Local Prosecutor Elections Foreshadow Continued Movement Away From Death Penalty

Reform pros­e­cu­tors made fur­ther inroads in the American legal sys­tem in the November 2020 gen­er­al elec­tion, unseat­ing pros­e­cu­tors in sev­er­al of the most pro­lif­ic death-sen­tenc­ing coun­ties in the United States and cap­tur­ing open seats in major Texas and Florida coun­ties, but falling short in sev­er­al oth­er high profile races. 

Election results updat­ed on Thursday, November 5, showed that can­di­dates pledg­ing sys­temic reforms, includ­ing reduced use or aban­don­ment of the death penal­ty, had won pros­e­cu­tor races in Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola coun­ties (Orlando, FL), and Franklin County (Columbus, OH). Incumbents appear to have fend­ed off chal­lenges in Maricopa County (Phoenix, AZ) and Hamilton County (Cincinnati, OH). The elec­tion pre­saged a con­tin­ued reduc­tion in cap­i­tal pros­e­cu­tions in the nation’s his­tor­i­cal­ly most pro­lif­ic death-sen­tenc­ing coun­ties. Collectively, the four pros­e­cu­tion offices in which new pro­gres­sive pros­e­cu­tors pre­vailed had 263 pris­on­ers on their death rows at the start of 2020, account­ing for 10% of the country’s total death-row population. 

Los Angeles County, California

The most high-pro­file race was in Los Angeles County, where for­mer San Francisco District Attorney and for­mer Mesa, Arizona police chief George Gascón (pic­tured above), was lead­ing incum­bent District Attorney Jackie Lacey. As of Thursday morn­ing, November 5, Gascón had received 53.8% of the more than 3 mil­lion votes cast and led by a 222,000-vote mar­gin. With 228 pris­on­ers as of January 2020, Los Angeles’ death row is the largest of any U.S. coun­ty. It has imposed the death penal­ty 336 times since California rein­stat­ed the death penal­ty in December 1973.

Capital pun­ish­ment became a sig­nif­i­cant issue in the race after the ACLU released a 2019 study that assert­ed Lacey’s use of cap­i­tal pun­ish­ment had ​“discriminate[d] on the basis of race and against the poor.” The ACLU report­ed that all 22 peo­ple sen­tenced to death in Los Angeles dur­ing Lacey’s tenure had been peo­ple of col­or and their cas­es had dis­pro­por­tion­ate­ly involved killings of white vic­tims. The report not­ed that Los Angeles was ​“one of only three coun­ties nation­wide to have more than 10 death sen­tences” in the five-year peri­od from 2014 – 2018 and imposed ​“more death sen­tences per capi­ta than any large coun­ty in Texas, North Carolina, Pennsylvania, Utah, Washington, or Georgia.” Lacey con­tin­ued pur­su­ing the death penal­ty against defen­dants after California Governor Gavin Newsom declared a mora­to­ri­um on exe­cu­tions in March 2019.

Gascón chal­lenged Lacey, por­tray­ing him­self as a reform can­di­date look­ing to reduce mass incar­cer­a­tion. He also said he would not pur­sue the death penal­ty and would work to undo death sen­tences already imposed in the coun­ty. ​“I believe that the death penal­ty is immoral. The death penal­ty does not work; it does­n’t take care of crime,” he said on a Zoom meet­ing host­ed by a Pasadena church in September 2020. ​“We know that the death penal­ty is irre­versible. If there’s a mis­take, if there’s a wrong­ful con­vic­tion, if some­one was exe­cut­ed, we can­not bring them back to life.”

Maricopa County (Phoenix), Arizona

In the nation’s third-largest death row, returns tab­u­lat­ed through­out the day on Wednesday shift­ed the Maricopa County Attorney race in favor of incum­bent County Attorney Allister Adel. Reform can­di­date Julie Gunnigle had been lead­ing by just under 22,000 votes out of the 1.5 mil­lion bal­lots tal­lied through Wednesday morn­ing. But with all precincts report­ing Thursday morn­ing, Adel, a Republican, was ahead by 4,186 votes, 821,845 (50.1%) to Gunnigle’s 817,659 (49.9%).

The lead­er­ship of the coun­ty attor­ney’s office was thrown into greater tur­moil on elec­tion night when Adel was hos­pi­tal­ized and under­went emer­gency surgery for bleed­ing in her brain. On Thursday, she was report­ed in seri­ous but stable condition. 

Both can­di­dates tried to embrace the man­tle of reform, with Adel bal­anc­ing sup­port from police with attempts to dis­tance her­self from her pre­de­ces­sors as coun­ty attor­ney. Gunnigle described her­self as advo­cat­ing ​“com­mon sense reforms” to coun­ty pros­e­cu­to­r­i­al prac­tices that her oppo­nent tried to paint as ​“rad­i­cal.” Maricopa County has sen­tenced 206 defen­dants to death since the 1970s, exe­cut­ing 11. It had 85 pris­on­ers on its death row at the start of 2020. The coun­ty con­sis­tent­ly ranks among the high­est in the coun­try for rates of mass incarceration.

Travis County (Austin), Texas

Former pub­lic defend­er José Garza won the race for Travis County dis­trict attor­ney with 69.8% of the vote, eas­i­ly defeat­ing Republican Martin Harry in the heav­i­ly Democratic coun­ty. The vic­to­ry for­mal­ized Garza’s ascen­sion to the dis­trict attorney’s posi­tion after he defeat­ed incum­bent District Attorney Margaret Moore in July in a run-off elec­tion for the Democratic nomination. 

Garza force­ful­ly argued for revamp­ing the county’s pros­e­cu­to­r­i­al prac­tices, say­ing “[w]e use our crim­i­nal jus­tice sys­tem like a rug that we sweep our prob­lems under­neath so we don’t have to look at them.” ​“We have an oblig­a­tion and a respon­si­bil­i­ty to show peo­ple a dif­fer­ent way of gov­ern­ing in the state of Texas,” he said. Harry crit­i­cized Garza for being too extreme. 

Garza’s cam­paign web­site pledged his admin­is­tra­tion would nev­er pur­sue the death penal­ty. ​“The Death Penalty is moral­ly and eth­i­cal­ly wrong, does not serve as a deter­rent, has proven to be applied arbi­trar­i­ly at best, and comes at tremen­dous finan­cial costs,” his web­site says. Harry’s web­site did not address the death penalty.

Travis County has sen­tenced 22 peo­ple to death since Texas rein­sti­tut­ed the death penal­ty in the 1970s, exe­cut­ing eight pris­on­ers — more than have been exe­cut­ed by 98% of U.S. counties

Frankin County, Ohio

In a coun­ty that includes Columbus and is among the 2% of coun­ties that account for more than half of the U.S. death-row pop­u­la­tion, Democrat Gary Tyack, a retired appeals court judge and for­mer defense lawyer who had han­dled cap­i­tal cas­es, oust­ed incum­bent County Prosecutor Ron O’Brien. O’Brien was known for per­son­al­ly par­tic­i­pat­ing in pros­e­cu­tion of death-penal­ty and oth­er high-pro­file cas­es dur­ing his 24 years as county prosecutor. 

Tyack’s web­site said that the death penal­ty should be reserved ​“for only the most extreme sit­u­a­tions” and that he believes ​“cas­es will be resolved with more cer­tain­ty, and in a more expe­di­tious man­ner, with­out the death penal­ty being a first choice.” In cam­paign appear­ances, he sug­gest­ed that O’Brien had wast­ed tax­pay­ers dol­lars with 12 death-penal­ty tri­als that had result­ed in a sin­gle death sen­tence and that Franklin County jurors no longer sup­port­ed capital punishment. 

Tyack sup­port­ed a Columbus bal­lot issue to cre­ate a cit­i­zen over­sight pan­el on police, while O’Brien avoid­ed tak­ing any posi­tion on the panel. 

Franklin County has imposed the death penal­ty 32 times since the 1970s, with 12 pris­on­ers on death row at the start of 2020. Ohio has exe­cut­ed two of the county’s prisoners.

Orange-Osceola County, Florida

Former defense lawyer Monique Worrell crushed inde­pen­dent Jose Torroella in the race to replace Orange-Osceola County, Florida State Attorney Aramis Ayala. With 98% of the vote count­ed, Worrell had received 66% of the vote. Worrell ran on a pol­i­cy of crim­i­nal law reform, express­ing per­son­al oppo­si­tion to the death penal­ty but leav­ing open the pos­si­bil­i­ty that she would apply it in extreme cases. 

Torroella billed him­self as a ​“law and order” can­di­date who said he was ​“tired of polit­i­cal­ly cor­rect State Attorneys who do not file charges against crim­i­nals.” He told vot­ers, ​“Do not believe the mantra of ​‘Criminal Justice Reform.’” 

Ayala chose not to seek a sec­ond term, cit­ing con­flicts with the Florida Supreme Court’s rul­ing that coun­ty pros­e­cu­tors did not have com­plete auton­o­my over deci­sions not to seek the death penal­ty. Early in her tenure, Ayala announced that her office would nev­er seek the death penal­ty, say­ing it ​“is not in the best inter­ests of this com­mu­ni­ty or in the best inter­ests of jus­tice.” Then-Governor Rick Scott respond­ed by remov­ing Ayala’s office from 29 mur­der cas­es and reas­sign­ing them to Lake County State Attorney Brad King, an avid death-penal­ty sup­port­er. The court lat­er upheld Scott’s action.

None of the cas­es in which Ayala declined to press cap­i­tal charges has result­ed in a new death sentence. 

Observers con­sid­ered Worrell’s win an elec­toral vin­di­ca­tion of Ayala’s poli­cies. Worrell, who was endorsed by Ayala and Senator Bernie Sanders, said on her web­site that she would use ​“incar­cer­a­tion as a last resort.” She said that she is ​“per­son­al­ly opposed to the death penal­ty,” yet that “[t]he death penal­ty is the law in the State of Florida and as a pros­e­cu­tor, I don’t have the right to change the law or over­ride the law.” ​“I do have a respon­si­bil­i­ty to ensure that if the death penal­ty is sought, it is sought with the grav­i­ty that it deserves,” she said.

Other Elections

In a close­ly watched elec­tion in Hamilton County (Cincinnati), Ohio that was con­sid­ered a ref­er­en­dum on reform, vet­er­an pros­e­cu­tor Joe Deters beat back a chal­lenge to his re-elec­tion from for­mer pros­e­cu­tor and civ­il rights attor­ney, Fanon Rucker. With all precincts report­ing, Deters received 52.7% of the vote. In New Orleans, no one in a four-can­di­date race to replace retir­ing Orleans Parish dis­trict attor­ney Leon Cannizzaro received a major­i­ty of the vote, forc­ing a run-off elec­tion between the top two vote get­ters. Keva Landrum, a pros­e­cu­tor who pre­vi­ous­ly served in the office under for­mer District Attorney Harry Connick Sr., will be opposed by Jason Williams, a crim­i­nal defense attor­ney run­ning as a reform pros­e­cu­tor, in the December 5, 2020 runoff.

[Updated November 5 to reflect new election developments.]