By Stephen Cooper and Rory Fleming
Progressive Alabamians faced an election night last year that was by turns terrifying and soul-crushing, but also, when it comes to criminal justice reform, vaguely hopeful. While many were unsurprised by Trump’s victory in the presidential contest, there were, nevertheless, several heartening changes in the selection of the state’s powerful district attorneys. Sadly, however, stand-in Governor Kay Ivey’s recent appointment of Mike Anderton as Jefferson County District Attorney – an appointment that smacks of politics trumping the expressed will of the people – may undo much of the momentum reformists had worked to build.
States have differing procedures for replacing a DA who leaves for reasons that can span from assuming a higher office to being ousted due to criminal conduct. In New York, like in Alabama, the governor can appoint a replacement. For example, Kathleen Rice was a DA in Long Island from 2006 to 2014, when she was elected to the U.S. House of Representatives; she was replaced by Madeline Singas, her top deputy. Though New York Governor Andrew Cuomo had the legal right to choose someone else, he decided to retain Singas in the role. By contrast, in California, DAs who leave in the middle of their term are replaced by county commissioners, and in Pennsylvania, a board of local judges makes the decision.
These replacement procedures and the outcomes they yield are critical because, as criminal justice experts routinely emphasize, it is elected head prosecutors on the local level who are responsible for the vast majority of discretionary choices in the criminal justice system; this includes, for example, deciding who gets charged, and, with what crimes, and also, who faces the death penalty. Moreover, whether deserved or not, because of their high-profile jobs, district attorneys are often considered paragons of their community and their position is frequently a launching pad for higher political office. Many prominent members of Congress from both parties are former DAs; Senator Kamala Harris (in San Francisco, California) and U.S. Rep. Daniel Donovan (in Staten Island, New York) are just two recent examples.
Precisely because of their awesome, mostly unfettered power, the election of new state district attorneys can be an incubator for populist change. Unfortunately, in many areas throughout the country, people’s views on the need for justice reform have outpaced those held by their local DA. In part, this is because these races are often misunderstood or ignored. Last year, 72 percent of prosecutor races were unopposed. But in Contra Costa County, California earlier this year, county commissioners revamped the DA’s office by appointing Diane Becton, a former judge who has since participated in events hosted by a coalition of forward-thinking prosecutors called “Fair and Just Prosecution.” Refreshingly, Becton is the first African-American and first woman to become district attorney in the office’s roughly 160-year history. Becton’s appointment was only possible because former DA Mark Peterson resigned after pleading guilty to felony perjury (relating to his misuse of $66,000 in campaign funds). First elected district attorney in 2010, then re-elected unopposed four years later, Peterson was a staunch foe of criminal justice reform. He vigorously campaigned in favor of a terribly flawed ballot initiative (Prop. 66) that he ghoulishly and fraudulently advertised would “speed up” executions by claiming it would ensure all death penalty appeals are heard within five years. (The California Supreme Court has since struck this provision down as unconstitutional.) Furthermore, Peterson disagreed with his county’s voters on ballot initiatives to fix the state’s onerous three-strikes law (the same law that sent a man to prison for 50 years to life in prison for stealing $153 of videotapes), to change some felonies to misdemeanors (Prop. 47), and to broaden parole access and stop prosecuting kids as adults (Prop. 57). And finally, on top of all that, foreshadowing the winds of change perhaps, Peterson is a Republican, in a county where 69 percent of voters picked Hillary Clinton for President in 2016, and 68 percent of voters chose Governor Jerry Brown in 2014.
Echoing what happened in Contra Costa County, the Philadelphia Court of Common Pleas Board of Judges chose Kelley Hodge, the city’s first black woman DA who had experience as an assistant public defender, after R. Seth Williams was sentenced to five years in federal prison for corruption. The board turned down former DA Lynne Abraham; Abraham’s checkered record includes putting over 100 people on death row, opining that black people were responsible for 85 percent of the city’s crime, and remarking after observing her first execution that it was “a nonevent” for her. Fortunately for Alabamians, Abraham has not indicated any future plans to pick up and move to Alabama, because with these credentials, dubious as they are, she’d undoubtedly be the apple of Kay Ivey’s cold and calculating eye. Unfortunately, Ivey still has Mike Anderton to call upon. And that’s every bit as bad.
To understand why, what you need to know is: Jefferson County, Alabama consists of two criminal court jurisdictions; there’s Birmingham itself, and there’s the much smaller Bessemer, which lies outside of the city. In the 2016 election, Bill Veitch, a Republican incumbent district attorney, was defeated by Lynneice Washington, then a black municipal judge in Bessemer. Washington is now Alabama’s first black female head prosecutor since achieving statehood in 1819. While not as monumental or historic, progressive change also took place in the Birmingham district, where Charles Todd Henderson bested former District Attorney Brandon Falls. According to a report by Harvard Law School’s Fair Punishment Project, Falls helped make Jefferson County one of the less than one percent of counties nationally that sent five or more people to death row between 2010 and 2015.
While DAs like Falls have to sign off on office decisions to seek the death penalty, their approval is easily secured by line prosecutors in Alabama – prosecutors who have been called out by scholars and courts alike for their often overzealous, at times absurd, conduct at trial. Mike Anderton knows this all too well. He has personally obtained at least four death sentences, at times showing scant regard for legal ethics and human dignity. Perhaps most infamously, he wrongfully put an innocent man named Montez Spradley on death row, and denied paying his girlfriend to frame him. But documents from the Jefferson County DA’s office say otherwise; the woman was paid $5,000 from a “private fund” run through Anderton’s office, and another $5,000 from the governor’s office. Anderton has also said that a man with an IQ score of 56 was “faking” his intellectual disability to avoid death row, and he obtained a death sentence for an 18-year-old – a sentence that was later commuted to life without parole because of prosecutorial misconduct.
In 2016, Birmingham voters decided they’d had enough. They did not want a man like Anderton in charge when they voted for Charles Todd Henderson, the Democrat who defeated former DA Falls. Henderson, like the Bessemer district’s new DA, is “personally opposed” to capital punishment. Talking to reporters in November, he indicated that his office would engage in greater scrutiny in ensuring that the death penalty is only sought in the most heinous cases. Specifically, Henderson declared that it was “not going to be my routine policy to seek the death penalty in every capital murder case,” citing Jeffrey Dahmer as his death penalty poster child. (Dahmer was a serial killer who killed and ate body parts of 17 boys and men.)
Unfortunately for local voters, they did not know Henderson committed acts that would later see him convicted of felony perjury. He was charged just before taking office, long after news of the election had left people’s minds. That made Danny Carr, Henderson’s chief deputy, the “acting” DA. While he has not made public statements like Henderson’s about disfavoring the death penalty, Carr nevertheless cut a rare, progressive figure as a black Democrat DA in Alabama. But Alabama law permitted Gov. Ivey to appoint a new head prosecutor after Henderson was convicted. And so, despite impassioned pleas from prominent politicians and other members of the Birmingham community for her to keep Carr in the position he’d occupied for almost a year, Ivey chose Anderton, a Republican.
Ivey has made no secret of her partisanship – or her willingness to play along – irrespective of the negative optics. Having opined that “we need to have a Republican in the United States Senate to vote on things like the Supreme Court justices, other appointments the Senate has to confirm and make major decisions,” Ivey even endorsed Roy Moore for U.S. Senate, despite Moore being accused, among other outrages, of molesting a 14-year-old girl. (Oddly contrasting with Ivey’s embrace of the Senate candidate who has been accused of serious lascivious crimes, her “tough on crime” ideology recently led to her support for the leasing of private prisons, instead of reconsidering Alabama’s harsh sentencing schemes.)
Anderton, Gov. Ivey’s choice for Birmingham’s DA in lieu of Democrat Danny Carr, is better suited for an order of permanent disbarment than the role of top prosecutor. That’s likely how some high court judges in Oklahoma would rule, if Anderton practiced in their jurisdiction. In 2013, former Oklahoma City prosecutor Brad Miller got a 180-day suspension of his law license because of “egregious” prosecutorial misconduct leading to overturned convictions in a death penalty case. Justice Stephen Taylor on the Oklahoma Supreme Court wrote that “no attorney should ever commit [similar] ‘reprehensible’ conduct in death penalty (or any other) litigation.” Like Anderton, Miller worked for yet another elected prosecutor notorious for his death penalty zeal, Oklahoma County District Attorney “Cowboy” Bob Macy.
But since the discipline of prosecutors for committing misconduct is very rare – and exponentially so in Alabama – it is up to other elected leaders in government to keep the bad apples in line. Certainly, they are not supposed to reward them with promotions over other qualified candidates more representative of the will of the people. Voters, therefore, must hold Governor Ivey accountable for her bad choices in 2018. And hopefully, at the same time, Alabamians will send a strong message to DA Anderton – and to all of Alabama’s wayward prosecutors – that lawbreaking and unethical officials are no longer welcome in their state. While Carr is not the DA Birmingham chose in 2016, he is more capable of reflecting its values and its priorities than Anderton. And most importantly, he follows the law.
Rory Fleming is a Minnesota attorney and an alumnus of the Fair Punishment Project, a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute. He tweets from @RoryFleming8A.
Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California. Follow him on Twitter at @SteveCooperEsq.