When Money Drives Our Justice System

It didn’t use to be this way. District Attorney races have historically been overwhelmingly white, underfinanced, and unimaginative. District attorney races lurked someway down-ballot, attracting little attention and fewer dollars as a largely uninterested public looked the other way. These were mostly uncontested races where incumbents ran again and again and were reelected with ease. Then, progressive prosecutors showed up to blow the dust off those races and inject a sense of a real contest of ideas. Their movement challenged the traditionalist district attorneys who promised to be “tough on crime,” fueled the mass incarceration of Black, Brown, and Indigenous people, with little regard for whether their zeal for punishment was making their communities safer or not.

Now, voters have a choice, and in some cases, they’ve chosen prosecutors who have promised them change. District attorneys such as Kim Foxx in Chicago, Larry Krasner in Philadelphia, George Gascón in Los Angeles, and Mike Schmidt in Portland, Oregon, campaigned and won with promises of ending or at least limiting mass incarceration and injecting more fairness into a deeply unequal system of prosecution. But the progressives haven’t had it all their own way. Chesa Boudin, who came to office in San Francisco in 2020 and was among the progressives who bested their opponent, was recalled by voters in June this year amid criticism of his track record. (Although there are reasons to be skeptical of his critics’ claims.) Other would-be progressive prosecutors are yet to occupy the DA’s office despite record-breaking sums spent on their campaigns. In 2018, Max Wall unsuccessfully contested the Washington County, Oregon, race, raising more than half a million dollars, most of which came from a PAC.

Voters are feeling the impact of this influx of money as they’re bombarded with YouTube ads, billboards, flyers, texts, and a general sense that at last there’s a real choice to be had between ways of addressing crime. Finally, someone to vote FOR. Without PAC money, it’s doubtful whether some of the new breed of DA would have ever had a chance at winning office, burdened as they are by the twin disadvantages of battling an incumbent and persuading voters to take a chance on a different approach to prosecution. Funding has been crucial in helping the progressive prosecutor movement take flight. Big campaign spending by the new prosecutors has predictably induced higher spending by the old guard, struggling to hang onto their positions. Larry Krasner’s landmark victory in Philadelphia in 2017 saw more than $4 million spent, which was twice as much as the previous race. Even where the incumbents have hung onto their positions, they have been forced to dig deep to fund races that have become far more expensive than previously.

These newly minted big-money district attorney races carry the same risks to our democracy as other plutocrat-dominated elections. Wherever a handful of big donors have a lock on campaign financing, their voices sound much louder in candidates’ ears than those of ordinary Americans with their paltry $10 or $20 contributions. There’s a lack of transparency, too, as to who exactly is funding many of these PACs, what their goals are, and what influence they hope to gain through their largesse.

District attorneys are often called the most powerful actors in the justice system because of their tremendous control over critical decision points, such as charging and plea bargaining. We can’t allow such important offices to be effectively sold to the biggest spender, but we don’t want to go back to the old days of one-candidate races and no new ideas. There are ways that we could avoid both problems, such as limiting campaign spending or providing public funds to match contributions from small-dollar donors. There are very few areas where we give our government as much power as we do the district attorney. The best ideas and the best people should get the chance to rise to the top in our politics so that we have the elected officials who will most enhance the well-being of our communities.

Alice Lundell is the Director of Communication for the Oregon Justice Resource Center, a nonprofit law firm based in Portland, Oregon. OJRC provides free legal services to incarcerated Oregonians and people whose civil rights have been denied as well as working to end mass incarceration and dismantle the carceral state.