This November, voters around the country will engage in local elections with significant criminal justice impact. Nowhere is that more apparent than local prosecutor races.
Progressive prosecutors offer fresh and innovative crime-control approaches to a criminal legal system that disparately — and often unnecessarily — impacts the poor and people of color without increasing public safety. At least 20 elections nationwide feature reformist prosecutors. The outcome of these hotly contested races will set the agenda for a host of important local issues — the use of cash bail, the prosecution of low-level offenses, and even the enforcement of new anti-abortion laws.
Progressive Prosecutors Cleared Adnan Syed
Look at the difference that progressive prosecutors made in the high-profile case of Adnan Syed, who was wrongly convicted and incarcerated for over two decades for the 1999 murder of his ex-high school girlfriend, Hae Min Lee. Just this week, outgoing progressive prosecutor Marilyn Mosby announced that all charges against Syed would be permanently dropped.
Syed garnered national attention as the hit 2014 Serial podcast, the HBO documentary The Case Against Adnan Syed, and the 2015 Undisclosed podcast homed in on the weaknesses in his case. The flurry of media attention kept Syed’s case in the public eye, but it did not provide him with legal recourse.
Then the State of Maryland passed the Juvenile Restoration Act, allowing for the resentencing of people who were juveniles at the time of their offense but were sentenced as adults. Syed’s lawyers asked the prosecution to review his case. It landed on the desk of Becky Feldman, the Chief of the Sentencing Review Unit for the Baltimore City State’s Attorney’s Office.
Feldman was relatively new to the prosecutor’s office, but she wasn’t new to the practice of criminal law. A former public defender, Feldman had been hired by Mosby, who had a reformist view of what a prosecutor’s office could look like. Mosby declined to prosecute certain types of crimes, committed to bail reform, and paved the way to correct past injustices for people who were serving excessive sentences or those who were wrongly convicted.
Hiring a former public defender like Feldman, who would bring a fresh perspective to the prosecutor’s office, was part of Mosby’s progressive vision.
When Feldman started reviewing Syed’s file, her former defense lawyer instincts kicked in. The more she looked into the case, the more uncomfortable she became.
Then Feldman stumbled across handwritten notes in the prosecutor’s file. Notes that the trial prosecutor should have turned over to the defense, that implicated another suspect — one with motive and opportunity. The failure to turn over this evidence is called a Brady violation — and it is the kind of error which, on its face, could warrant reversal of any conviction.
Why Traditional Models of Prosecution Don’t Work for the Innocent
Many traditional prosecutors do what is just and fair when faced with that kind of exculpatory evidence. But others double-down on convictions, even when the evidence has completely unraveled. Scholars suggest that some prosecutors suffer from cognitive biases that cause them to focus on evidence that confirms their theory of the case, and to blindly adhere to those beliefs even when faced with conflicting evidence.
In wrongful conviction research, these prosecutors are called “innocence deniers.”
But Feldman, the former criminal defense lawyer, was different.
When she stumbled on the notes in the file, she promptly notified the defense. And then she later filed a motion disclosing the Brady error, exposing the evidentiary gaps in the case, and asking for Syed to be released from prison. Syed finally walked free after 23 years behind bars.
Would a traditional prosecutor in a traditional prosecutor’s office have done that?
There is no way to know.
But what we do know for certain is that the evidence in Syed’s case had not materially changed since his conviction.
What changed was the prosecutor who reviewed his file.
Progressive Prosecutors Matter
Nearly one-fifth of all known exonerations happened with the help of a prosecutor’s Conviction Integrity Unit. Indeed, many progressive prosecutors, such as Jose Garza in Travis County, Texas, have staffed their CIUs with former public defenders who give a fresh and much needed perspective to this important work.
These units review cases involving wrongful convictions and work alongside the defense to establish innocence. Think of all the innocent men and women who would still be incarcerated were it not for the assistance of progressive prosecutor offices that decided to think about justice differently.
Of course, prosecutors are also part of the problem. Nearly 30% of all exonerations involve prosecutorial misconduct that contributed to the wrongful conviction in the first place. Reform needs to happen at every level.
But progressive prosecutors can also be part of the solution. Defense attorneys have long been the lone voice against a system that regularly produces wrongful convictions. Progressive prosecutors can challenge the status quo from within, and work to rebuild our broken criminal legal system with an eye squarely on justice.