by Rory Fleming
Our top federal prosecutors are called United States attorneys. There are only 94 of these presidential appointees, and they are among the most powerful people in the nation. With the surging criminal justice reform movement focusing more and more on prosecutors, we need direct scrutiny of presidential candidates’ intentions for these crucial, often devastating roles.
Like top local prosecutors, US attorneys have nearly unfettered discretion in who they charge with a crime and what to charge them with. But they have even more power than that.
Federal criminal law includes a large number of draconian mandatory minimum prison sentences, and judges have rigid sentencing guidelines even when mandatory minimums don’t apply. There is no parole in the federal system, either. As such, federal criminal cases are resolved by often-coercive plea deals even more often than state cases—a whopping 97 percent of federal cases end this way. And it’s US attorneys who negotiate recommended sentencing ranges for—and ultimately consent to—these plea deals.
What would leading Democratic candidates prioritize, given the responsibility of making these crucial appointments?
Presidents from both political parties have historically appointed the most tough-on-crime prosecutors with a viable resume. The Senate is a hypothetical barrier to unethical people taking these posts, but partisan divisions tend to outweigh such concerns—making the president’s call all-important if their party holds the Senate.
For example, in 2017 David Freed, Trump’s US attorney pick for the Middle District of Pennsylvania, slid in through a non-recordedvoice vote—despite the revelation that he hired Evan McLaren, one of America’s most prominent white nationalists, while Freed was the Cumberland County, Pennsylvania district attorney. During Freed’s DA tenure, Black people made up 3 percent of the county population and 25 percent of its prison admissions.
So what would the leading Democratic presidential candidates prioritize, given the responsibility of making these crucial appointments?
We have some indications. As California attorney general, Kamala Harris blithely let prosecutors off the hook for cheating and lying on some of the state’s most serious cases. However, Harris has endorsed both progressive reformers like Geneviéve Jones-Wrightandconservative-lean establishment Democrats like Suzy Loftus for California DA seats.
Elizabeth Warren and Bernie Sanders, meanwhile, both endorsedhyper-progressive Queens DA candidate Tiffany Cabán, who pledgedto no longer prosecute drug possession, turnstile jumping, prostitution, trespassing, disorderly conduct, loitering, drug possession and welfare fraud, while going after white-collar criminals.* In 2018, Amy Klobuchar endorsed Mike Freeman, a bullish, misogynistic Democrat with a penchant for racist commentsand huge racial disparities in prosecution, over reformer Mark Haase in Hennepin County, which includes Minneapolis.
Despite such indications, there’s a large extent to which we just don’t know. And that’s why we need candidates to be asked about this during the debates—to publicly commit them, if that’s the case, to reform-minded picks.
Don’t Assume That Any Democrat Means Progress
Simply assuming that any Democrat president would automatically lead to rapid improvement in this area is lazy and flawed. Despite President Obama praising reformers like DAs Larry Krasner and Rachael Rollins after he left office, his own US attorney picks often proved to be terrible.
Then-US Attorney Carmen Ortiz, Obama’s choice for the District of Massachusetts, was widely blamed for the suicide of Aaron Swartz, Reddit co-founder and one of the most brilliant technological minds of the 21st century. Swartz attempted to make federal court documents stored on PACER free to the public. Without people paying PACER 10 cents per page for nominally public records, the records of US Attorneys are largely hidden, with most glimpses of the federal justice system only available via propagandistic press releases from the Department of Justice. Ortiz gave Swartz no quarter, burying him with 12 federal charges that could have sent him to prison for five decades. Swartz was 26 when he died.
Another example is Obama’s US attorney for the Northern District of Alabama, Joyce White Vance. Vance is now known for being one of several Obama-era law enforcementchiefs who have since identified themselves with #TheResistance. But earlier, she too ruined young lives without much concern.
In one case, Vance used her discretion to treat a young man in his early 20s who sexted with his girlfriend—a teenager who was above the legal age of consent for sex in his state—like a predatory pedophile. The sentencing judge wrote in her opinion that, “An odd day arises when a young man, who could legally have consensual sex with his 16-year-old girlfriend, will forever be labeled a sex offender for receiving provocative pictures of her that she sent him via text message.”
Alabama is only one of three states that require every person convicted of any sex offense to publicly register as a “sex offender” for life, with no exceptions or provision for removal after many years of compliance. Vance surely knew this, and effectively tied Judge Karon Bowdre’s hands by charging the case as she did, with devastating consequences for the young man.
Far-Reaching Powers Demand Public Scrutiny
US attorneys know how powerful they are, and tend to act accordingly.
They often send the goriest possible recitations of offenses to judges, who take those documents very seriously in determining sentences.
They undermine transparency, using secret federal grand juries to investigate suspects and working closely with the FBI, long known for its extreme aversion to openness.
And they enjoy near-immunity. When a US attorney is caught committing professional misconduct or worse, they will have the full backing of the federal Department of Justice in a quest to conceal that from the public.
One case demonstrated a virtual “license to steal.” In 2016, when H. James Pickerstein, the former US Attorney for the District of Connecticut, admitted stealing $600,000 from his law practice’s clients, dozens of prominent legal figures testified to his character and Pickerstein, a white man, was sentenced to 30 days in prison. Contrast that with the 2011 case in which Tanya McDowell, a homeless Black mom in the same state, enrolled her son in a public school district neighboring where she lived, and was sentenced to five years in prison.
The malign influence of many US Attorneys has also leached through and poisoned local, grassroots-driven progress on criminal justice reform.
With opposition growing to the United States’ position as the most incarcerated nation on earth, local top prosecutor elections are now increasingly competitive for reform candidates. But Trump’s US attorney for Philadelphia, William McSwain, has re-prosecuted cases that were handled by reform DA Larry Krasner. The reason, as expressed by McSwain himself, is that Krasner’s “isn’t putting fear into hearts” of people who break the law. (For good measure, McSwain is also spearheading federal efforts to block a proposed safe consumption site to reduce overdose deaths in Philly.)
This is the debate America desperately needs to hear.
The potential of US attorneys to do harm is not only vast but growing, and extends even beyond US borders. Modern technology and law allow federal prosecutors to snatch up local state cases on such tenuous grounds as an “instrumentality of crime,” like a cellphone, having been made in a different jurisdiction. For nonviolent internet crimes like Swartz’s, there is essentially concurrent jurisdiction for crimes committed abroad. Two different autistic men from other nations—Irish Silk Road operator Gary Davisand British hacker Lauri Love—have fought extradition on human rights grounds, because American prisons are much worse and known to mistreat people with autism.
Potential presidents’ intentions for US attorney picks is the debate America desperately needs to hear. Federal prosecutors have immense, unchecked discretion, and their identities and inclinations are thus critical. In a political era where partisanship trumps all, presidents often have effective carte blanche to pick whom they please.
All the presidential candidates should be grilled on this question early and often.
*The author briefly worked on Tiffany Cabán’s campaign in early 2019, as well as Geneviéve Jones-Wright’s campaign in spring 2018.