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Justice reform trend visible in district attorney primaries

| May 17, 2018 | Criminal Defense

District attorneys are among the most influential actors in the criminal justice system. They decide where to focus prosecutorial resources. They determine whether to charge the most serious provable offense or lesser offenses. They choose whether to stack charges, and whether to choose charges carrying harsh, mandatory minimum sentences. They decide what to offer in plea negotiations, and whether to threaten additional charges against uncooperative defendants.

All those decisions are more or less entirely up to district attorneys. They have virtually unlimited discretion in charging decisions and are given their way in the vast majority of plea bargains, which account for over 90 percent of criminal convictions.

Over the past few decades, both incumbents and challengers in DA races have focused on being “tough on crime” and aggressively prosecuting the War on Drugs. Moreover, an estimated 95 percent of incumbent DAs win reelection.

This has led to an almost uniformly punitive approach to criminal justice across the nation — even though crime has fallen to near-historic lows. Between 1994 and 2008, according to an analysis of state judiciaries, the number of actual crimes and arrests fell, but the number of felony charges went up.

That analysis shows that district attorneys are driving mass incarceration. While federal prosecutors are certainly punitive in their charging and sentencing decisions, most of America’s incarceration occurs at the state level, where DAs are in charge. 87 percent of American prisoners are held in state facilities.

It makes sense, therefore, for criminal justice reform to be achieved at the state and local levels. But how will anything change if most district attorneys remain committed to “tough on crime” and the War on Drugs?

The game may be changing. All across America, reformers committed to ending mass incarceration and the War on Drugs are running for election as district attorneys — and they’re winning.

Last year, reformer Larry Krasner was elected as the district attorney in Philadelphia. Since then, he has declined to prosecute any further cases of marijuana possession. And yes, he has the legal discretion to do that. 

In the most recent round of primaries, at least two reformers won their party contests for district attorney. Defense attorney Faris Dixon won in Pitt County, North Carolina, while reformer Satana Deberry won in Durham County on a platform of resisting the War on Drugs, ending cash bail and holding police accountable for misconduct. Deberry faces no challenger in November.

Criminal justice reform should not be a partisan issue. There are demonstrable inequities in our system which need to be addressed. District attorneys are in a powerful position to help or hinder needed changes. This fall, pay close attention to your local DA race.

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“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)