The 2021 Democratic primary for district attorney in Philadelphia had all of the elements of a political drama: A reformer incumbent who spent his career challenging the criminal legal system versus a career prosecutor whom the current DA fired at the start of his tenure. A powerful police officers’ union trying to hold onto political power by boosting the challenger with a series of theatrical stunts. The old guard of the city’s Democratic party committee refusing to endorse the incumbent while progressive elected officials supported him.
In the end, Larry Krasner dusted Carlos Vega; Krasner earned more than double Vega’s vote total. And while the Republicans have nominated a candidate for November’s general election, Krasner will almost certainly earn himself a second four-year term in a city in which registered Democrats outnumber Republicans seven-to-one.
The ACLU is famously and stridently nonpartisan. We do not endorse candidates for office. But we’re also not naive to the impact that election campaigns and the candidates who run in them have on civil liberties. An electoral campaign can set the tone - for better or for worse - for how the prevailing candidate will govern.
What does Krasner’s victory mean for civil liberties? Krasner has tackled some of the great injustices that his predecessors carried out. He also has more work to do to effectively improve the criminal legal system in Philadelphia.
The good
Conviction integrity unit successes: Previous district attorneys engaged in behavior that directly led to innocent people being convicted of crimes and spending years in prison. And even when evidence of a person’s innocence came to light, the DAs who came before Krasner would continue to fight their appeals, most famously in the case of Anthony Wright, who was retried by DA Seth Williams, with Carlos Vega as co-lead prosecutor, despite DNA evidence proving his innocence.
Krasner changed that. Although the conviction integrity unit was started by Williams, it’s been Krasner who has given the unit’s work real meaning. The result? Twenty innocent people, who combined lost hundreds of years of their lives in prison, have been exonerated in the three-plus years that Krasner has been DA. They include people like Walter Ogrod, who was sentenced to death based on the word of a jailhouse snitch and a highly questionable confession, and Obina Onyiah, who prosecutors say was beaten into confessing by Philadelphia police officers.
Through the conviction integrity unit, Krasner has made clear that the old way of doing business in the DA’s office is over.
A halt to the death penalty: Historically, Philadelphia has been responsible for populating much of Pennsylvania’s death row. Former DA Lynne Abraham earned the moniker “the Deadliest DA” for her zealous pursuit of capital punishment. When Pennsylvania Governor Tom Wolf implemented a moratorium on executions in 2015, it was Williams who sued to overturn Wolf’s order. (Williams lost.)
Now, Krasner has brought de facto death penalty abolition to Philadelphia. During his tenure, the DA’s office has yet to prosecute a capital case and has stopped pursuing appeals in some death penalty cases.
Slowing the war on drugs: Philly’s marijuana decriminalization ordinance, which gives police a non-criminal, civil mechanism for addressing marijuana possession and public consumption, was passed and implemented before Krasner became DA. That ordinance led to thousands of cannabis consumers staying out of the criminal legal system. But marijuana possession is still a misdemeanor crime under state law, and Philadelphia police still arrest hundreds of people under that law every year, disproportionately Black people.
Krasner stopped prosecuting those cases. By doing so, he kept those arrested from becoming entangled in the criminal legal system and, just as importantly, kept them out of mandatory treatment programs, which are typically unnecessary for cannabis consumers, saving space in those programs for people with severe substance use disorders.
Krasner also slowed the prosecution of other drug possession charges and supported the Safehouse safe injection site, a harm reduction strategy for people addicted to opiates. Other prosecutors, including then-U.S. attorney William McSwain and PA Attorney General Josh Shapiro, were on the wrong side of the issue.
Holding abusive cops accountable: Larry Krasner is not the first district attorney in Philadelphia to prosecute abusive or corrupt police officers. But none of his predecessors have been as committed to rooting out violent cops as Krasner. And now the DA’s office is before the Pennsylvania Supreme Court challenging the commonwealth’s use-of-force law, in a case stemming from the prosecution of Officer Ryan Pownall, who shot and killed David Jones as he fled from the officer.
The not-so-good
Krasner’s first term has not been without mistakes and challenges, though. In a second term, he and his team will have more to do to reform the criminal legal system.
Misuse of cash bail: Krasner made a big splash when he announced that the DA’s office would stop asking judges to issue cash bail orders for people charged with a long list of low-level offenses. At the time, Krasner promised this was the first part of a multi-part bail reform. That was notable and worthy of applause. However, Krasner has not gone further and continues to misuse cash bail. His prosecutors routinely seek to detain people and have been asking judges to issue bail orders of $1 million against certain defendants. The DAO is using cash bail as a weapon for pretrial detention.
There are two reasons to detain people before trial - because they are a flight risk or because they are a threat to public safety - and both the state constitution and the Pennsylvania Rules of Criminal Procedure prohibit using cash bail as a means of pretrial detention. Some of the people who have been issued $1 million bail orders may very well be threats to public safety, and we at the ACLU-PA are sensitive to Philadelphians who have very legitimate concerns about violence in their communities. But if a person is a threat, there is a judicial process for making that determination. Instead of adhering to the value of due process, Krasner and his team are using cash bail as a workaround to avoid making the case that a person is a public safety threat.
To add literal insult to injury, Krasner accused a local bail fund of facilitating the murder of a man who was killed after being released from detention when the fund paid his bail.
Treating kids as kids?: In 2017, Krasner ran on the idea that children should be treated as children, that youth who get mixed up in the criminal legal system should not be in adult jails or adult court. During the campaign, he claimed that this was a promise that he kept.
The reality is more complicated. Virtually the same number of youth are being charged as adults as before Krasner became district attorney, due in large part to Pennsylvania’s “direct file” law, which requires that young people accused of certain crimes start in adult court. During Krasner’s first three years in office, more of those cases have been moved to the juvenile system than in the past, through a process known as “decertification” or “reslate” agreements. This has largely happened with agreement from the district attorney’s office.
But Krasner’s team has included strings on many of those agreements. According to advocates, in approximately two-thirds of those cases observed in 2018 and 2019, the DA’s office insisted that the young people who were being transferred to the juvenile system had to plead guilty. This is an extremely coercive practice; the DA’s office has insisted that youth give up their right to a trial in exchange for getting out of the adult system. At a hearing before City Council last year, Krasner committed to ending that practice. While data is more difficult to track now because COVID-related restrictions have limited court watching, it is estimated that prosecutors are still including these conditions in at least one quarter of those cases.
Finally, today, there are 33 children detained in adult jails in Philadelphia, and all are being held pretrial. In normal times, an adult jail is no place for a child. That problem is compounded by the deteriorating conditions in the Philadelphia jails due to extreme restrictions implemented by the Department of Prisons under the guise of stopping the spread of COVID-19.
Conclusion? Nice work. Now do more.
There’s an old saying that good policy makes good politics. Carlos Vega and his pals at the Fraternal Order of Police had a clean, one-on-one chance to end Larry Krasner’s tenure in the DA’s office. But Philadelphians showed that they are ready - and hungry - for a different approach to criminal law, that the old way championed by the likes of Lynne Abraham and Frank Rizzo will no longer be tolerated. The ACLU of Pennsylvania looks forward to working with the DA when we agree. And we will hold him to account when he fails.
