Spotlighting eagerness to elect state judges as well as prosecutors committed to criminal justice reform
This new Atlantic article, headlined "The Search for Progressive Judges," highlights how activists who have sought to elect a new wave of progressive prosecutors are now turning attention to judicial elections. Here are excerpts:
It used to be unheard of for Philadelphia judges to reject a negotiated sentence in these resentencings — until Larry Krasner, arguably the most progressive prosecutor in the country, took over the city’s district attorney’s office in January 2018 and started delivering on a promise to minimize incarceration. In response, several Philadelphia judges have shut down his attempts to keep people out of prison or release them earlier.... Recently, some judges reportedly declined to consider an initiative, developed by Krasner, to seek shorter probation sentences.
After watching these developments with growing dismay, Rick Krajewski, an organizer for a leftist political group called Reclaim Philadelphia, convened about 30 Philadelphia activists in January at the offices of a prisoner-advocacy organization to float a radical proposal. Many of them had been instrumental in getting Krasner elected. But clearly, electing a progressive prosecutor hadn’t been enough. This time, Krajewski wanted to persuade them to spearhead a rare grassroots campaign for the typically sleepy judicial race....
Krasner, elected in 2017, came to office during a nationwide wave of reform-minded prosecutors: In Houston, Chicago, Brooklyn, and other left-leaning cities, prosecutors have been winning races on platforms to end mass incarceration. A prosecutor has tremendous sway when, for example, suggesting bail, negotiating plea agreements, and recommending sanctions for parole and probation violations. But judges and magistrates have the final say — and their decisions have been thrown into relief in jurisdictions that have elected reformist prosecutors. “What we are seeing is that the judges are deciding to take it upon themselves to be the obstacle for a progressive district attorney,” says Robert “Saleem” Holbrook, a former juvenile lifer who now works as a policy adviser at Amistad Law Project, a prisoner-rights advocacy organization.
Recently, justice-reform advocates in a couple of other places have also turned their eye to judges. In Harris County, Texas, which includes Houston, voters swept out the old guard to completely flip all 59 contested seats in civil, criminal, family, juvenile, and probate courts from Republican to Democrat; the new judges are preparing to stop detaining people accused of low-level crimes who aren’t able to post cash bail. Organizers in Texas are starting to scout for judicial candidates in Bexar County, which includes San Antonio, and in Dallas County, who support scaling back the use of cash bail.
In theory, judges should be impartial arbiters of justice, motivated by the law rather than politics. Since the birth of America, legal scholars and politicians have debated the best method to create an independent judiciary: Should it be elected, or appointed by other elected officials? That question has yet to be resolved, and currently each state institutes its own system for choosing local judges. However, the majority — 87 percent as of 2015 — of state-court judges are elected officials. “I think that the overwhelming majority of judges are trying to do their jobs in good faith,” says Alicia Bannon, the deputy director for program management of the Democracy Program at New York University’s Brennan Center for Justice, “but those political pressures are real.”
Historically, that pressure has been applied by advocates for a more punitive justice system. The authors of a 2015 Brennan Center study analyzed television ads for judicial candidates nationwide and found that an increasing number of ads focused on how harshly the candidate would punish bad actors: In 2013 and 2014, a record 56 percent of campaign ads lauded tough-on-crime records or lambasted opponents for being soft. In the past, advocates on the left have lamented how these political pressures have influenced judges.
Now, the progressive activists in the Philadelphia election, and the ones in Texas, are unapologetically supporting judges whose politics align with their own. The primary election on May 21, rather than the actual election in the fall, will essentially determine who will win the judgeships, since the city’s electorate votes overwhelmingly for Democrats, leaving Republican candidates with little chance of victory. The primaries are technically partisan, but only one Republican is running. “The reality is no matter how you pick judges, they are going to be political,” says Jed Shugerman, a Fordham law professor who wrote The People’s Courts: Pursuing Judicial Independence in America. In today’s political climate, he says, progressive groups can have significant influence in left-leaning cities.
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