Making the case for change

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Roughly four months before she died, Rep. Louise Slaughter asked attorney Christopher Thomas to breathe new life into the Democratic Lawyers Committee. Thomas, who was Slaughter’s election lawyer for several years, says when Slaughter “asked” him to do something, he took it as a direct order.

Just as Slaughter wanted, Thomas has reinvigorated the group, which is part of the Monroe County Democratic Party but operates independently, drawing young, dynamic and diverse attorneys together. Some 35 to 40 lawyers gather, on a regular basis, to vet judicial candidates and discuss the need for criminal justice reform including alternatives to mass incarceration. Their immediate focus: elections in 2019.

“In addition to vetting qualifications, we also started focusing on how can we make the judiciary more representative of the population it serves, encouraging excellent, diverse candidates to run,” says Thomas, a commercial litigator at Nixon Peabody.

Source: Gavel Gap

The lack of racial and gender diversity in American courts has been a contentious issue in recent years. Scores of reports have shown the disparity on the bench. In New York, the American Constitution Society for Law and Policy, through its Gavel Gap research, shows 54 percent of state court judges are white men compared with 14 percent of men of color. White female judges comprised 22 percent, twice that of women of color. The composition of the state courts does not reflect New York’s population, the research notes. For example, though women make up slightly more than half of the population, less than one-third of state judges are women. 

Thomas and others on the committee and in the community find this plays out on the local level as well. 

“Diverse people have been able to get elected to the bench in City Court, but above City Court, in County Court, Family Court and state Supreme Court, there is virtually no diversity,” Thomas says. “That is troubling. That lack of diversity is seen and known by people of color, particularly those who appear in those courts.”

He acknowledges that the Democratic Party has traditionally focused on legislative and executive races.

“It is pathetic that we’re talking about the need for diversity,” Thomas says. “I blame ourselves as much as I blame anybody else for not recognizing, cultivating and supporting diverse candidates in the past. Those days are gone.”

Setting the stage

Perhaps the biggest boost for the DLC was Fatimat Reid’s win as Family Court judge in November. Though she didn’t win, candidate Zuleika Shepard’s strong showing also sparked hope. 

“One party leader told me that whites won’t vote for blacks in Monroe County. Another told me that they should not run at all,” Thomas says. “Sadly, based upon history, these were not irrational statements. But these candidacies were different: they were aspirational. They were about who we can be here in Monroe County, not who we have been.”

Christopher Thomas

He says those races were a team effort. DLC members made presentations that discussed the need of a diverse bench to local progressive groups who perceive the Monroe County Democratic Party as a closed group or too conservative. 

“Local progressives immediately understood the urgent need,” Thomas says. “This started an amazing partnership between our group and an array of progressive groups like Indivisible Rochester, ROCitizen and Moms Demand Action, who helped our candidates spread the word. MCDC under the leadership of Chairwoman (Brittaney) Wells provided essential technical support. There was a real groundswell.”

Reid’s run came about, in large part, due to the DLC, observes Michael Wolford, partner at the Wolford Law Firm, who is no stranger to political races. Wolford was among others who organized a fundraiser for her and Shepard at the outset.

“The fact of the matter is that there have been candidates for judicial office who have been basically selected because of one or two people in the political apparatus that selected them, rather than a group of attorneys—not that they have all the wisdom in the world, but at least they’re people who’ve had experience with some of the (potential) candidates and are able to exercise some judgment and encourage people,” Wolford says.

He recalls supporting Joe Valentino, a Democrat, in 2001 for state Supreme Court. Valentino was up against Mary Doyle, wife of former County Executive Jack Doyle. Valentino won that fight.

“That was a big upset because usually Democrats running for Supreme Court in the Seventh Judicial District are at a distinct disadvantage because of the enrollment,” Wolford says.

Says Thomas: “There’s nothing like a shocking win to fuel interest. Fatimat’s win and Zuleika’s great showing have fueled tremendous interest in diversifying the bench and diversifying policies so that they work better for everyone.”

The committee is backing Mike Dollinger and Karen Bailey Turner for County Court this year. It has now turned its attention to the race for district attorney.

Opportunity for dialogue

The district attorney election is viewed by progressive attorneys as a way to start a dialogue about criminal justice reform. The district attorney is the county’s chief prosecutor, charged with prosecuting felony and misdemeanor crimes and violations. Republican Sandra Doorley, Monroe County’s first female DA, is up for re-election in November. First elected as a Democrat in 2011, she switched parties when seeking a second term in 2015.

“The district attorney is the most powerful player in the criminal justice system and I think if we have a progressive district attorney, we really have a chance to reform the system (and) also immediately impact the lives of so many people,” says Danielle Ponder, attorney and DLC member. 

Ponder believes the nature of the district attorney’s role allows for policy changes.

“It doesn’t have to go to a vote … so you’re in a position to really do something for the good of the community,” she says. “Unfortunately, we have an office that is not progressive and is really behind the times.”

Doorley was not available for comment earlier this week, but late last month she shared details of Project Heroin Overdose Prevention & Education, a program designed to redirect low-level drug offenders to health and treatment centers instead of courts and jail. Modeled after a program in Staten Island, Project HOPE is a post-arrest, pre-arraignment program for such offenders. A police officer encountering an individual who meets the project’s eligibility criteria—including a top charge of criminal possession of a controlled substance in the sevendegree, a class A misdemeanor—can offer Project HOPE as an alternative to prosecution.

“At the Monroe County District Attorney’s Office in conjunction with the Rochester Police Department and the Monroe County Sheriff’s Office, we are not interested in prosecuting victims of addiction, but sending them to a successful and realistic recovery plan,” Doorley said in a statement at that time.

Stacey Trien, attorney at Leclair Korona and Cole LLP, says promoting candidates with progressive values translates into a community-centric approach, focusing beyond incarceration and plea statistics.

“I don’t think a lot of people understand the amount of discretion that the district attorney actually has as far as what charges they’re charging people with and how they’re using the plea system and the bail that they’re asking for and all of those things that have an impact on people’s lives,” she says. 

Thomas says the DLC is working to bring a policy discussion to the district attorney’s race that centers on clear ways the criminal justice system can be made less draconian for the poor and people of color.

“The traditional approach of branding so many people with criminal records, especially for misdemeanors, has exacerbated challenges faced by poor people,” he says. “Once someone is branded with a criminal record, they cannot get into the military or law enforcement. They cannot obtain certain student loans. If education is supposed to be a way out of poverty, how does that help us? Worst of all, it makes it almost impossible to ever get a job. How does that make us safer or our communities stronger?”

Criminal justice reform

The United States has more inmates than any other nation in the world and also has the highest incarceration rate—860 per 100,000 adults. Though the number of incarcerated individuals in 2016 was down 6 percent from its peak in 2008, those advocating for policy changes point to evidence that minor offenders continue to take up prison space. 

“I had a client who went to jail for a year for driving on a suspended license,” Ponder says. “So, the taxpayers just paid $60,000 to house him for that year.” 

She adds: “People are clear that we are wasting money. People are understanding that we have the highest incarceration rate in the world, we are spending millions and millions of taxpayer dollars on incarcerating people and not really rehabilitating people and then just we have policies that are pretty archaic and pretty asinine.”

Criminal justice reform is a hot-button issue, especially with the bipartisan passage of the federal FIRST STEP Act. DLC members would like the Monroe County DA’s race to focus on the Brennan Center for Justice’s 21 Principles for the 21stCentury Prosecutor, engaging the community in a policy discussion.

“What we’re really trying to do is to start a community conversation about what sort of policies are best going to keep our community safe and reduce harm to people that get dragged into the maw of the criminal justice system either through fault of their own or that they were in the wrong place at the wrong time,” Thomas says.

He would like the criminal justice system to move away from the “meat-grinder default setting,” where defendants are overcharged or held on cash bail they’re unable to pay.

The Brennan Center contends that prosecutors are well-positioned to make changes that can roll back overincarceration. Its 21 Principles are illustrations of new approaches, with the understanding that all jurisdictions may not be able to use them. Designed in two parts, “How to Reduce Incarceration” and “How to Increase Fairness,” these principles attempt to put forth a new vision for meting out justice.

“What we’re looking at is absolutely not a ‘soft-on-crime’ approach. Rather, it’s about protecting the community against that relatively small number of hardened criminals while working to help others get their lives back on track,” says Thomas, adding that it is a far more aggressive use of diversion and an equally aggressive effort to find and prosecute murderers, rapists and armed robbers.

The Brennan Center, in its first principle “Make Diversion the Rule,” uses an example from Washington, D.C., where a six-month diversion program, Alternatives to the Court Experience, serves teenagers who commit offenses such as shoplifting. The program coordinators assess stress, trauma and health needs, including therapy, tutoring and monitoring. In the program’s first two years, more than 90 percent of ACE participates were not rearrested. 

The Brennan Center proposal: Let diversion precede charges, enabling individuals to stay out of the criminal justice system, offering an alternative to incarceration.

ROCitizen’s co-director Ravi Mangla views reform with a focus on diversion as a good move. With 50 active members, ROCitizen is a grass-roots nonprofit focused on building a healthy, sustainable and just community. 

“We recognize that the criminal justice system has had extremely disparate outcomes especially for people of color and low-income people over the course of generations and we want to see the criminal justice system transform to emphasize things like diversion as opposed to the kind of system of punishment that’s been used for many, many years especially for small-time drug offenders, for sex workers and for many other folks who get caught up in the system because of its punitive nature,” Mangla says.

In a separate report, the Brennan Center offers a blueprint to make policy solutions achievable. The center attempts to highlight examples and created model legislation with different jurisdictions in mind.

Thomas points to an example in Philadelphia’s Larry Krasner, touted as a progressive district attorney and also an improbable candidate, who won that office in November 2017. His platform included, among other issues, ending mass incarceration to focus on 6 percent of offenders who commit 60 percent of the crimes in Philadelphia. Reports suggest Krasner has faced and still faces daunting challenges.

Getting community support 

Is Rochester ready for change? DLC members and ROCitzen believe so.

“I think that people are generally energized right now and there are a lot of more liberal- and progressive-thinking people in the area who are very energized and want to do something to help their community and their country,” Trien says. “We need to get the word out that they don’t wait for the presidential election of 2020, that there’s a race this year that they can come out for. We want to try to harness some of that energy and get people to realize that there is something they could be doing this year to make a big impact without just waiting around for 2020.”

Historically, Democrats have not paid much attention to judicial races, Mangla notes, adding that now Democrats and others on the left are more invested in the outcome.

“I think it’s fantastic what the Lawyers Committee is doing,” he says. “Clearly they really understand that we need diversity on the bench, both diversity in terms of people who reflect the community that they’re serving as well as diversity of experience. Because most of the people who sit on the bench both (here) and around the country often come from a prosecutorial background and that’s just one lens. … Many of them maybe reform-minded, but it’s looking at the system from one angle. So, I think there’s a lot of value in recruiting people to judicial seats who come from civil law, who are public defenders and who bring different experience.”

Says Thomas: “Democrats and Republicans have been equally regressive when it comes to equity in the criminal justice system. Nelson Rockefeller and Bill Clinton are just two examples, amongst scores of others, leading to today. Locally, I’ll support all candidates who show a genuine understanding of and a true commitment to significant improvements in fairness for the poor and people of color. Election-year platitudes won’t suffice and are easy to see through.”

In a recent development, Shani Curry Mitchell entered her name as a contender for district attorney. She declined to speak with me, saying she’s not doing interviews before the Democratic Convention.

Whoever ends up on the ticket, it is going to take effective organization for a progressive candidate to win. DLC members like Ponder are actively working with groups like ROCitizen to educate the community and get the word out. Meanwhile, Just Leadership, another group Ponder works with, keeps working its message. Last month, 500 parents, educators and others traveled to Albany to urge lawmakers to focus on schools, not jails. 

It is still early days for endorsements, but there’s a fervor among DLC members that’s hard to miss.

“We get stuck in a cycle where old policies get barely reinterpreted,” Thomas says. “What we’re trying to do this year is to have a significant public policy discussion that spans the entire county, from the most liberal to the most conservative person. Make no bones about it, it’s going to be hard.” 

2 thoughts on “Making the case for change

  1. “[L]ocal progressive groups … perceive the Monroe County Democratic Party as a closed group or too conservative”, and I would add, moribund. Perhaps Mr. Thomas can make some progress with the MCDP.
    Regarding criminal justice reform, I am concerned that we are further privatizing criminal justice even as we make reforms. The FIRST STEP act, backed by the Koch brothers, enables lots of profit-taking by those who sell ankle braces and other accouterments of early release programs. I read that the Koch brothers own just such a firm — imagine that. Let’s get criminal justice (and government in general, especially education) back into the people’s hands.

  2. I’m hopeful that Christopher Thomas is not implying that the color of a judge impacts his/her wisdom, ability to serve, or fairness…..

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