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Reuters/Jim Young
In the hot seat.
BREAKING BAD

Prosecutors have hijacked America’s criminal justice system while no one was looking

Noah Berlatsky
By Noah Berlatsky

This post has been corrected.

“Weekend prison passes—Dukakis on crime.”

That’s the tagline from the famous attack ad Republican George H. W. Bush ran against Democrat Michael Dukakis in the 1988 US presidential campaign. The ad featured Willie Horton, a murderer given a weekend furlough during Dukakis’s tenure as governor of Massachusetts. While released, Horton committed an assault, armed robbery, and rape. It’s not clear that Horton ads actually affected the 1988 election. But they were widely seen as doing so.

For decades, Dukakis served as a warning to politicians; if you’re weak on crime, voters will punish you. That logic has also helped make America’s prison population the largest in the world. But recent, high-pofile missteps coupled with growing disgust for a broken criminal justice system has trained a brilliant new spotlight on America’s wide network of prosecutors. These officials are given a wide purview and often little oversight—and they make mistakes.

Anita Alvarez, state’s attorney for Cook County, Illinois, seems to have taken the Horton lesson to heart. Since her election in 2008, she has maintained a reputation as a vigorous, tough-on-crime prosecutor. She helped draft laws to increase criminal penalties for gang members arrested with guns, and has been involved in efforts to crack down on human trafficking.

Prosecutors are given a wide purview and often little oversight—and they make mistakes.

Yet, despite all of her tough-on-crime bona fides, Alvarez is struggling. In August, the Cook County Democratic party refused to endorse her; instead, there will be an open primary. This month, there have been calls for Alvarez to resign over her handling of a Chicago police shooting.

More than a year ago, Chicago police officer Jason Van Dyke shot and killed 17-year-old Laquan McDonald. Police claimed McDonald threatened officers. A dashcam video of the shooting ultimately upended that narrative—but it took more than a year for courts to force the city to release it.

For her part, Alvarez only filed charges against Van Dyke hours before the video was finally made public. Critics have since accused her of participating in a cover-up. Opposition to Alvarez hasn’t just come from activists, however. Cook County board president Toni Preckwinkle has endorsed Kimberly Foxx, Preckwinkle’s former chief of staff and a former Cook County assistant state’s attorney. Preckwinkle opposes Alvarez precisely because of the inflexibility of her approach to crime and imprisonment.

One of Preckwinkle’s stated goals for Cook County has been to reduce the number of people in jail. In 2011, Preckwinkle tells Quartz by phone, the Cook County jail population was averaging 10,000 people a day. About 70% of those were nonviolent offenders. Preckwinkle talked to public safety actors in the County, and everyone agreed the jail population could be reduced with no threat to public safety.

Everyone that is, except Alvarez.

“We had to drag her kicking and screaming down the path of criminal justice reform,” Preckwinkle tells Quartz. “The assistant state’s attorney still asks for high bonds in bond court. They bring to the court whatever cases the police bring to them, regardless of the merits. So we have lots of people who are dismissed out of their first hearing.”

“We had to drag [Anita Alvarez] kicking and screaming down the path of criminal justice reform.”

Preckwinkle says the jail population has been reduced to about 8,200 a day, but that’s more the result of bond court reform. “You know, Anita Alvarez is the captive of the police department and [Fraternal Order of Police],” Preckwinkle tells Quartz. “This is crazy. She should exercise her own judgment about the cases that are brought to her by the police department, rather than going forward regardless of the merits, or going forward with stuff that she knows is going to be thrown out at the first hearing.”

Mass imprisonment is usually blamed on drug laws and mandatory minimum sentencing, not on prosecutorial decisions. But research by John Pfaff, professor of law at Fordham University in New York, suggests that Preckwinkle is on the right track. Pfaff’s forthcoming paper (already discussed in the press) argues that prosecutorial decisions are responsible for a substantial portion of high incarceration rates in the US.

Pfaff tells Quartz that he looked at court data to find US felony filings between 1994 and 2008. He found that while arrest rates dropped over the period by about 10%, felony filings by prosecutors rose by 40%. Even though fewer people were arrested, in other words, prosecutors were using their discretion to charge more people—and send more people to prison.

It’s not entirely clear why prosecutors have been filing more felony charges over the past 15 to 20 years. One factor, Pfaff says, seems to be that more prosecutors have been hired, so that the number of felony filings has risen even though felony filings per prosecutor has not.

Another factor, though, is tough on crime incentives. Surveys of public opinion show that politicians tend to be much tougher on crime than the public is. But, Pfaff tells Quartz, “Our elected officials remain tough on crime because they know voters are easily swayed. If there’s a diversion program that works on 999 people, but that 1,000th person reoffends in a sufficiently bad way, like Willie Horton, that’s how we’re going to vote. We punish them for the inevitable failures, but we don’t reward them for successes.”

“Our elected officials remain tough on crime because they know voters are easily swayed.”

District attorneys (DAs)—elected positions in almost every state—are hardly ever voted out of office, Pfaff pointed out, though why local officials have such an incumbency advantage is still debated. In any case, it generally requires some sort of massive scandal to unseat a DA. So defending against a catastrophic re-offender makes good political sense, even if everyday prosecutions are harsher than the public in general would prefer.

Alvarez, though, shows that scandal of a certain size can work against tough-on-crime politicians too. In 2010, Alvarez prosecuted Tiawanda Moore, a woman who said she was groped by a police officer after calling in a domestic dispute. Moore reported the incident to the police, and when they tried to discourage her from pressing charges, she recorded the conversation. Alvarez’s office prosecuted her for eavesdropping on a police investigation. (Moore was acquitted.)

Even more controversially, Alvarez failed to secure the conviction of Dante Servin. Servin is the police detective who fired into a West Side alley, killing Rekia Boyd in 2012. Alvarez charged him with involuntary manslaughter. The judge ruled the charge should have been first-degree murder, and acquitted Servin of the lesser charge.

Cases like this, coupled with Alvarez’s slow action on the Laquan McDonald case have eroded her support in the Democratic party, and damaged her standing in the eyes of many voters, especially African-Americans. One of her campaign co-chairs, Karen Yarbrough, refused to serve. Other influential politicians have abandoned her. And activists have criticized her consistently. “I think that I’d like to see a state’s attorney who was truly interested in justice,” Joey Mogul of the People’s Law Office in Chicago tells Quartz. “And I’d like to see a state’s attorney who does not pander to the tough on crime law and order agendas that tend to drive politicians and their campaigns. and I believe that Anita Alvarez has been in that vein.”

Alvarez is hardly the only DA critics say panders to tough on crime agendas, sometimes at the expense of justice. Chicago recently passed a city council ordinance providing reparations to victims of police torture. At least 100 people, almost all African Americans, were tortured in an effort to elicit confessions under the command of detective Jon Burge. Former Chicago Mayor Richard M. Daley was DA at the time in 1982; when he was informed of the torture, he refused to investigate Burge, and instead commended him. The torture continued for another decade.

Alvarez is hardly the only DA critics say panders to tough on crime agendas, sometimes at the expense of justice.

Nor is this just a Chicago problem. In Oklahoma, Richard Glossip is on death row based on the testimony of Justin Sneed, who bludgeoned to death hotel owner Barry Van Treese, their mutual employer. Sneed said that Glossip hired him, but his testimony was contradictory, and he was highly motivated to name an accomplice in order to avoid death row himself. Prosecutorial over-zealousness appears to have resulted in the conviction of an innocent man, who still faces death for a crime he very likely had nothing to do with.

And of course the Laquan McDonald case has parallels throughout the US, where police are rarely held accountable for shootings or deaths. Darren Wilson, the police officer in Ferguson, Missouri, who shot and killed Michael Brown, was not indicted. More shockingly, the New York City police officers who were caught on video tape suffocating Eric Garner were not charged. These cases are sadly not unusual; studies have found that police very rarely face criminal charges for on-duty shooting. Research conducted through Bowling Green State University and reported by the Wall Street Journal  (paywall) found that in the seven years before 2011, 41 officers were charged with murder or manslaughter for on-duty shootings; the number of justified homicides by police officers during that period was 2, 718.

If Alvarez is defeated, it could be a sign that Americans are ready to start holding district attorneys accountable for being too tough on crime, as well as for being not tough enough. That would be a vital step towards reducing those jailed in Cook County—and not just in Cook County. If the US is ever going to address mass incarceration, it will need to change the incentives associated with being tough on crime, one prosecutor at a time. Whether it’s successful or not, that’s what the campaign against Anita Alvarez is trying to do.

Follow Noah on Twitter at @hoodedu. We welcome your comments at ideas@qz.com.

Correction (Dec. 16): A previous version of this piece incorrectly stated Kimberly Foxx’s relationship to Cook County board president Toni Preckwinkle. Foxx is Preckwinkle’s former chief of staff.