Rogue Prosecutors and the Rise of Crime

The following is adapted from a talk delivered on March 11, 2024, at the Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship on Hillsdale’s Washington, D.C. campus, as part of the AWC Family Foundation Lecture Series.

The writers of our Constitution placed their faith not in specific guarantees of rights—those came later—but in a system of checks on government power. Foremost is the separation of powers among the three branches of the federal government, as well as between the federal government and the states. For this system to work as designed, people in each branch of the federal government and in the state governments must do their jobs and stay in their respective lanes.

But what happens when district attorneys—members of their states’ executive branches—refuse to execute the laws of the land? We are witnessing the results today in blue cities across America.

Approximately 90 percent of criminal cases in the U.S. are handled by the 2,300 elected district attorneys spread across 3,143 counties. The rest are prosecuted by U.S. attorneys operating under the Department of Justice. Until recently, elected county district attorneys upheld their end of the social contract by firmly and fairly enforcing state criminal laws and protecting citizens’ rights. Regardless of party affiliation, these gatekeepers of the criminal justice system did their job. Over the last 30 years, they played a critical role in driving down crime rates, which peaked in 1992, by prosecuting violent criminals, while at the same time creating thousands of alternatives to incarceration, such as drug courts, domestic violence courts, mental health courts, and other highly successful programs.

That changed in 2015 with the launching of the George Soros-funded “progressive prosecutor” movement. This movement is animated by two beliefs. The first is that the entire criminal justice system is systemically racist. The second is that the only way to fix the system is to dismantle it by replacing law-and-order district attorneys with pro-criminal and anti-police district attorneys. The sick irony of this movement is that in the areas where it has prevailed, the most harm has been done to the racial minorities whose interests it purports to represent.

Origins of the Movement

The progressive prosecutor movement—more accurately called the rogue prosecutor movement—is the predictable outgrowth of efforts by earlier Marxist radicals to alter or destroy the American way of life. At its root is the belief that our country and its institutions, including capitalism, are racist. One of the early leaders of the movement to abolish prisons is the infamous Angela Davis, now in her 80s, who in her 2003 book, Are Prisons Obsolete?, equated prisons to modern-day slavery. “The prison,” she wrote, “has become a black hole into which the detritus of contemporary capitalism is deposited”; throwing people into prison, she continued, “relieves us of the responsibility of seriously engaging with the problems of our society, especially those produced by racism and, increasingly, global capitalism.”

Patrisse Kahn-Cullors and Alicia Garza (a.k.a. Alicia Schwartz), co-founders of Black Lives Matter, have also had an enormous influence. Cullors, a militant radical and convicted felon, is a protégé of the director of the Labor Community Strategy Center, whose purpose is to build an anti-racist, anti-imperialist, anti-fascist united front. Garza said at an international gathering of Marxists in 2015: “It’s not possible for a world to emerge where black lives matter if it’s under capitalism. And it’s not possible to abolish capitalism without a struggle against national oppression and gender oppression.” During a 2017 PBS interview, Garza heaped praise on Angela Davis for her work exposing the “carceral state”—i.e., a state in which people are incarcerated in prisons—and called for its dismantling.

The involvement in this movement of billionaire George Soros, who had been funding liberal causes for years, can be traced to his hiring of attorney Whitney Tymas in 2015. Tymas, who had worked as a public defender and prosecutor, was connected to the Vera Institute of Justice, where she focused on “the role of prosecutors in perpetuating racial disparity.” There she met the ACLU’s Chloe Cockburn, who was working to end “mass incarceration,” and they discussed the role of prosecutors, the low visibility of elections for county district attorneys, and the fact that most people don’t even know who their local D.A. is.

As opponents of the death penalty, Tymas and Cockburn hatched a plan to elect anti-death penalty prosecutors and persuaded Soros to give over $1 million to groups that were successful in electing such district attorneys in Louisiana and Mississippi. Eventually, that modest aim—to unseat pro-death penalty prosecutors—grew into a national movement with a more ambitious goal. Emily Bazelon, New York Times Magazine staff writer and Soros media fellow, summed up the goal in terms of “mak[ing] the system operate differently” by electing “prosecutors who will open the locks” of prisons. Rachel Barkow, a law professor and former member of the U.S. Sentencing Commission who supports the rogue prosecutor movement, summed up its goal as follows: “to reverse-engineer and dismantle the criminal justice infrastructure.”

This well-funded and organized movement is not about liberal versus conservative, Democrat versus Republican, or black versus white. It is about power.

From the start, the movement focused on the fact that prosecutors, not police, are the gatekeepers of the criminal justice system. District attorneys decide whether to file charges and which charges to file. By replacing traditional prosecutors with attorneys who see defendants as victims, it would be possible to “reverse-engineer” and “dismantle” the existing criminal justice system.

It is no coincidence that Soros, the various political action committees that he controls or funds, and his wealthy far-Left allies have given huge financial support to rogue prosecutor candidates in deep blue cities. They target these cities because their electorates are not paying close attention to down-ballot races and can be misled through a bombardment of often misleading advertisements.

Over the past decade, Soros has spent more than $40 million on campaigns to elect rogue prosecutors. One group has estimated that he has donated as much as $1 billion to the cause, if policy infrastructure, media relations, sponsored academic and think tank papers, lobbying campaigns, and grassroots organizing are taken into account. Other billionaires, like Mark Zuckerberg, Facebook co-founder Dustin Moskovitz and his wife Cari Tuna, and Patty Quillin, the wife of Netflix CEO Reed Hastings, have also generously contributed to the cause.

The Playbook

One of the hallmarks of the rogue prosecutor movement has been its usurpation of the constitutional role of state legislatures. Once elected, rogue prosecutors refuse to prosecute entire categories of crimes that are on the books in their states, justifying their refusal by claiming “prosecutorial discretion.” But in fact, their refusal to prosecute crimes violates the separation of powers between the executive and legislative branches of government and distorts the entire legal system.

Prosecutorial discretion is not limitless. The principle behind it requires the enforcement of laws except in cases when prosecutors believe in good faith that an applicable law is unconstitutional. It does not give prosecutors the power to redefine crime and punishment. By refusing to prosecute entire categories of crime, they are in effect repealing criminal statutes—acting in place of the legislature. This is prosecutorial nullification, not discretion.

Valid prosecutorial discretion takes many forms, but when we allow for the chronic violation of law, we erode the foundation of our cities and civilization—and respect for the rule of law evaporates.

Today, there more than 70 rogue prosecutors across the country. They represent more than 72 million people, or one in five Americans, and they proudly refuse to prosecute most misdemeanors, claiming that these are essentially harmless “quality of life” crimes that divert scarce resources. To take one example, Rachael Rollins, the former district attorney of Suffolk County (Boston), posted a list of 15 misdemeanors her office would not prosecute, including trespassing, shoplifting, larceny under $250, disturbing the peace, receiving stolen property, operating a vehicle with a suspended or revoked license, wanton or malicious destruction of property, and possession with intent to distribute illegal drugs.

Other rogue prosecutors have followed suit. George Gascon, the district attorney of Los Angeles County, issued a written directive to his 1,000 prosecutors detailing the 13 misdemeanors that “shall be declined or dismissed before arraignment and without conditions” unless certain exceptions or other “factors” exist. In the same directive, he said it is not “an exhaustive list,” and that each prosecutor has the discretion to decline any of the hundreds of other misdemeanors in the California penal code that fall within the “spirit” of his directive.

Two weeks into the job, Kim Foxx of Chicago, the first big city Soros-funded rogue prosecutor, unilaterally raised the bar for prosecuting felony shoplifting from $300 per incident to $1,000 per incident, essentially declaring open season on retail stores. Philadelphia’s Larry Krasner, San Francisco’s former district attorney Chesa Boudin, New York City’s Alvin Bragg, and others have acted similarly, contributing to the tsunami of shoplifting and organized theft from retail stores and pharmacies to national chains and family-run stores. Not surprisingly, many stores in these cities have closed.

Krasner was elected to office in Philadelphia in 2018 with the help of $1.7 million from Soros-funded groups. He celebrated on election night by calling himself a “public defender with power.” The first day in office he fired 31 experienced violent crimes prosecutors, referring to them as “ticks.” This is common practice among the rogue prosecutors, who replace career prosecutors with public defenders or law students who sympathize with defendants and view the police suspiciously.

In addition to not prosecuting misdemeanors, rogue prosecutors often reduce felonies to misdemeanors and limit the number of charges a prosecutor can bring in a case to one, even though a suspect may have committed multiple offenses. One of Gascon’s most controversial directives in Los Angeles prohibits prosecutors from adding sentencing enhancements or allegations that would support such enhancements to an indictment—even though in some circumstances, California law requires prosecutors to do so. Prosecutors working in Gascon’s office cannot allege any three- or five-year priors, add gang enhancements, file three-strikes allegations, or allege special circumstances that would result in a sentence of life without parole or the death penalty.

In many cities, young gang recruits commit violent felonies to prove their “street cred.” Yet most rogue prosecutors refuse to prosecute violent teenagers as adults, instead sending them to juvenile court, where the worst punishment they can get is juvenile detention until they turn 21.

One of the most pernicious policies to come out of the rogue prosecutor movement is the refusal to ask for cash bail, which represents a guarantee by a defendant (or by a person acting on behalf of a defendant) that the defendant will show up for trial. The amount required for bail varies by jurisdiction and by crime. Those who cannot afford to post bail remain in custody pending trial. But district attorneys including Foxx, Gascon, and Boudin have directed their prosecutors not to ask for cash bail in many cases. And they do not seem bothered by the fact that this has led to additional crimes, including murder.

Predictable Results

Crime rates have exploded in the cities that have elected rogue prosecutors.

In the five years before 2018, when Larry Krasner was elected in Philadelphia, there was an average of 271 homicides per year. Since 2018, there has been an average of 457 per year—of which 83 percent of the victims were black. Non-fatal shootings have risen from an average of 1,047 per year to 1,588 per year; aggravated assault while armed with a handgun went from 2,209 per year to 3,116 per year; retail thefts went from 7,412 per year to 9,084 per year; and auto theft went from 5,691 to 8,665 per year.

In Chicago, in the six years before Kim Foxx became state’s attorney for Cook County in 2017, there was an average of 510 homicides per year. That number rose to 660 in her first year, and through 2022 it averaged 666 per year—with over 75 percent of the victims being black.

To put this carnage into perspective, between 2003 and 2010, there were 3,481 Americans killed in action in Iraq, an average of 435 per year. In the war in Afghanistan, between 2001 and 2014, there were 1,833 Americans killed in action, an average of 141 per year. Chicago’s annual murder rate dwarfs these figures. It is not an exaggeration to say that parts of Chicago, on any given weekend, have become domestic war zones.

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Although the rogue prosecutor movement is incredibly well funded, it is showing signs of electoral vulnerability. Voters in blue cities who were initially persuaded to vote for “reform minded” candidates who talked about “reimagining” the criminal justice system and eliminating so-called mass incarceration, are increasingly coming to their senses given the harsh reality of rising crime rates.

Voters in Baltimore and San Francisco have ousted rogue prosecutors Marilyn Mosby and Chesa Boudin, respectively. Ethically challenged rogue prosecutors Kim Gardner of St. Louis and Rachael Rollins of Boston have had to resign from their posts. George Gascon has barely survived two recall petitions in Los Angeles and most recently received only 25 percent of the primary vote in a field of eleven candidates.

The lesson for voters across America is to pay close attention to “low visibility” local races—such as district attorney races, which directly impact public safety—to protect their communities against the kind of devastation we see in so many of America’s once great cities.

Disparate Impact Thinking Is Destroying Our Civilization.

The following is adapted from a talk delivered on February 15, 2024, at a Hillsdale College National Leadership Seminar in Naples, Florida.

The most consequential falsehood in American public policy today is the idea that any racial disparity in any institution is by definition the result of racial discrimination.

If a cancer research lab, for example, does not have 13 percent black oncologists—the black share of the national population—it is by definition a racist lab that discriminates against competitively qualified black oncologists; if an airline company doesn’t have 13 percent black pilots, it is by definition a racist airline company that discriminates against competitively qualified black pilots; and if a prison population contains more than 13 percent black prisoners, our law enforcement system is racist.

The claim that racial disparities are proof of racial discrimination has been percolating in academia and the media for a long time. After the George Floyd race riots of 2020, however, it was adopted by America’s most elite institutions, from big law and big business to big finance. Even museums and orchestras took up the cry.

Many thought that STEM—the fields of science, technology, engineering, and mathematics—would escape the diversity sledgehammer. They were wrong. The American Medical Association today insists that medicine is characterized by white supremacy. Nature magazine declares that science manifests one of “humankind’s worst excesses”: racism. The Smithsonian Institution announces that “emphasis on the scientific method” and an interest in “cause and effect relationships” are part of totalitarian whiteness.

As a result of this falsehood, we are eviscerating meritocratic and behavioral standards in accordance with what is known as “disparate impact analysis.”

Consider medicine. Step One of the medical licensing exam, taken during or after the second year of medical school, tests medical students’ knowledge of anatomy, physiology, and pathology. On average, black students score lower on the grading curve, making it harder for them to land their preferred residencies. Step One, in other words, has a “disparate impact” on black medical students. The solution, implemented last year, was to eliminate the Step One grading disparity by instituting a pass–fail system. Hospitals choosing residents can no longer distinguish between high and low achieving students—and that is precisely the point!

The average Medical College Achievement Test (MCAT) score for black applicants is a standard deviation below the average score of white applicants. Some medical schools have waived the submission of MCAT scores altogether for black applicants. The tests were already redesigned to try to eliminate the disparity. A quarter of the questions now focus on social issues and psychology. The medical school curriculum is being revised to offer more classes in white privilege and focus less on clinical practice. The American Association of Medical Colleges will soon require that medical faculty demonstrate knowledge of “intersectionality”—a theory about the cumulative burdens of discrimination. Heads of medical schools and chairmen of departments like pediatric surgery are being selected on the basis of identity, not knowledge.

The federal government is shifting medical research funding from pure science to studies on racial disparities and social justice. Why? Not because of any assessment of scientific need, but simply because black researchers do more racism research and less pure science. The National Institutes of Health has broadened the criteria for receiving neurology grants to include things like childhood welfare receipt because considering scientific accomplishment alone results in a disparate impact.

What is at stake in these changes? Future medical progress and, ultimately, lives.

Standards are falling in the legal profession, which came up with the disparate impact concept in the first place. Upon taking office in 2021, President Biden announced that he would no longer submit his judicial nominees to the American Bar Association for a preliminary rating. Why? According to a member of the White House Counsel’s Office, allowing the ABA to vet candidates would be incompatible with the “diversification of the judiciary.” This claim was dubious.

The ABA, after all, cannot open its collective mouth without issuing a bromide about the need to diversify the bar. Its leading members are obsessed with the demographics of corporate law firms and law school faculties. This is the same ABA that gave its highest rating to a Supreme Court nominee who as a justice would make the false claim during a challenge to Covid vaccine mandates that “over 100,000 children are in serious condition [from Covid] and many are on ventilators.”

State bar associations are also busy watering down standards to eliminate disparate impact. In 2020, California lowered the pass score on its bar exam because black applicants were disproportionately failing. Only five percent of black law school graduates passed the California bar on their first try in February 2020, compared to 52 percent of white law school graduates and 42 percent of Asian law school graduates. The lack of proportional representation among California’s attorneys was held to be proof of a discriminatory credentialing system.

The pressure to eliminate the Law School Admission Test (LSAT) requirement for law school admissions is growing, because it too has a disparate impact. As a single mother told an ABA panel, “I would hate to give up on my dream of becoming a lawyer just due to not being able to successfully handle this test.” Note the assumption: the problem always lies with the test, never with the test taker. The LSAT requirement will almost certainly be axed.

The curious state of our criminal justice system today is a function of the disparate impact principle. If you wonder why police officers are not making certain arrests, or why district attorneys are not prosecuting whole categories of crimes—such as shoplifting, trespassing, or farebeating—it is because apprehending lawbreakers and prosecuting crime have a disparate impact on black criminals. Urban leaders have decided that they would rather not enforce the law at all, no matter how constitutional that enforcement, than put more black criminals in jail.

Walgreens, CVS, and Target would rather close down entire stores and deprive their elderly customers of access to their medications than confront shoplifters and hand them over to the law, because doing so would disproportionately yield black shoplifters, as the viral looting videos attest. Macy’s flagship store in New York City was sued several years ago because most of the people its employees stopped for shoplifting were black. The only allowable explanation for that fact was that Macy’s was racist. It was not permissible to argue that Macy’s arrests mirrored the shoplifting population.

Even colorblind technology is racist. Speeding and red-light cameras disproportionately identify black drivers as traffic scofflaws. The solution to such disparate impact is the same as we saw with the medical licensing exam: throw out the cameras.

The result of this de-prosecution and de-policing has been widespread urban anarchy and, in 2020, the largest one-year spike in homicide in this nation’s history. Thousands more black lives have been lost to drive-by shootings. Dozens of black children have been fatally gunned down in their beds, in their front yards, and in their parents’ cars. No one says their names because their assailants were not police officers or white supremacists. They were other blacks.

UNCOMFORTABLE FACTS

We need to face up to the truth: the reason for racial underrepresentation across a range of meritocratic fields is the academic skills gap. The reason for racial overrepresentation in the criminal justice system is the crime gap.

And let me issue a trigger warning here: I am going to raise uncomfortable facts that many well-intentioned Americans would rather not hear. Keeping such facts off stage may ordinarily be appropriate as a matter of civil etiquette. But it is too late for such forbearance now. If we cannot acknowledge the skills gap and the behavior gap, we are going to continue destroying our civilizational legacy.

Let me also make the obvious point that I am talking about group averages. Thousands of individuals within underperforming groups outperform not only their own group average but great numbers of people within other groups as well.

Here are the relevant facts. In 2019, 66 percent of all black 12th graders did not possess even partial mastery of basic 12th grade math skills, defined as being able to do arithmetic and to read a graph. Only seven percent of black 12th graders were proficient in 12th grade math, defined as being able to calculate using ratios. The number of black 12th graders who were advanced in math was too small to show up statistically in a national sample. The picture was not much better in reading. Fifty percent of black 12th graders did not possess even partial mastery of basic reading, and only four percent were advanced.

According to the ACT, a standardized college admissions test, only three percent of black high school seniors were college ready in 2023. The disparities in other such tests—the SAT, the LSAT, the GRE, and the GMAT—are just as wide. Remember these data when politicians and others vilify Americans as racist on the ground that this or that institution is not proportionally diverse.

We can argue about why these disparities exist and how to close them—something that policymakers and philanthropists have been trying to do for decades. But in light of these skills gaps, it is irrational to expect 13 percent black representation on a medical school faculty or among a law firm’s partners under meritocratic standards. At present you can have proportional diversity or you can have meritocracy. You cannot have both.

As for the criminal justice system, the bodies speak for themselves. President Biden is fond of intoning that black parents are right to fear that their children will be killed by a police officer or by a white gunslinger every time those children step outside. The mayor of Kansas City proclaimed last year that “existing while black” is another high-risk activity that blacks must engage in. The mayor was partially right: existing while black is far more dangerous than existing while white—but the reason is black crime, not white vigilantes.

In the post-George Floyd era, black juveniles are shot at 100 times the rate of white juveniles. Blacks between the ages of ten and 24 are killed in drive by shootings at nearly 25 times the rate of whites in that same age cohort. Dozens of blacks are murdered every day, more than all white and Hispanic homicide victims combined, even though blacks are just 13 percent of the population. The country turns its eyes away. Who is killing these black victims? Not the police, not whites, but other blacks.

As for interracial violence, blacks are a greater threat to whites than whites are to blacks. Blacks commit 85 percent of all non-lethal interracial violence between blacks and whites. A black person is 35 times more likely to commit an act of non-lethal violence against a white person than vice versa. Yet the national narrative insists on the opposite idea—and too many dutifully play along.

These crime disparities mean that the police cannot restore law and order in neighborhoods where innocent people are most being victimized without having a disparate impact on black criminals. So the political establishment has decided not to restore law and order at all.

CIVILIZATION AT STAKE

It is urgent that we fight back against disparate impact thinking. As long as racism remains the only allowable explanation for racial disparities, the Left wins, and our civilization will continue to crumble.

Even the arts are coming down. Classical music, visual art, theater—all are dismissed as a function of white oppression. The Metropolitan Museum of Art mounted an astonishing show last year called the Fictions of Emancipation. The show’s premise was that if a white artist creates a work intended to show the cruelties of slavery, that artist (in this case, the great 19th century French sculptor Jean-Baptiste Carpeaux) is in fact arguing that the natural condition of blacks is slavery. Prosecuting this nonsensical argument required the Met to ignore or distort almost every feature of the Western art tradition—including the representation of the nude human body, artists’ use of models, and the sale of art.

Only Western art is subjected to this kind of hostile interpretation. Chinese, African, and Indian cultural traditions are still treated with curatorial respect, their works analyzed in accordance with their creators’ intent. As soon as a critic turns his eye or ear on Western art, however, all he can see or hear is imperialism and white privilege. It is a perverse obsession. We are teaching young people to dismiss the greatest creations of humanity. We are stripping them of the capacity to escape their narrow identities and to lose themselves in beauty, sublimity, and wit. No wonder so many Americans are drowning in meaninglessness and despair.

We must stop apologizing for Western Civilization. To be sure, slavery and segregation were grotesque violations of America’s founding ideals. For much of our history black Americans suffered injustice and gratuitous cruelty. Today, however, every mainstream institution is twisting itself into knots to hire and promote as many underrepresented minorities as possible. Yet those same institutions grovelingly accuse themselves of racism.

The West has liberated the world from universal squalor and disease, thanks to the scientific method and the Western passion for discovery and knowledge. It has given the world plumbing, hot showers in frigid winters, flight, clean water, steel, antibiotics, and just about every structure and every device that we take for granted in our miraculously privileged existence—and I use the word “privilege” here to refer to anyone whose life has been transformed by Western ingenuity—i.e., virtually every human being on the planet.

It was in the West that the ideas of constitutional government and civil rights were born. Yes, to our shame, we had slavery. What civilization did not? But only the Anglosphere expended lives and capital to end the nearly universal practice. Britain had to occupy Lagos in 1861 to get its ruler to give up the slave trade. The British Navy used 13 percent of its manpower to blockade slave ships leaving the western coast of Africa in the 19th century, as Nigel Biggar has documented. Every ideal that the Left uses today to bash the West—such as equality or tolerance—originated in the West.

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The ongoing attack on colorblind excellence in the U.S. is putting our scientific edge at risk. China, which cares nothing for identity politics, is throwing everything it has at its most talented students. China ranks number one in international tests of K-12 math, science, and reading skills; the U.S. ranks twenty-fifth.

China is racing ahead in nano physics, artificial intelligence, and other critical defense technologies. Chinese teams dominate the International Olympiad in Informatics. Meanwhile the American Mathematical Association declares math to be racist and President Biden puts a soil geologist with no background in physics at the top of the Department of Energy’s science programs. This new science director may know nothing about nuclear weapons and nuclear physics, but she checks off several identity politics boxes and publishes on such topics as “A Critical Feminist Approach to Transforming Workplace Climate.”

What do we do in response to such civilizational immolation? We proclaim that standards are not racist and that excellence is not racist. We assert that categories like race, gender, and sexual preference are never qualifications for a job. I know for a fact that being female is not an accomplishment. I am equally sure that being gay or being black are also not accomplishments.

Should conservative political candidates campaign against disparate impact thinking and in favor of standards of merit? Of course they should! They will be accused of waging a culture war. But it is the progressive elites, not their conservative opponents, who are engaging in cultural revolution!

Most conservatives today are not even playing defense. How about legislation to ban racial preferences in medical training and practice? How about eliminating the disparate impact standard in statutes and regulations? Conservatives should by all means promote the virtues of free markets and limited government, but the diversity regime is the nemesis of both.

Lowering standards helps no one since high expectations are the key to achievement. In defense of excellence we must speak the truth, never apologize, and never back down.