Mass incarceration, judicial racial disparities dominate Democrat's campaign for attorney general

Xerxes Wilson | The News Journal

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Talk of being "tough on crime" is taking a back seat in the race for the Democratic nomination for attorney general to pledges of reducing the state's prison population and creating a more fair justice system.

Buoyed by progressive candidates and the rare occasion of a competitive primary for the nomination, social justice advocates are optimistic the race could lead to the state's next top cop emphasizing ending mass incarceration and racial inequalities in the justice system rather than locking up more people.

"The tenor is different," said Wilmington resident Raye Avery, who is also president of the Committee of 100 Black Women Delaware chapter. "There has not been this public discourse around structural racism and its impact on the black community and the relationship to law enforcement in the legal system. It is timely."

Four Democrats — Kathy Jennings, Chris Johnson, Tim Mullaney and LaKresha Roberts— are competing for votes in a circuit of three forums and debates with more to come leading to September's primary. These events have been dominated by questions about mass incarceration, improving diversity within the ranks of the state's prosecutors and ending practices that unfairly impact the poor, such as cash bail.

Two things are primarily driving this dynamic, observers say. The candidates must appeal to Democratic voters directly in the first competitive primary in two decades. And the questions are mirroring the swell of public and outrage over police shootings, Trump administration policies and high-profile stories about the number of minorities sent to jail.

The result may be that the voters know more about the candidates and their positions than in recent elections, and advocates will have a stick to hold the eventual winner to their campaign pledges.

Last contested race in 1998

This race stands out from other modern attorney general contests because there is no incumbent and no anointed Democrat to take the place of Matt Denn, who announced he would not seek re-election.

The last contested Democratic primary for attorney general occurred in 1998 when David L. Finger lost to John T. Dorsey, who ultimately was beaten by incumbent Republican Jane Brady. She served 10 years, before being appointed a Superior Court judge. Democrat Beau Biden then was elected unchallenged for two four-year terms by his party.

When Denn was running to replace Biden, his final pitch to voters in a debate with with Republican, Independent and Green Party candidates was greater police presence in Wilmington and reforming sentencing and pre-trial release practices that put violent offenders back on the street "prematurely." He was not challenged by a Democrat in that race.

This year's packed primary creates a situation in which Democrats are forced to stake their positions and appeal to the base.

"Even in a basically blue state — even if it is a little bit of a conservative blue state — if a candidate doesn't need to take a particular position on a particular issue, they don't because they have more room to do what they want when they get into office," said Kathleen MacRae, executive director of American Civil Liberties Union of Delaware.

The campaign and its issues also reflects a larger conversation going on around the country.

The ubiquity of video on social media in recent years has helped create a swell in moral outrage over police killings of civilians who are often unarmed and black. That's spawned a national push for greater accountability within law enforcement.

Drew Serres, executive director of Network Delaware, a nonprofit aimed at leadership development, said people are becoming more aware of law enforcement and the judicial system's ability to perpetuate disparities in crime and punishment.

The days when when candidates on both the left and the right prioritized an image of "tough on crime" are gone for now, he said.

"The general electorate is moving that direction," Serres said. "Especially for attorney general, if you were seen as soft on crime, you were not likely to win. Now I think it is shifting the other way."

Calvin Christopher is chair of the Delaware Racial Justice Collaborative, which Wednesday hosted a forum for Democrat attorney general candidates focused on ending structural racism in Delaware. He said having candidates state their position gives advocates a way to hold them accountable to the policies they are now endorsing.

"Based on what we hear from the candidates, particularly the successful candidate, we as a group can follow up on what is said here and how their positions and promises are actually put into action," said Christopher.

Progressive reforms sought

In the eyes of social justice advocates, Delaware's record regarding incarceration is shameful.

The state jails 756 per 100,000 residents, the 18th highest rate in the country and higher than the national average of 698, according to the non-profit Prison Policy Initiative. Delaware's rate is also higher than New Jersey (407), Pennsylvania (725) and Maryland (585).

"It is not because our crime rate is higher or because people in Delaware are bad people compared to other areas," MacRae said. "It is the policy that the state and the attorney general's office are following."

The problem isn't confined to the number of people incarcerated and the above-average length of prison sentences. It also can be seen in the racial makeup of the prison population, MacRae said.

Black people comprise about 21 percent of the state's population but are more than half of the state's prison population.

The attorney general oversees the Department of Justice and is uniquely positioned to address these disparities, say advocates for change. That office has supervision of the hundreds of deputy attorneys general that evaluate evidence and prosecute cases.

Last year, 93 percent of cases in Delaware's Superior Court, which handles felonies and drug offenses, were resolved either by a guilty plea or dropped charges. Plea offers, the dismissal of charges and the recommended sentence for a defendant are largely the realm of deputy attorneys general.

These deputy attorneys general also have sway over who is sent to drug or mental health treatment programs instead of prison.

"They are very influential in looking at low level crimes that do not deserve incarceration," Christopher said. "They also have sway in housing. There are areas of predatory lending where folks who are undeserved are the most impacted."

The state Department of Justice is also charged with prosecuting nuisance businesses, predatory lenders and fraudster landlords.

It has has a role in educating police officers on acceptable behavior and holding police accountable for misconduct.

In May, the local ACLU and partner organizations in the community launched its Smart Justice campaign and a corresponding candidate questionnaire with the aim of "electing an attorney general committed to ending mass incarceration."

Delaware's attorney general is the only elected law enforcement position in the state. So voters should pay close attention, MacRae said.

"To truly reform the criminal justice system, we need a partner in the attorney general's office because they have tremendous power and can have a tremendous impact on what does or doesn't happen in reforming the system," MacRae said.

Some daylight between candidates:

In the months following Denn's announcement that he would not seek another term, four Democrats stepped up to the plate:

Kathy Jennings was most recently the second-in-charge for New Castle County government. Before that, she spent two decades in the Delaware DOJ, prosecuting criminal cases and overseeing the department's statewide staff of prosecutors and eventually working as chief deputy attorney general. She has worked in criminal defense before her time with the DOJ.

She has worked in criminal defense before her time with the DOJ. Chris Johnson was most recently deputy legal counsel for Gov. John Carney. He previously worked in the Law Department for Wilmington city government as well as in private practice.

Tim Mullaney was most recently the director of Labor Services for the national Fraternal Order of Police. He is a former Dover Police officer and was a U.S. Marshal. He worked in the DOJ, rising to chief of staff under Biden. He has worked in New Castle County government, first as its top attorney and then as its second-in-charge administrator.

LaKresha Roberts was most recently chief deputy attorney general under Denn. She previously was a prosecutor in and ultimately led the DOJ's family division. Prior to her time in the DOJ, she worked in private practice.

One person is running for attorney general on the Republican ticket, GOP officials said. Former Chief Sussex County Prosecutor and Republican Peggy Marshall Thomas has not yet filed with state election officials. She did not respond to requests for comment.

Three months before the primary for the party's nomination, Democratic voters may have trouble distinguishing the principles of at least three of the four candidates.

In a questionnaire issued by the local ACLU, a forum hosted earlier this month by Wilmington's Democratic Party and the forum on racial justice last week, each of the four candidates agreed on several issues:

Delaware incarcerates too many people.

Cash bail discriminates by economic status and should be eliminated.

The DOJ should collect and publicize information outlining the racial and gender breakdown of plea bargains, sentence recommendations and diversion programs.

The DOJ's ranks of should be more diverse.

The DOJ should be at the forefront of resisting federal efforts to deport undocumented immigrants.

Marijuana should be legal.

One example of how the candidates see a social justice issue that rocked the state's largest city came in the Wilmington Democratic Party forum earlier this month. The candidates were asked how they'd seek to hold accountable police officers that act improperly or dishonestly.

The question was asked in the context of the death of Jeremy McDole, a wheelchair-bound man shot to death by Wilmington Police on the city's west side in 2015.

A report commissioned by the DOJ singled out Senior Cpl. Joseph Dellose for "extraordinarily poor police work" while wielding a shotgun during the incident, said he should not be employed in a role that involves carrying a gun in public but stopped short of an indictment.

The report concluded his conduct was not criminal because of a Delaware law that immunizes officers if they believe force is necessary to protect themselves, disappointing Wilmington civic leaders who said the result fomented distrust toward police.

“One of the biggest issues we have relating to police-involved shootings is the law itself, which makes it very difficult to prosecute. As attorney general, I’d be in full support of reviewing those laws and revising them,” Roberts said. She added that Office of Civil Rights and Public Trust, which is tasked with investigating issues of police misconduct, is understaffed.

Mullaney had to miss that forum due to a prior commitment, organizers said.

In her response, Jennings said noted she was only candidate present at the forum who had ever authorized the prosecution of a police officer, referring to Dover Police Cpl. Thomas Webster IV. Webster was acquitted of assault charges after dashcam footage showed him kicking a black man in the head, knocking him out and breaking his jaw during an arrest.

Jennings said the Office of Civil Rights and Public Trust.needs to be headed by a "very experienced attorney" and operate with transparency so people know the reason behind its actions.

Johnson endorsed the idea of "beefing up" the Office of Civil Rights and Public Trust, agreed with Roberts that changes of the law should be explored and pitched the creation of a citizen board to oversee police activities and potentially suspend an officer when misconduct occurs.

The events have impressed the audiences.

"I think they are woke," said one woman leaving last week's forum on racial inequality.

A snapshot of the candidate's position on the ACLU's favored topics can be found here.

In the coming week, The News Journal will roll out a position page aggregating the candidates' responses to questions in various forums.

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter.

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