Jurisprudence

The New Ground Zero for Criminal Justice Reformers Is Ferguson

Wesley Bell
Wesley Bell.
Josi Nielsen

The movement to end mass incarceration has come full circle to Ferguson, Missouri. The home of the 2014 uprisings over the fatal shooting of Michael Brown has joined a number of locales as testing grounds for the proposition that prosecutors who prioritize criminal justice reform can operate in a system where legislative and systemic reform have yet to occur. St. Louis’ officials, criminal justice reform advocates, and their opponents are learning from each other and from other jurisdictions. Achieving results has been more challenging at times than in other places, but criminal justice advocates have adapted as have skeptics. St. Louis County’s new top prosecutor, meanwhile, has had to battle his own office’s efforts to unionize with a police group that has called for another local reform prosecutor to step down. The battles of St. Louis show that as this new breed of prosecutors has become more savvy and brazen, so have groups seeking to exert influence from the outside.

Last year, riding on the back of the Ferguson protest movement, Wesley Bell unseated a 27-year incumbent known for his cozy relationship with cops to become St. Louis County’s first black prosecuting attorney. Just shy of two months in office, Bell has already laid out major policy changes, and—in his first week in office—let go of three veteran prosecutors, including the one in charge of presenting evidence to the grand jury that declined to indict Darren Wilson for fatally shooting Brown.

In an internal memo released on his second day in office, Bell instructed his attorneys to stop criminally charging people for possessing fewer than 100 grams of marijuana or for getting behind in child support payments. Following in the footsteps of Philadelphia District Attorney Larry Krasner, Bell told his lawyers not to ask for cash bail to be set for defendants accused of misdemeanors or minor nonviolent felonies. Also reminiscent of Krasner, Bell wrote that his attorneys should not “overcharge” defendants or “pressure the accused to admit guilt.” Finally, in the publicly announced “Bell Plan,” he described how his office would expand alternative-to-incarceration programs for defendants struggling with addiction and mental health disorders.

“We can’t overstate how important his win is in the context of Ferguson,” said Kayla Reed, co-founder of Action St. Louis.

Bell came to office about two years into a wave of reform-minded prosecutors in jurisdictions across the country—including the neighboring city of St. Louis, where Circuit Attorney Kim Gardner has faced an uphill battle to reform that office. The local activists who propelled Bell into office have also taken lessons from the personal experience of their counterparts across the country on how to best influence friendly, reform-minded politicians once they are in office. “With Kim, we kind of had a hands-off approach to letting her lead,” said Reed. “But with Wesley, we are having much more hands-on engagement so that we can ensure campaign promises and agreement around issues.”

Likewise, Bell’s foes have had greater opportunities to strategize. The most outspoken critics of both Bell and Gardner have been local police unions—specifically, the St. Louis Police Officers’ Association. The SLPOA’s leadership has been criticized for racism over the years but has seemed to be energized by new and adversarial relationships with the area’s top prosecutors. Most recently, SLPOA called for Gardner to step down from office last month after she charged two officers in a shooting case. The organization has also posted Facebook posts saying things like “[police] are under siege by [Gardner]” and “[t]he criminals are in charge now. They own the streets.”

Two weeks before Bell took office, St. Louis County prosecutors and investigators voted 33–11 to join the SPLOA. “We knew there would be some type of blowback, but that was really unexpected,” said Montague Simmons, a leading community organizer in St. Louis. “For them to be aligned with that union was telling beyond anything.

“We’d like to give this guy a chance, but we have some serious concerns about his version of criminal justice reform,” SLPOA business manager Jeff Roorda told Slate. “The biggest concern is that the biggest part of his job is to [advocate] for crime victims and we don’t know that he takes that seriously.” Roorda also noted that he disagreed with Bell’s decision to reduce charges against a man who pleaded guilty to shooting at an officer from first- to second-degree assault.

Still, tension around the union hasn’t soured office dynamics on a day-to-day basis, according to Josi Nielsen, Bell’s spokeswoman. Veteran prosecutors are “realizing that this was not the disaster that it had been made out to be.”

Compare Bell’s tenure to that of Krasner, and you can see a difference in the degree of pushback and the amount of change enacted. During his first week in office, Krasner let go of 31 staff attorneys. Prosecutors in St. Louis County may have been motivated to unionize after observing what happened in Philadelphia, but ultimately there has not yet been a similar house cleaning. As it stands, the SLPOA cannot take legal recourse against Bell even for the three firings he did initiate, or protect the jobs of the rest of Bell’s staff, because Bell has not recognized the union. “We have demanded to meet to negotiate a union contract, but he refuses to talk to us,” said Roorda. “We’ll sue if we have to.”

In a statement, Bell said that he would not proceed with an agreement until several legal and ethical issues are resolved. Those include the legality of a unionization vote that was overseen by a privately retained mediator rather than a public official, the fact that his employees do not fall under the umbrella of public safety laborers because they do not have the power to arrest, and the fact that there would be a conflict of interest should his office prosecute police officers because of possible overlapping jurisdictions. An ongoing lawsuit could ultimately nullify the election.

On the other side of this tug-of-war, the activists and advocates who campaigned to get Bell into office are relying on tested strategies. For example, Reed’s group, Action St. Louis, is part of the St. Louis County Reform Coalition, a group of nine local and national organizations.
Reed explained that the group is modeled after Philadelphia’s Coalition for a Just DA.

“There is no need to spend a lot of time re-creating the wheel when there is some knowledge and expertise already out there,” she said. Some cues taken from Philly: the appointment of specific coalition members to take the lead on specific issues such as bail or immigration, the establishment of regular meetings with the prosecutor’s office (Bell committed to meet quarterly), and the composition of a list of demands for the first 100 days.

Also learned from Philly: a prosecutor’s supporters can be his fiercest watchdogs. The ACLU of Pennsylvania, for example, has monitored the courts to ensure that Krasner is able to keep his cash-bail promise. The civil rights group watched 650 bail hearings and concluded that, despite the policy changes, the Philadelphia criminal court was still jailing people based on wealth. Krasner has attempted to greatly roll back the use of cash bail, not seeking it in roughly 61 percent of cases. But bail decisions are ultimately up to the bail commissioner, even if an assistant district attorney’s recommendation can hold significant sway. Still, by and large, the new bail policy has been a success. A recent George Mason Legal Studies paper showed that in 2018 there was a 22 percent decrease in the number of people who spent at least one night in jail, with no increase in recidivism or missed court dates. At the same time, bail commissioners have kept on cash bail 10 percent of the misdemeanor defendants and two-thirds of the felony defendants who should have been protected by Krasner’s policy shift. “Everyone understands that these are the policies at the top and that doesn’t always mean that it’s going to be implemented immediately,” said Sara Mullen, ACLU of Pennsylvania’s policy director. But that doesn’t mean the group is remaining silent—the ACLU of Pennsylvania addressed the courts with its concerns about implementation of Krasner’s policies in a Sept. 11 letter and could file a federal lawsuit.

In St. Louis County, meanwhile, the ACLU of Missouri is setting up its own court monitoring program, with tips from Pennsylvania. “We’re happy with what [Bell is] rolling out, but implementation is another thing” said Sara Baker, ACLU of Missouri’s legislative and policy director. “There is need for outside accountability.”

Among reform-minded prosecutors, Bell is unique for coming into office with a thorn from the police union already in his side. But his support network also stands out for its preparedness. This political landscape could be a bellwether of what future prosecutors seeking to decarcerate their jurisdiction should expect.