[T]he most important election next week in Mississippi may be the race for state’s Supreme Court justice from the Gulf Coast area (Mississippi Supreme Court justices are elected to 8-year terms).The incumbent, Oliver Diaz Jr., is the only justice on the state’s highest court who has gone on record stating that former Mississippi medical examiner Dr. Steven Hayne ought to be barred from testifying in the state’s courts. He’s also one of maybe just two justices on the court who seem to recognize that there are some fundamental problems with Mississippi’s criminal justice system.Two weeks ago, a Springfield, Virginia organization called the Law Enforcement Alliance of America began running a scurrilous, false attack ad saying Diaz “voted for” two “baby killers” and a “man executed for beating a woman to death.”Diaz wasn’t even on the court when one of those cases was decided. In another, he eventually voted to uphold the conviction and death sentence of an accused murderer—he merely voted to delay the execution until the U.S. Supreme Court issued its own opinion on the constitutionality of the lethal injection.The third case LEAA mentions in its ad is most aggravating. It’s the case of Jeffrey Havard, which I’ve written about here on several occasions. Havard was convicted of killing his girlfriend’s daughter based almost entirely on the testimony of discredited medical examiner Dr. Steven Hayne. Other, far more reputable forensic pathologists have since cast serious doubt on Hayne’s testimony in that case. Diaz should be commended for his votes in Havard’s appeal. Because Havard deserves a new trial.
Havard’s case has received even more attention lately. As I wrote earlier this month, the Mississippi Supreme Court recently ordered an evidentiary hearing on the scientific validity of Hayne’s Shaken Baby Syndrome diagnosis, a critical piece of evidence against Havard. There are also now allegations that prosecutors withheld exculpatory evidence during Havard’s trial.
Diaz was eventually defeated, though his loss may have had just as much to do with fallout from the fact that while on the court he was twice indicted for alleged campaign finance violations. (Diaz was acquitted both times, and his defenders attribute the indictments to then-President Bush’s hyperpoliticized Justice Department.)
Interestingly, the Center for Public Integrity points out that this same group also took out ads against Mississippi Attorney General Jim Hood. He’s one of Hayne’s strongest defenders in Mississippi, and about as law-and-order a prosecutor as you’ll find. Diaz and Hood are both left of center for Mississippi, but on criminal justice issues, the two don’t agree on much. This suggests that the LEAA may less about promoting a 1980s-style law-and-order platform than about promoting a general conservative agenda, occasionally using scare tactics about crime when it’s convenient. (The one issue that seems to be consistent among the candidates the groups targets is opposition to tort reform.)
But there’s an important lesson here for criminal justice reformers: It is relatively easy to influence these races.
There’s a lot of money getting thrown at criminal justice reform right now, but little of it is being used to actually influence elections. Criminal justice policy is rarely a contentious election issue. It isn’t that it never comes up; it’s just that it has always been rather one-sided. Politicians have been exploiting and demagoguing fear of crime for decades — generally with Republicans passing laws to make Democrats look soft on crime, and Democrats defending themselves by trying to outdo Republicans.
With just a few examples (more on those in a moment), there has been almost no effort to push back. But that’s at the lawmaking level. For the average district attorney or sheriff running for reelection, it’s even more lopsided. Every professional incentive nudges them toward “tougher on crime” policies. For a couple of generations now, about the only bad thing you could say about a DA or a sheriff was that they were soft on criminals. Notorious lawmen such as Joe Arpaio in Maricopa County, Ariz., and infamous prosecutors such as Harry Connick Sr. in New Orleans, Johnny Holmes in Houston and Henry Wade in Dallas were reelected over and over because they took it to the bad guys, sometimes by bending or breaking the rules. (With Arpaio, of course, it’s ongoing.) There was no other position.
Public opinion is now shifting on a lot of these issues. A good percentage of the public is now more concerned about mass incarceration than about crime. But we’ve yet to reach the point where the people whose opinions have shifted on these issues actually vote on them. The only groups who get electorally active on crime and policing issues are those on the law-and-order side. So the incentives for candidates for city council, sheriff, DA, coroner and other positions with some influence over criminal justice policy remain the same. Reformers get flack from law enforcement groups, police unions, victims’ rights organizations and prison guard unions. These groups know that these races involve little money, that they have low voter turnout and that voters are easily impressionable — they tend to vote for the incumbent unless someone gives them a reason not to.
We tend to view stop-and-frisk, how police respond to protest, lethal force policy, police militarization, police accountability and transparency, body cameras, prosecutorial discretion, “open file” policies in criminal cases, the ordering of law enforcement priorities and other issues of law enforcement powers as policies that are set by the courts, not by elections. But as I’ve argued here at The Watch before, there’s no reason that should be the case. The courts set the ceiling on what police and prosecutors can do under our U.S. and state constitutions. There’s no reason why voters couldn’t elect candidates to set the legal limits on law enforcement powers considerably lower.
If criminal justice reformers want to change policy at the local level, then, they need to get more involved in electoral politics. They need to start PACs and super PACs. They need to target high-profile prosecutors and sheriffs who abuse their positions and authority. They could target mayors and city council members who side with police after questionable shootings. They could ask candidates for all of these positions where they stand on issues such as how police shootings are investigated, how police officers use force, the prosecution of low-level crimes such as drug crimes and if they support policing policies such as “broken windows.” They should ask mayoral candidates whom they might appoint to head up the city’s police department.
There are at least a few examples where this has worked. Longtime Brooklyn DA Charles Hynes was ousted after a concerted campaign to educate voters about his record. Previously, he’d coasted to reelection. Several years ago, two sitting judges in Colorado were kicked off the bench after activists waged a campaign to educate voters about how when the two were prosecutors, they withheld exculpatory evidence in the wrongful conviction of Tim Masters. You could also argue that opposition to stop-and-frisk policies were a big factor in the election of New York City Mayor Bill de Blasio.
The upside here is that these campaigns don’t all need to be successful to have an impact. Just a few high-profile targets are likely to generate a lot of free media coverage, and just a couple of successful campaigns to an oust an incumbent could have a significant impact on how public officials think about these issues. You don’t necessarily need to win to put yourself on the radar and lodge yourself in the back of the minds of the people who make these policies at the local level. Currently, they’re only answerable to one side. Even a little pressure from the other side could go a long way.