Within a month of taking office, Hayden pumped the brakes on his predecessor’s most emblematic policy—a public list of lower-level arrests that the DA’s office would decline to prosecute—sparking concern among local progressives who want to decrease people’s ensnarement in the criminal legal system. Among Hayden’s critics is a prominent Rollins-era staffer who monitored reforms in her office but says he was pushed out of his job within days of Hayden’s arrival this year.  

Progressives are now aiming to reclaim the office in the 2022 elections. Ricardo Arroyo, Boston councilor known for left-leaning politics, is challenging Hayden. The two are expected to meet in the Democratic primary in September (other candidates could jump until May).  

Rollins’s approach was in the national spotlight last fall as Republican U.S. senators opposed to Biden’s appointment attacked her list; in 2022 its fate will be in the hands of Boston voters.

Arroyo told Bolts that he would “preserve” Rollins’s reform. “The data clearly has shown that policies of declination have made communities safer including Suffolk County,” he said.

Arroyo, a former public defender who has championed police oversight measures while on the council, is also calling for other changes like the elimination of the Boston police department’s gang database, which Hayden supports. During her time as DA, Rollins was repeatedly targeted by police associations, whether over her declination policy or over remarks on police brutality.

After three years as DA, Rollins left behind an office more invested in restorative justice and progressive policies than it had been previously, though she drew criticism from public defenders and court-watchers for not implementing reforms consistently. Her crown jewel was the “decline to prosecute” list, which she rolled out during her 2018 campaign and then confirmed in March 2019. 

The list included theft under $250, breaking and entering vacant property, and low-level drug offenses. It aimed to cut down on the number of people who are prosecuted and potentially saddled with criminal convictions, let alone jail time, over behaviors like substance use or homelessness. Many reformers oppose criminalizing or punishing such behaviors in the first place, saying they should be addressed through services like public health or housing programs. 

“There are other mechanisms by which we can try to cure these alleged problems or social ills.” Rollins said recently to explain her approach.

John Pfaff, a Fordham University law professor who studies prosecutor policies, says a “Do Not Prosecute” list can reduce the harm of arrests and potentially trickle down to pushing the police to arrest fewer people. “Police interactions are fraught, people can often find themselves locked up between arrest and dismissal, and arrests themselves produce permanent criminal records,” he told Bolts.  

“Absent changes on the police front, prosecutors can at least use Do Not Prosecute lists to minimize some of the harms from aggressive low-level arrests, which given their volume are not ‘low level’ in the aggregate,” Pfaff added.

Observers like Pfaff said in 2018 that Rollins’s campaign announcement pushed the envelope of what prosecutors were doing to fight mass incarceration, but it has since grown more common for DAs to run on platforms of declining to prosecute specific charges. 

But Hayden appears to be heading in the other direction. The new DA told Commonwealth in January he may not maintain Rollins’s “do not prosecute” policy; and in February, The Boston Globe reported that Hayden would not set up or commit to a list of his own 

In an exchange with Bolts, Director of Communications Matthew Brelis said Hayden has “made no changes to the list.” Nevertheless, Brelis explained that the office objects to blanket approaches. 

“The concern with making decisions based primarily on charges is that they too easily become formulaic,” Brelis said. “We are dealing with human beings and they must be looked at as unique individuals, not part of an equation.” Pressed for clarification, he added, “Each case, each individual and the circumstances they bring with them are different.” Brelis also said Hayden wants to “provide the services and resources necessary to address the underlying factors contributing to low-level, nonviolent crime.” 

In response to Hayden’s February interview in The Boston Globe, CourtWatch MA, a group that monitors local prosecutors, said Rollins’s commitment to a public list at least enabled accountability for her actions. 

“The list of charges to be declined was just a beginning. We continued to see those charges pursued in Suffolk County courtrooms, and we pushed back,” CourtWatch MA tweeted on Feb. 16. “But announcing a list allowed for that kind of public accountability and pushback!”

Jonathan Cohn, the political director of Progressive Massachusetts, a state group that supports criminal justice reforms, says Hayden’s backtracking is a major mistake. 

“There’s a strong and growing body of research that shows that declining to prosecute nonviolent misdemeanor cases not only minimizes individuals’ current involvement with the criminal legal system, but also substantially reduces the probability of future involvement,” Cohn told Bolts. 

A study of Boston released in March 2021 found that declining to prosecute lower-level charges reduced crime. Using two decades of data in Suffolk County, the study established that people who were arrested but then not prosecuted over lower-lever offenses were less likely to commit a crime later. New York University Professor Anna Harvey, one of the scholars who conducted the study, explained the findings to the Boston Globe: “Keeping these individuals out of the criminal justice system seems to have an effect; it seems to stop the path of criminal activity from escalating.” 

“This data shows the policies we proposed are working,” Rollins said when the study was released.

Still, Boston activists say Rollins failed to implement her list in a way that solved the underlying problems it was meant to address. The need to audit Rollins’s promises led Massachusetts Bail Fund and Families for Justice and Healing to create Courtwatch MA early in Rollins’s tenure. Massachusetts Bail Fund Executive Director janhavi madabushi told Bolts that the program’s promise and reality haven’t necessarily lined up. 

“It’s 2022, and MBF can tell you that we haven’t stopped paying $1, $25, $100 bails in Suffolk county and bail people all the time for the charges that exist on the decline to prosecute list,” madabushi said. “The DAs office has continued to push narratives that they are working to keep communities safe while jailing mostly Black, Brown, disabled and poor people for the crimes of being houseless, using substances, and existing with trauma.”

Bobby Constantino worked in the DA’s office under Rollins to assess data regarding her policies and communicate with researchers. Constantino drew national attention in 2013 after he got himself arrested to make the case against overcriminalization, and he points to data collected by Rollins’s office that shows the declination rate of low-level arrests increased after her election, though it remained well short of 100 percent. Violent crime went down in Boston in recent years. 

To Constantino, Hayden’s statements on the “do not prosecute” list show a disrespect for the public because this was the approach that Bostonians voted for in 2018.

“That’s what the voters are signaling to you,” he told Bolts. “They want it.”

But Constantino is now stuck watching the office from the outside; he stopped working there shortly after Hayden’s arrival. 

Constantino says he was fired, though the DA’s office disputes that characterization. In an email exchange reviewed by Bolts, Constantino wrote to Hayden soon after the new DA’s appointment to say he was at his service, but the office leadership told him his last day at work would be two days hence. The office said Constantino had already handed in his resignation; Constantino denied that, replying he had indicated he would leave once he secured another job with insurance for him and his daughter. Hayden’s office declined to address this exchange, saying it did not comment on personnel matters, while adding it had not terminated anyone.

Constantino believes that his quick departure is part of a pattern of Hayden turning the page from Rollins’s reforms, back to a more law enforcement-friendly approach to criminal justice. 

Arroyo, Hayden’s challenger, is similarly critical of the new DA. Hayden “effectively dropped one of the central pieces of policy enacted by former District Attorney Rollins,” he told Bolts. “I don’t believe these early decisions show any intention to continue the policies put in place.”

“Diversion and intervention done correctly more effectively address the long term and short term needs of public safety and put individuals on a path to wellness and stabilization,” Arroyo said.

Whomever wins the election this year, madabushi vows that their group will keep fighting the criminal legal system’s interventions. “Every solution worth pursuing to address root causes of harm and violence and to further racial and class equity exists outside of the DA’s office,” they said.

The post Boston Progressives Fear Rollback of Reforms After DA’s Early Exit appeared first on Bolts.

The support of friends, family, and social service providers catalyzed Sterling Johnson’s recovery from substance use disorder. “When they looked at me and they saw hope in me instead of treating me like shit,” he said. “I would say that dignity, respect, having people believe in you. Those are the things that make you want to change.”

Johnson is a lawyer and housing advocate in Philadelphia, where District Attorney Larry Krasner has made strides toward decriminalizing simple drug possession by dismissing an increasingly large portion of these cases. Johnson sees this as key to decriminalizing substance use.

“Let’s humanize every single person,” he said. “You don’t put them in a box and they get better from the box.” 

Philadelphia could step back into the mainstream of the war on drugs should Krasner lose the May 18 Democratic primary—a de facto general election in this deeply blue city. His opponent is Carlos Vega, a career prosecutor who Krasner fired upon taking office. Vega has more of a law-and-order stance; he favors sending drug possession cases to drug court, rather than dropping charges outright. Drug courts can bring alternatives to incarceration, but their eligibility is restricted, and people remain under the threat of prosecution or incarceration if they relapse during treatment.

“Correctional facilities are detrimental to a person’s health … Being incarcerated has a huge impact on a person’s life, even more than the use disorder,” said Danielle Ompad, professor of epidemiology at New York University’s School of Global Public Health. She said that prosecuting drug offenses isn’t working and that “we could be putting that money into poverty alleviation, building an economic safety net.” 

Upon taking office, Krasner stopped prosecuting marijuana possession. Then, in late 2019, he established a policy of dropping every drug possession charge if the person shows proof of participating in treatment. The office defines treatment broadly, and does not require the recovery program to be court-monitored. Attending a Narcotics Anonymous meeting would suffice for someone caught with cocaine, for example, and such meetings are free and widely offered in the city. The office also does not wait to see if the person successfully completes the program before dismissing the case, a marked contrast with drug courts.

“We weren’t going to keep a hammer over their head to be sure that they completed X number of days,” Krasner told The Appeal: Political Report. “We know that often people are not ready for treatment, or treatment fails them the first time. But at least go so that you know where to get [it].”  

The share of drug possession charges that were outright dismissed by the DA’s office climbed as soon as Krasner took charge in January 2018. It then rose again after he made it a policy in late 2019 to drop charges for people who seek treatment regardless of whether they enter drug court or complete a program. 

Comparing January through March 2020 (before local courts shut down due to COVID-19) to the equivalent time period in 2017 (the last year before Krasner entered office), the share of drug possession charges that were dismissed increased from 19 percent in 2017 to 54 percent in 2020. This jump corresponds to hundreds of dismissed cases.

The share of dismissed charges surged further when the pandemic began, but pandemic data is tricky because courts were non-functioning and many prosecutors dismissed low-level cases more broadly. Between January and March of 2021, as Krasner called for police to make fewer arrests for low-level crimes, the office dismissed 87 percent of drug possession charges. 

Krasner has made other changes to enhance harm reduction, like declining to prosecute anyone for possessing buprenorphine, a drug that is prescribed to quell cravings for someone weaning off opioid use but is also sold on the black market. Also he sanctioned fentanyl test strips, which are used to detect the lethal chemical and were previously considered drug paraphernalia. And alongside other city officials, he has advocated for the construction of a safe injection site to reduce overdose deaths.

Vega says he will continue to not prosecute cases involving marijuana possession. When it comes to other forms of substance use, though, he wants to take the Philadelphia DA’s office in the opposite direction. He has spoken against bringing a safe injection site to the city, and he is campaigning to return to the long-established drug diversion programs administered by a drug court, where a person’s chance to circumvent incarceration depends on whether they can abide the program’s conditions and achieve sobriety. 

“If you’re caught with a drug that I believe is going to destroy your life, lead you to a dark place and also affect the community, I’m going to put you into a program,” Vega told the Political Report. “And once you complete that program, get the help you need, the counseling you need, I drop the charges, and I seal that record.”

However, this type of court-monitored diversion program is increasingly selective, only admitting people with no prior convictions, and it comes with onerous requirements such as reporting for urine tests that can impede a person’s ability to make a living. Critics say that these programs often lead to incarceration when people trip up and fail to meet those conditions—often with steeper sentences than if they had just been sentenced in the first place.

“For people who have substance use disorders, relapsing can be part of their recovery,” said Ompad.

Some local activists and public health advocates are also pressing Krasner to go further and dismiss drug possession arrests without conditions. “Most people who use drugs don’t need treatment,” said Ompad. “If someone is picked up for marijuana or cocaine possession and they use maybe once a month or once a week, they don’t really have a substance use problem.”

Brooke Feldman, a board member with the Philadelphia-based harm reduction nonprofit Angels in Motion, says she supports what Krasner is doing, but thinks that he should drop the treatment requirement, however small it may be. “Mandating something isn’t the way to go,” she said.

She explained that one negative experience with a treatment facility can become a barrier to recovery—so a person should only enter when they’re ready, and through a program that is right for them. “If someone goes to a meeting because they had to, it just gives them a picture of something that they don’t want to do in the future. That can set them back,” she said.  “Or if someone goes and gets an assessment for treatment and has a negative experience, they sat and waited for eight hours, in withdrawal, got treated like shit, in the end was told, ‘Sorry we don’t have any beds available for you.’ That kind of stuff sets people back.” 

Krasner has also faced criticism from the Philadelphia Bail Fund, which slammed him in a July 2020 report for asking judges to set impossibly high bail for people charged with, among other things, drug possession with intent to distribute. This is a charge that Krasner doesn’t plan to stop prosecuting, but he had implied it would no longer trigger pretrial detention when he made promises to only seek bail for violent offenses.

Other prosecutors nationwide have moved toward policies of not prosecuting drug possession, including DAs in Boston, Seattle, and Baltimore, where State Attorney Marilyn Mosby’s office halted prosecuting drug possession during the pandemic as a measure to reduce jail population size. In response to a subsequent drop in crime rates, Mosby’s office recently announced that these changes are permanent.

Taking it a step further, in a January 29th letter to his constituents, newly elected Travis County, Texas, District Attorney Jose Garza said that he would not prosecute people for possessing small amounts of drugs, but also for selling those amounts, unless the case includes violent conduct. 

In Oregon, Multnomah County (Portland) District Attorney Mike Schmidt was a strong advocate for the new state law that decriminalizes drug possession, making it the first state in the country to do so. The 2020 reform was inspired in part by Portugal, which decriminalized personal amounts of drugs in 2001.

Krasner says he would eventually like to have a similar model. In Portugal, if a police officer finds a person in possession of drugs, rather than send that person to jail, they typically direct them to a local commission that includes a lawyer, social worker, and a doctor. This team will educate the person about available treatment, including medical and social services. 

The primary rationale for Portugal’s law change was to destigmatize drug use, encourage treatment for those who needed it, and cut down on needless incarcerations. Since it was implemented, drug use has decreased, and the number of overdose deaths has declined. Meanwhile, the number of people entering drug rehabilitation programs has increased. 
Portugal’s government implemented this system in the midst of a heroin epidemic that Philadelphia is mirroring today. The city is one of the hardest hit by the opioid overdose epidemic. A staggering 1,150 people were reported to die from overdose in Philadelphia in 2019, with 80 percent of them attributed to opioids.

This article has been corrected to reflect that Krasner’s predecessor did not have a policy of declining to prosecute marijuana charges; Krasner established this policy upon taking office. This article has also been updated to include that Vega says he would retain this policy and not prosecute marijuana cases.

The post Philadelphia D.A. Race Could Ramp Up the War on Drugs appeared first on Bolts.