Even if you have not had direct contact with the criminal justice system, you’ve likely picked up on activist and policymaker talk about a radical rethinking of justice. Strategies include ending mandatory minimum sentencing, money bail and relying on private prisons to reduce out-of-control prison populations while enriching shareholders.
In Memphis, organizations like Just City keep our eyes turned to problems in our local administration of justice and press for holistic solutions to racial disparities in our juvenile court system. Despite an increase in public attention to these issues, we are forgetting to look at one absolutely crucial piece of the criminal justice reform puzzle: the district attorney.
Nationally, and right here in Tennessee, district attorneys operate with nearly limitless discretion, almost entirely sheltered from public scrutiny because we know very little about them and what they do.
Or, as John Oliver put it on HBO’s “Last Week Tonight,” “Most people know as much about their local DA as they know about their local Cheesecake Factory manager. Chances are you don’t know who they are, and if you do it’s probably because something truly terrible has happened.”
Yet we are the only nation in the world that elects prosecutors because we believe the people should pick their public servants, and elections give us a chance to replace them if we are not satisfied with the job they are doing. In theory, this is great. However, accountability through elections is difficult when voters are uninformed, don’t vote in local elections and prosecutors run unopposed.
Oh, how little we know
Opinion polls show the public knows very little about crime data. We tend to assume crime is worse than it actually is. Frankly, local TV news contributes to a false picture by overemphasizing crime stories and conflating local crime with acts committed elsewhere.
Even when crime is steadily decreasing, people will say they believe crime rates are going up, research shows. This helps explain why a majority-black, overwhelmingly Democratic city keeps electing white, Republican, “tough-on-crime” district attorneys. The people who turn out to vote are worried about crime rates they often wrongly think are spiraling out of control. Erring on the side of caution, they elect someone who promises to be tough.
If voters prefer district attorneys who are “tough on crime,” and district attorneys want to win elections, it is in their interest to avoid being seen as soft. This can lead to what political scientists call an “electoral proximity effect” or “political business cycle,” in which incumbent policymakers alter their behavior or priorities as elections approach to win voter favor. DAs can use their discretion to appear tougher on crime leading up to their own elections: Alas, this is not simply a “Law & Order” plot, it is real. My preliminary research on electoral proximity effects in district attorney elections in Tennessee confirms this.
DAs can do (basically) whatever they want
District attorneys have in immense amount of discretion to determine policies and priorities of their office. With limited resources, DAs are not able to prosecute every offense, so they use their discretion to make those decisions on a case-by-case basis. Typically, there are far more arrests than dispositions, like whether to drop charges, strike a plea deal or go to trial.
For example, from July 1, 2015 to June 30, 2016 115,738 arrests were reported from law enforcement agencies in Shelby County, according to the Tennessee Bureau of Investigation. In that same period, the district attorney’s office took action on only 25,267 felony-level criminal filings, or about 22 percent of arrests.
After deciding what cases to pursue, DAs have several options, including going to trial, making a plea deal and dismissing charges. DAs, everywhere, pursue plea deals more often than they go to trial.
“While there are no exact estimates of the proportion of cases that are resolved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal and state court cases are resolved through this process,” according to the Bureau of Justice Statistics.
If we look at Shelby County data from July 1, 2015 to June 30, 2016, we find that for the 25,267 criminal dispositions, the district attorney’s office dismissed 10,891 charges. Of the remaining 14,376 charges, the DA’s office went to trial 544 times (3.7 percent of the time), while they entered plea deals, as-charged or for lesser charges, 8,861 times, or 62 percent of the time.
Additionally, if a district attorney believes it is in the community’s best interest, they may use their discretion to alter their priorities. For example, in 2014, Brooklyn, New York, DA Kenneth Thompson directed his office to stop prosecuting certain low-level marijuana offenses, citing the need to focus on violent offenders and to “improve the administration of justice, not merely to convict.”
In 2015, Davidson County DA Glenn Funk instructed his office not to file charges for driving with a revoked license if the license was revoked for something other than an arrest for driving under the influence of alcohol or drugs. His reasoning: If someone lost their license for not paying child support, for example, and found to be driving with no license, they should not be sent to jail but offered the opportunity to get a new license, and continue working and driving legally.
Discretional privilege for political gain
With little oversight, high levels of discretion and regular partisan elections, district attorneys can change their behavior or priorities as their own elections approach. This may be the case in Tennessee, according to my preliminary research on the political behavior of district attorneys. I find that DAs are, on average, slightly more punitive — they go to trial more, pursue plea deals more and dismiss fewer charges — in election years than in non-election years.
And, while we like to think our criminal justice system is built on principles of fairness and equality, we have to remember district attorneys are politicians who want to get re-elected. I did a quick study on Tennessee’s 31 judicial districts to see if there were any correlation between the share of votes for President Donald J. Trump in 2016 and district attorney punitiveness in 2017.
Indeed, there is.
For most districts (with the exception of the four, largest, single-county districts of Knox, Hamilton, Shelby and Davidson), the higher the Trump vote in the district, the more punitive the district attorney. This is only a correlation, so we need to be mindful there could be other important factors we’re neglecting: But this could indicate that voters’ political preferences matter to their district attorney. That should be a good thing, right? The voters want a tough prosecutor, and that’s what they got.
One astounding takeaway is just how different these districts are from one another when it comes to punitiveness in general. Shouldn’t the same crime receive the same punishment no matter where you live in Tennessee? If justice were blind, if politics didn’t matter in the administration of justice, then all of the dots on this graph would fall on a single horizontal line — punitiveness would be the same no matter who the voters preferred in the 2016 presidential election, no matter which part of the state you call home.
Now you see it, what to do about it
Once we see district attorneys as politicians with nearly unlimited discretion to work for or against our best interests, it becomes clear we need to be informed and we need to participate in these elections. Unfortunately, Tennessee ranks 49th in the nation in voter turnout.
Additionally, DAs rarely have election challengers, which means many voters don’t even have an alternative candidate to support. Of 31 district attorneys in office in 2006, 16 were re-elected in 2014, according to Tennessee Secretary of State. Eleven of those were unopposed in their 2014 general election.
Want to know who is paying attention to DA elections in Tennessee? Republicans. While Tennessee is now a strong Republican state, it wasn’t always. In 2006, the state re-elected Democratic Gov. Phil Bredesen along with 13 Democratic district attorneys. In 2006, among Tennessee’s 31 district attorneys, there were 13 Democrats, 13 Independents and five Republicans. Eight years later, the state elected GOP Gov. Bill Haslam for a second term, and Republicans won a majority of district attorney seats — moving from five Republican district attorneys in 2006 to 17 in 2014, leaving five remaining Democrats and nine Independents.
Recently, national organizations like the American Civil Liberties Union Campaign for Smart Justice, the Real Justice PAC, PICO Network, Color of Change and Live Free have turned their attention to district attorney races. The hope is to elect criminal justice reform-minded prosecutors who will use their discretion to stop prosecuting low-level drug offenses, champion prevention and rehabilitation programs, and pursue other alternatives to incarceration.
Nationally, this approach is on target so far with the election of progressive DAs from Texas and Kansas to Chicago and Philadelphia. Could this be a sign of what’s to come in Memphis?
If we look at Shelby County DA Amy Weirich’s behavior, the answer is — maybe. The Tennessee Supreme Court’s overturning of Noura Jackson’s 2015 conviction for killing her mother and subsequent private reprimand of Weirich for professional misconduct were both highly publicized locally and nationally — the latter sparking a “tweet storm” from Weirich accusing The New York Times of being “pro-crime.”
The Fair Punishment Project also ranked Weirich #1 in the state for prosecutorial misconduct.
Perhaps sensing changing winds as we approach her next election in 2022, Weirich followed in the footsteps of Democratic DA Glenn Funk of Nashville and altered her stance on prosecuting drivers with suspended licenses.
In a recent opinion piece, fittingly titled “The Changing Role of the District Attorney,” Weirich describes herself as a DA who will “speak for victims when no one else will” and who is actively working on reducing recidivism rates.
This may just be political posturing for the re-election cycle in a district that is straightening up to pay attention to what she’s doing now more than ever. This district is putting an increased emphasis on criminal justice reform and recently elected a record number of Democrats and women of color to local offices.
In August 2018, Shelby County voters showed up at the polls in record numbers. Whether you call it a blue wave or not, if this level of interest in local elections continues for a few more years, Shelby County could elect a reform-minded district attorney in 2022. An added bonus would be electing the first African-American district attorney in Tennessee — removing us from the disgraceful short list of states with all white district attorneys.
This is not an endorsement of any particular candidate but an impassioned plea for folks to get familiar with district attorneys, what they do, and to understand why they are, arguably, one of the most powerful and, unfortunately, most ignored elected officials on the ballot.
Emily Fulmer is pursuing a master’s degree in political science at the University of Memphis, and this research is part of her graduate thesis. Fulmer has served as an adjunct professor in religion and philosophy at Christian Brothers University.
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