District attorney seats have been among the safest in local elections.
Recent incumbent prosecutors' election losses suggest a tough-on-crime approach is becoming a political liability rather than an asset.
Declining crime rates and activists organizing at the local level are influencing this new trend.
During Chicago's most recent Election Day, voters made it clear to the top prosecutor of the nation's second-largest county that it was time to start packing.
Anita Alvarez, the state's attorney for Cook County who had waited more than a year to indict the officer who shot 17-year-old Laquan McDonald, lost her bid for re-election that night -- badly. In Ohio, so did Cuyahoga County Prosecutor Timothy McGinty, who had declined to indict the cop who shot 12-year-old Tamir Rice.
Criminal justice reform groups hailed the unseating of two prosecutors who had bungled major police shooting cases as an important win. "This could be a sea change and might mean that prosecutors might become more accountable to the public," Daniel Medwed, a Northeastern University law professor specializing in criminal law, said via email. "This is largely attributable to Black Lives Matter and the attention paid to prosecutorial decisions about how to proceed."
Alvarez and McGinty's defeats were certainly notable. On average, incumbent prosecutors win re-election 95 percent of the time (in districts with more than 100,000 voters, like Cook and Cuyahoga counties, the rate dips to 90 percent). They win re-election slightly more often than state lawmakers, according to a study from Ohio State University's law school. Between 55 and 80 percent of the time, prosecutors run for re-election unopposed.
Yet while reform groups targeted both Alvarez and McGinty because of high-profile national scandals, this only partially explains why the two prosecutors lost.
In fact, some experts now say that a string of incumbent defeats across the country suggests it doesn't take a Black Lives Matter-specific flashpoint for voters to reject incumbent prosecutors. For many DAs, their longstanding embrace of tough-on-crime policies is reason enough.
"DAs almost never lose elections," said John Pfaff, a professor at Fordham University's law school. "And now they’re starting to."
While Pfaff says McGinty's ouster was "entirely a rejection for his failure to prosecute Tamir Rice's shooter," Alvarez had a history of advancing harsh and seemingly vindictive policies during her tenure.
But Pfaff cites the defeats of two prosecutors in the deep South as even more revealing examples of how voters are beginning to reject a decades-old approach to crime along with the incumbents themselves.
In November, Mississippi voters sacked District Attorney Forrest Allgood after 27 years in office. The Washington Post described Allgood as "one of America's worst prosecutors" due to his aggressive prosecutions against vulnerable defendants, including a 13-year-old boy and an intellectually disabled young woman. Both convictions were overturned.
"Allgood lost to someone smarter on crime, less tough on crime," Pfaff said. "That's a much more promising trend."
In Louisiana's Caddo Parish, which includes Shreveport, acting District Attorney Dale Cox faced such long odds that he pulled out of the race before the November election. Cox, who was in and out of the district attorney's office for thirty years, established a shockingly high record of capital murder convictions: Caddo Parish is home to roughly five percent of the state's population, but accounts for a third of the state's death sentences -- several of which have been overturned.
That's a sign of a major shift in public sentiment. In the 1980s and 1990s, when crime rates were significantly higher than they are today, prosecutors embraced policies like "three strikes" laws and mandatory minimum sentences. Then-Vice President George H.W. Bush's thumping of Massachusetts Gov. Michael Dukakis in the 1988 presidential election stood for years as a clear signal to elected officials that being tough on crime was a key to victory.
During a 1996 speech on crime at New Hampshire’s Keene State College, then-first lady Hillary Clinton infamously invoked the term "super predator," a junk science term that predicted a wave of fearless, brutal, amoral juveniles who would kill, rape or steal without remorse.
As crime rates have declined, however, prosecutors have been slow to adjust to the new reality. "They retained those policies even as crime was falling, which makes it hard to justify those policies now," Pfaff said.
Accusing your opponent of being "soft on crime" "no longer seems to be the dependable political cudgel it once was," reported the online journalism nonprofit The Marshall Project last year.
Rob Smith, a senior fellow at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, also notes that local prosecutors have become more visible thanks to increased media coverage of incidents like the Laquan McDonald shooting. Consequently, the public is becoming more aware of the unilateral decision-making power they wield.
"Prosecutors have a lot discretion over what crimes they charge," Smith said. "There’s a saying that a jury can indict a ham sandwich. But if you can indict a ham sandwich, why can’t you indict a cop who killed a kid?"
There’s a saying that a jury can indict a ham sandwich. But if you can indict a ham sandwich, why can’t you indict a cop who killed a kid? Rob Smith, Charles Hamilton Houston Institute for Race and Justice
That doesn't mean putting lots of people in prison has fallen completely out of favor, Pfaff noted. County prosecutors may still find support for such tactics in the suburban parts of their district.
"Suburbs feel the benefits of the city being safer," he said. "They feel the risk of drugs coming into their neighborhood being kept at bay, they feel safer when they commute to work in the city … but they don’t feel the costs of that enforcement."
The result, Pfaff said, is that "we sort of allow the suburbs to have a say in how policing affects the city."
Mariame Kaba, who has backed an array of racial justice, anti-criminalization and anti-violence organizations in Chicago for nearly three decades, cites Cook County as a prime example of suburban voters' influence on urban policy.
"You see this divide over city and suburbs: Suburbs love 'tough on crime' because it doesn’t affect them," she says. "To them, it’s black and brown people who are running wild and need a firm hand to tamp them down."
Suburban voters will continue to have disproportionate power in prosecutor elections, Pfaff said. But, he added, the Black Lives Matter movement has proved to be a powerful entry point for increasing support for various criminal justice reform issues.
Many more district attorneys who have prosecuted aggressively and punitively will be replaced in the next five years, Smith predicts.
"I think you’re going to see a lot more progressive candidates running for office, you're going to a see a lot of places with more contested elections, and see more places where an incumbent prosecutor is ousted," he said.
Pfaff believes that even in places like Maricopa County, Arizona, or Harris County, Texas -- both notorious for their tough-on-crime approach -- more-engaged voters could soon rein in aggressive prosecutors.
"We could be on the precipice of one of the most important changes in history about how the state and individuals interact with each other," Pfaff said.
Just four weeks ago, voters in Corpus Christi, Texas, voted out Mark Skurka, the county district attorney. Skurka and his office had been accused of misconduct, which Pfaff said "appalled" voters and local journalists alike.
"A tattooed defense lawyer ran against him in the primary and won," Pfaff said. "I think that’s powerful."