin was elected San Francisco’s next district attorney.Derek Hawkins, “Progressive Lawyer Wins San Francisco District Attorney Race, Continuing National Reform Trend,” Washington Post, November 9, 2019, https://www.washingtonpost.com/nation/2019/11/10/progressive-lawyer-wins-san-francisco-district-attorney-race-continuing-national-reform-trend/.Boudin, a former deputy public defender, has vowed to confront police misconduct and reduce mass incarceration.Ibid.