Midterm Elections: Moratorium Supporters, Reform Prosecutors Post Gains Despite Massive Campaign Efforts to Tie Reformers to Surge in Violent Crime

In a year that fea­tured mas­sive cam­paign adver­tis­ing attempt­ing to por­tray legal reform­ers as respon­si­ble for increas­es in vio­lent crime, can­di­dates com­mit­ted to crim­i­nal legal reform or who promised to con­tin­ue statewide mora­to­ria on exe­cu­tions post­ed key elec­tion wins in the 2022 midterm elec­tions. Defying a pre-elec­tion nar­ra­tive fore­cast­ing a back­lash against pro­gres­sive pros­e­cu­tors and con­ven­tion­al wis­dom that fear of crime dri­ves polit­i­cal out­comes, reform pros­e­cu­tors were re-elect­ed to office and gained new footholds in coun­ties across the country. 

Governors were up for elec­tion in the three states that had offi­cial­ly declared mora­to­ria on exe­cu­tions: California, Oregon, and Pennsylvania. In each of these states, guber­na­to­r­i­al elec­tion results ensure that the mora­to­ria will con­tin­ue. Governor Gavin Newsom (pic­tured, left), who announced a mora­to­ri­um on exe­cu­tions in 2019 and deci­sive­ly defeat­ed a recall effort in 2021, eas­i­ly won re-elec­tion in California. Governor-elect Tina Kotek (pic­tured, cen­ter), the for­mer Speaker of the Oregon House of Representatives, has promised to extend the state’s exist­ing mora­to­ri­um on exe­cu­tions. Pennsylvania’s next gov­er­nor, Attorney General Josh Shapiro (pic­tured, right) has also pledged not to sign exe­cu­tion war­rants while in office. Ohio, a state with­out a for­mal mora­to­ri­um, re-elect­ed Governor Mike DeWine, who has issued a series of reprieves to death row pris­on­ers based on obsta­cles to the state’s pro­vi­sion of execution drugs.

Incumbent dis­trict attor­neys John Creuzot (Dallas) and Joe Gonzales (San Antonio) were re-elect­ed in Texas and Marion County Prosecuting Attorney Ryan Mears (Indianapolis) was re-elect­ed in Indiana, despite oppo­nents’ con­cert­ed efforts to attack their reform ini­tia­tives. Elsewhere in Texas, Fort Bend​’s reform D.A. Brian Middleton was re-elect­ed with­out oppo­si­tion and reformer Kelly Higgins won the District Attorney elec­tion in Hays County. Incumbent pros­e­cu­tors who have signed a pledge to work to end the death penal­ty were re-elect­ed in Durham and Buncombe coun­ties in North Carolina (Democrats Satana Deberry and Todd Williams); St Louis County, Missouri (Democrat, Wesley Bell), and Salt Lake County, Utah (Republican Sam Gill).

Reform can­di­dates also took the pros­e­cu­to­r­i­al reins in two heavy-use death penal­ty coun­ties marred by his­to­ries of pros­e­cu­to­r­i­al mis­con­duct. In Oklahoma County, vot­ers elect­ed Vicki Behenna, the for­mer exec­u­tive direc­tor of the Oklahoma Innocence Project, to serve as dis­trict attor­ney. Earlier in the year, Shelby County (Memphis), Tennessee vot­ers oust­ed long-time pros­e­cu­tor Amy Weirich in favor of University of Memphis law pro­fes­sor Steve Mulroy, a for­mer coun­ty com­mis­sion­er and fed­er­al civ­il rights pros­e­cu­tor. In a race that was wide­ly per­ceived as a test of the dura­bil­i­ty of pros­e­cu­to­r­i­al reform after San Francisco District Attorney Chesa Boudin was recalled in June, civ­il rights attor­ney Pamela Price won the dis­trict attorney’s race in neigh­bor­ing Alameda County, California.

Behenna will take over as dis­trict attor­ney in a coun­ty that has imposed more death sen­tences in the past fifty years than any oth­er coun­ty its size (pop­u­la­tion between 750,000 – 1,000,000), imposed more death sen­tences in the past decade than any oth­er coun­ty with a pop­u­la­tion under 2.25 mil­lion peo­ple, and car­ried out more than 2.5 times the num­ber of exe­cu­tions of any oth­er com­pa­ra­bly sized coun­ty. The Oklahoma County District Attorney’s office has a long his­to­ry of pros­e­cu­to­r­i­al mis­con­duct, with at least eleven death sen­tences reversed or death-row pris­on­ers exon­er­at­ed because of mis­con­duct. The coun­ty has had more wrong­ful­ly con­vict­ed death-row pris­on­ers exon­er­at­ed than all but three oth­er coun­ties in the U.S., with the inno­cence issues in the cas­es of Julius Jones and Richard Glossip still unre­solved. Twelve of the 25 peo­ple sched­uled to be exe­cut­ed in Oklahoma’s 2002 – 2004 exe­cu­tion spree were pros­e­cut­ed in Oklahoma County.

Mulroy took office after win­ning elec­tion on August 4, 2022. Weirich, whose office was plagued with crit­i­cisms of bias and mis­con­duct, sought re-elec­tion based on what her cam­paign tout­ed as her ​“tough on crime” poli­cies. She faced strong oppo­si­tion from com­mu­ni­ty activists for her efforts to pre­vent Shelby County death-row pris­on­er Pervis Payne from obtain­ing DNA test­ing for his inno­cence claim and for oppos­ing efforts to over­turn Payne’s uncon­sti­tu­tion­al death sen­tence because of his intellectual disability. 

Mulroy and Behenna have not pledged to nev­er seek the death penal­ty but are replac­ing aggres­sive­ly pro-cap­i­tal pun­ish­ment pros­e­cu­tors in coun­ties that have been dis­pro­por­tion­ate dri­vers of death sentencing. 

Price, a for­mer defense attor­ney, will be the first Black woman to serve as Alameda County’s dis­trict attor­ney. She cam­paigned on promis­es to right past wrongs, includ­ing seek­ing resen­tenc­ing for all 41 peo­ple cur­rent­ly on death row from Alameda County and those sen­tenced to life without parole. 

Public Perception vs. the Truth About Violent Crime

The 2022 midterm elec­tions took place against a back­drop of a record increase in the pub­lic per­cep­tion that local crime was ris­ing, stoked by mil­lions of dol­lars of neg­a­tive adver­tis­ing attempt­ing to false­ly link reform pros­e­cu­tors to increas­es in violent crime. 

In fact, despite sig­nif­i­cant pan­dem­ic increas­es in mur­ders, the Pew Research Center not­ed that “[a]nnual gov­ern­ment sur­veys from the Bureau of Justice Statistics show no recent increase in the U.S. vio­lent crime rate.” Even with the spike in mur­ders, Pew report­ed, vio­lent crime ​“remained well below past highs, and mur­der remains the least com­mon type of vio­lent crime overall.”

At the same time, a mul­ti-uni­ver­si­ty col­lab­o­ra­tive of researchers found ​“no evi­dence to sup­port the claim that pro­gres­sive pros­e­cu­tors were respon­si­ble for the increase in homi­cide dur­ing the pan­dem­ic or before it.” The October 20, 2022 report released by the University of Toronto’s Munk School of Global Affairs and Public Policy found that a small­er per­cent­age of cities served by ​“pro­gres­sive” pros­e­cu­tors record­ed an increase in homi­cides com­pared to cities served by ​“mid­dle” or ​“tra­di­tion­al” pros­e­cu­tors, and that ​“the pro­por­tion­al increase in homi­cide was low­er in cities served by pros­e­cu­tors deemed ​‘pro­gres­sive.’”

The cam­paign adver­tis­ing cer­tain­ly fueled vot­er per­cep­tions about crime. Gallup​’s 2022 Crime Survey, admin­is­tered between October 3 – 20, 2022, report­ed the largest one-year increase in fifty years in the num­ber of U.S. adults who report­ed that crime is up in the area in which they live. But, Gallup report­ed, ​“par­ti­san­ship plays a sig­nif­i­cant role in shap­ing Americans’ assess­ments of crime.” The spike in per­ceived crime was fueled pri­mar­i­ly by a surge in fear among those iden­ti­fy­ing as Republicans.

Fifty-six per­cent of respon­dents told Gallup they believed that local crime had risen, up 11 per­cent­age points from the 45% who said so in 2021. But Republicans’ per­cep­tion that local crime was ris­ing increased from 38% in the final year of the Trump pres­i­den­cy to 67% in 2021 to 73% at the approach of the Biden midterm elec­tions. Fifty-one per­cent of Independents believed local crime was ris­ing, up four per­cent­age points from 2021, along with 42% of Democrats, who account­ed for a two per­cent­age-point increase. 95% per­cent of Republicans said they believed nation­al crime was up, the high­est per­cent­age ever report­ed for any par­ty in the his­to­ry of Gallup’s polling.

The data — sup­port­ed by the elec­tion out­comes — sug­gest that the crime ads had their great­est effect on a vot­ing base that was already pre­dis­posed to vote against reform can­di­dates, and so had no mate­r­i­al impact on most of the elec­tions. The com­mu­ni­ty most direct­ly affect­ed by crime — African Americans — were also the group most like­ly to say that crime was an impor­tant issue to them dur­ing the midterm elec­tions (81%). But the often overt­ly racist crime ads did not per­suade Black vot­ers to sup­port can­di­dates advo­cat­ing more puni­tive approach­es to crime. 

Both the ads them­selves and the polit­i­cal rhetoric had anoth­er notable char­ac­ter: the death penal­ty was not part of the polit­i­cal fear-mon­ger­ing and the gen­er­al­ized belief that crime was ris­ing did not trans­late into greater sup­port for the death penal­ty. At the same time that the belief that crime was ris­ing increased, Gallup found that sup­port for cap­i­tal pun­ish­ment remained just one per­cent­age point above the 50-year low of 54% record­ed in 2021. And in the same two-year peri­od in which Gallup found that Republicans’ per­cep­tion that local crime was ris­ing sky­rock­et­ed by 35 per­cent­age points, Republican sup­port for cap­i­tal pun­ish­ment fell from 82% to 77%. 

In a November 23, 2022 analy­sis for the Vera Institute of Justice, senior writer Sam McCann not­ed that “[b]etween Labor Day and the November 8^th midterm elec­tions, vot­ers were bom­bard­ed with at least $85 mil­lion dol­lars’ worth of cam­paign adver­tise­ments about crime. … But,” he said, ​“those big bets on scare tac­tics failed to pay off on Election Day.” In state and fed­er­al elec­tions, ​“vot­ers gen­er­al­ly opt­ed for can­di­dates pledg­ing to pre­vent crime through invest­ment in com­mu­ni­ty ser­vices rather than those run­ning on plat­forms push­ing for failed puni­tive approach­es,” he wrote. The same was true in the many local pros­e­cu­tor elec­tions in which reform pros­e­cu­tor post­ed impor­tant gains. ​“These wins,” McCann sug­gest­ed, ​“rein­force the fact that most vot­ers want lead­ers with an affir­ma­tive vision for build­ing safe­ty, not those who insist that their neigh­bors are peo­ple to be feared.”

Philadelphia District Attorney Larry Krasner, a lead­ing fig­ure in the reform move­ment, was more direct. In a November 10, 2022 inter­view, he told The Intercept, ​“Rather than the Democratic Party answer­ing direct­ly this Willie Horton-style attack on big cities that are diverse and attack on big city pros­e­cu­tors who are reform pros­e­cu­tors,” he said, “[many] did that dumb thing that, sad­ly, they some­times do, which is go Republican-lite, get off in the cor­ner, try not to talk about it.” Instead of run­ning from the issue, “[i]t is pos­si­ble that crim­i­nal jus­tice reform, like any oth­er issue that fun­da­men­tal­ly touch­es large num­bers of reluc­tant vot­ers, … could dras­ti­cal­ly increase vot­er turnout,” he said.

Other elec­tion results

Running from the issue may have had an impact in one of the two races in key death-penal­ty states in which gov­er­nor­ships changed hands. In Nevada, Democratic Governor Steve Sisolak, who helped scut­tle a bill to abol­ish the state’s death penal­ty fear­ing it might hurt his re-elec­tion chances, was nar­row­ly defeat­ed by Republican Joe Lombardo, the Sheriff of Clark County, the state’s most active death-penal­ty juris­dic­tion. That result like­ly fore­clos­es death-penal­ty repeal in the state for the foreseeable future. 

In Arizona, Democrat Katie Hobbs won the race to replace term-lim­it­ed Republican Doug Ducey, defeat­ing Republican elec­tion denier, Kari Lake. Democrat Kris Mayes, who sup­ports the death penal­ty but was crit­i­cal of the state’s exe­cu­tion botch­es, expen­di­ture of funds to pur­chase cyanide com­pounds for pos­si­ble gas cham­ber exe­cu­tions, and aggres­sive pur­suit of death war­rants, leads Republican elec­tion denier Abraham Hamadeh — pend­ing a recount — in the race to replace Attorney General Mark Brnovich. The result of that elec­tion could affect future exe­cu­tions in the state, includ­ing whether a set­tle­ment will be reached in the case of Barry Jones, whom the Supreme Court ruled was not enti­tled to access to the fed­er­al courts to present evi­dence that he could not have com­mit­ted the mur­der for which he was sen­tenced to death.

Legal reform efforts suf­fered sev­er­al notable set­backs in 2022. In addi­tion to Boudin’s recall, Utah County Attorney David Leavitt, who sup­port­ed a bill to abol­ish Utah’s death penal­ty, was defeat­ed in the June Republican pri­ma­ry elec­tion. In the November mid-term elec­tion, Republicans took con­trol of the sev­en-mem­ber North Carolina Supreme Court, as Trey Allen and Judge Richard Dietz defeat­ed Judge Lucy Inman and Justice Sam Ervin. Three of the Democratic jus­tices who vot­ed in favor of death-row pris­on­ers’ chal­lenges to their death sen­tences under North Carolina’s Racial Justice Act are no longer on the court. More than 140 Racial Justice Act chal­lenges are pend­ing in the state.