A record number of women of color have been elected to District Attorneys positions in the past four years. In 2014, a Women Donor Network study found that 95% of elected prosecutors were white, with 79% being white men. Since that study was released, African American women have been elected as District Attorneys in major metropolitan cities like Orlando, St. Louis, Chicago, Boston, and New York.
Now that they are in office – are the standards the same for them as their white male counterparts? There has been great discussion about the wide latitude prosecutors have to exercise their discretion; do African-American female top prosecutors have that same level of freedom?
Some of the newly elected were able to unseat long term incumbents, running on bold, progressive platforms. Inevitably, this places them on a collision course with the “old guard” establishment. Often police unions push back against reforms that increase transparency and accountability for officers who use excessive force. This shows itself in vocal criticism and backlash. African American prosecutors have been the subject of intense ire, not seen before in history.
For example, Philadelphia District Attorney Larry Krassner who ran on a progressive platform in 2016, appears to be relatively unscathed — even though he ran heavily on a police reform agenda. However, to the south, Baltimore State’s Attorney Marilyn Mosby prosecuted the officers involved in the death of Freddie Gray. Not only did she face death threats and abuse, but she was also the subject of a lawsuit for wrongful prosecution.
Prosecutors are immune from lawsuits if they acted lawfully in their official capacity, but clearly, this was filed to send a message. In St. Louis, State Attorney Kim Gardner prosecuted former Missouri governor Eric Greitens for several felony charges. She is now the subject of a grand jury investigation — although on its face, it appears she complied with her obligations to turn over all evidence to Greitens’ defense counsel. Lastly, Kim Foxx used her discretion to negotiate a plea deal in a media case. As a result, two majority white district attorneys associations issued statements against her — which is virtually unheard of unless the district attorney was convicted for criminal activity (see the prosecutorial misconduct in the Duke lacrosse sexual assault case).
The Coffee County (Tennessee) District Attorney wrongfully refused to prosecute domestic violence crimes involving the LGBT community, stating that he was elected as a “good Christian”. However, when Orlando area State Attorney Aramis Ayala decided to use her discretion to pursue life in prison rather than the death penalty for 1st-degree murder cases in her jurisdiction, she faced a noose sent to her office – an act of racial terrorism – and stiff backlash. In the same vein, DeKalb County District Attorney Sherry Boston used her discretion in deciding not to prosecute doctors who perform abortions or women who seek them as a result of the recent “heartbeat” bill that passed in the Georgia legislature; she faced stiff criticism from a white Acting District Attorney in a neighboring county, who went so far as to compare her actions to that of the Nazis and the Ku Klux Klan.
It’s clear that the progressive platform rubs the establishment the wrong way. However, the voters elect a District Attorney to use discretion in what cases are filed, what penalties are sought, and where resources should be allocated. The expectation is that the elected prosecutor act in the best interest of the community. If the District Attorney is harming the community or does not reflect the values of the community that they serve, they should be voted out of office. An elected official must not be systematically prevented or hindered from doing his/her job — and the public should take note of this when it is time to go to the ballot box. When determining whether or not elected prosecutors fulfilled their campaign promises of reform, voters must also examine if there were establishment officials who refused to honor the will of the voters. In some areas, achieving true criminal justice reform may require a wholesale housecleaning by the voters, electing progressive mayors, commissioners, police chiefs, and judges.
Hopefully, these attacks do not result in a chilling effect on diversity within the top ranks of prosecution. The stakes are too high for communities nationwide — but especially communities of color who have suffered disparities as well as unequal treatment for too long.
Melba Pearson is an attorney, legal analyst and writer. Follow her on Twitter @ResLegal Diva and on her blog The Resident Legal Diva.