The race for Ulster County district attorney, which culminates with the November 5 general election, is a contest between two opposing schools of criminal justice thought. In one corner stands Michael Kavanagh, a tough-on-crime Republican who served as chief assistant to (and has been endorsed by) outgoing DA Holley Carnwright. In the opposing corner: Democrat David Clegg, a Kingston attorney who is running on a platform of restorative justice.
The son of a former Ulster County DA and state Supreme Court judge, Kavanagh has 20 years’ experience as a prosecutor. His announcement highlighted his successful prosecution of “murderers, rapists, child abusers, burglars, armed robbers, and individuals who seek to sell illicit drugs to our children,” and sang the praises of the “good men and women in law enforcement.” But he also noted that his vision is “broader than prosecuting criminals,” and championed continued prevention initiatives to help curb domestic violence and opioid addiction, among other social woes.
Clegg, whose career includes litigating on behalf of consumers against large corporations and defending the civil rights of Lakota Sioux members, was first to enter the race, announcing his candidacy in February from the steps of the Ulster County Courthouse in Kingston, alongside fellow local Democratic leaders Mayor Steve Noble, County Executive Mike Hein, Assemblyman Kevin Cahill, and former Ulster County Human Rights Commissioner Evelyn Clarke. (Clegg was last seen losing out to Antonio Delgado in the bruising Democatic congressional primary.)
Clegg describes his vision of a criminal justice system built around the principles of restorative justice, an approach that emphasizes repairing the harm caused by criminal behavior (as opposed to meting out punishment and prison time) and prioritizes diversion programs over jail time, decriminalization of low-level offenses, and holding law enforcement accountable. A few examples of how that approach might play out, per Hudson Valley One:
Discussing his vision for progressive criminal justice reform, Clegg said the district attorney’s office could play a powerful role by, for example, directing addicts into treatment instead of jail. Clegg also called for stronger rehabilitation and reentry programs for convicts to prevent recidivism and cut costs associated with long-term incarceration.
“We have to stop recidivism,” said Clegg. “But we don’t do it by throwing away the key on people. We do it by rehabilitation.”
The two candidates are in diametric opposition: The experience and track record Kavanagh boasts are, to Clegg, the exact problem. “It’s time to bring our criminal justice system here in Ulster County into the 21st century,” Clegg said at his campaign launch. “It is time to stop the scourge of mass incarceration in this country. It’s time we devote and spend more resources to saving at-risk children than we do incarcerating them.”
The endorsements garnered by each candidate reflect the polarity of their respective platforms. While both candidates claim support from labor unions, the majority of Kavanagh’s endorsements come from law enforcement agencies, while progressive and citizen action groups like Move Forward NY, Indivisible Ulster, and Citizen Action of NY have backed Clegg.
What Is Restorative Justice?
We aren’t making an endorsement here at The River, but since Clegg’s election would initiate a sweeping change in the way criminal justice is prosecuted in Ulster County, it’s worth looking at what, exactly, restorative justice is, and how similar DAs have fared elsewhere in the country.
We can start by looking at what Clegg has done so far in his four-decade career. The 66-year-old has consistently fought on the side of victims; he began his career as a clerk with the NAACP Legal Defense Fund, and later represented Native American people in several cases dealing with civil rights, including the landmark Hawkman vs. Parratt decision, which established standards for the effective assistance of counsel in criminal cases involving Native Americans. Clegg won every jury trial he tried during his nine-year stint as an Ulster County Assistant Public Defender, and as the current chairperson of the Ulster County Human Rights Commission, he has defended the rights of immigrants and the civil liberties of the LGBTQ community.
According to his website, Clegg’s priorities as DA include shifting prosecutorial strategy away from incarceration and toward rehabilitation for nonviolent offenders; combating recidivism by reallocating funds toward youth programs, drug counseling, and community policing; making sure victims are supported and reintegrated into society, rather than being “re-victimized” by the criminal justice process; and ensuring transparency and accountability from the DA’s office.
These are all bread-and-butter tenets of restorative justice, and across the country, a small but growing vanguard of prosecutors and attorneys have been using them to blaze a new path for criminal justice. There’s Wesley Bell, the former Ferguson, Missouri, activist who last year won the race for St. Louis County prosecutor and reduced the county’s jail population by 12 percent in his first 100 days; Larry Krasner, who in his first month as Philadelphia DA ended cash bail, filed a lawsuit against pharmaceutical companies for their role in the city’s opioid epidemic, announced that he would no longer pursue criminal charges for low-level marijuana offenses, and announced a sentence review unit to look at past cases; and Rachael Rollins, the DA for Suffolk County, Massachusetts (which includes Boston), who on her first day in office issued a “do not prosecute” list for minor crimes like trespassing, shoplifting, and drug possession.
“These candidates have bucked a decades-long ‘tough-on-crime’ trend adopted by both major parties, in favor of fundamental reforms to criminal justice,” notes the Guardian, which identified the movement as a progressive counter to the right-wing takeover of federal courts:
“Our Supreme Court is gone as an agent of good in seeking justice,” said Krasner, who argues that winning more and more prosecutor’s offices is critical to long-lasting reform.
The progressive prosecutor movement is still in its nascent phase, Krasner and others interviewed agreed. But [David Alan] Sklansky, the Stanford law professor, still counts this era as historic.
“I can’t think of another moment where there was as broad a movement nationwide to moderate criminal justice policies,” he said. “The fact that dystopian rhetoric from its opponents hasn’t stalled this movement is some sign that it’s durable.”
Paradox and Blowback
But the movement is not without critics, especially from a group that has long allied with district attorneys: the police.
A primary source of contention between left-leaning Democatic DAs and traditionally more conservative law enforcement departments is over tactics. Achieving the widespread reforms sought by the restorative justice movement necessitates changing the culture of both the DA’s office and the police force, whom these new DA’s have vowed to hold accountable for any abuses of power. That’s a painful makeover, and it’s not happening easily.
Krasner, for example, is held up as a model DA by many social justice advocates, but after six Philadelphia police officers were wounded in a shooting in August, he was lambasted by William McSwain, the US attorney for the Eastern District of Pennsylvania, in a statement tying Krasner to the shooting. “There is a new culture of disrespect for law enforcement in this city that is promoted and championed by District Attorney Larry Krasner—and I am fed up with it,” McSwain wrote.
Also in August, US Attorney General told a Fraternal Order of Police conference in New Orleans that “the emergence in some of our large cities of district attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook and refusing to enforce the law,” is “demoralizing to law enforcement and dangerous to public safety,” according to NBC News.
The movement has also come in for some criticism from the left, writes Ephrat Livni for Quartz:
Progressive prosecutors are merely delaying a pressing conversation about real radical reform and legitimizing a rotten system, according to critics who say progressive prosecution is an oxymoron. Working from within a fundamentally racist and classist institution on incremental reform is dangerous because, critics say, it legitimizes the status quo.
A recent paper from the Harvard Law Review, titled “The Paradox of ‘Progressive Prosecution’,” described the problem with a colorful metaphor, likening the current criminal justice system to “a piece of moldy bread….Advocating for more progressive prosecutors is akin to cutting around the spores. That might be better than going hungry, but it’s still unsatisfying, and risky.”
To be sure, DAs like Krasner and others have seen some of their attempts at reform stall, or fall flat altogether. But it’s equally clear that the priorities of American law enforcement agencies—or at least how those priorities are enforced—are not working. The US has the highest incarceration rate in the world, with some 2.2 million people behind bars at the end of 2016, according to a 2018 report from the Bureau of Justice Statistics. If the US prison population were its own city, it would be the fifth-largest in the country. Calls for more accountability and transparency from the police have been sounded locally, as well; last week, Rise Up Kingston issued a report finding that between 2012 and 2017, black residents made up 52 percent of tasering victims by the Kingston Police Department, despite comprising only 14.5 percent of the city’s population during that time period.
On the necessity of change, perhaps Clegg and Kavanagh can agree: while the latter touts his proven prosecutorial experience, he also notes that he’s a “strong advocate of alternatives to incarceration.”
Last week, the two candidates held a debate at the offices of the Kingston Daily Freeman; you can watch a video replay on the paper’s website. The election date for all the races in Ulster County is November 5, but early voting begins on October 26. Find your polling place and more info here.