If elected DA, will Kevin Hayden keep Rachael Rollins' progressive policies in place?

Editor’s note: Following an internal review of his work, GBH News will no longer use Daniel Medwed as an on-air legal analyst. This decision was made following his being referenced in a Department of Justice report on U.S. Attorney Rachael Rollins and subsequent comments he made on air about her tenure and the 2022 Suffolk County D.A. election, without appropriate disclosure. High ethical standards and credibility are central to our work and nothing is more important to us than our audience’s trust.
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Earlier this year, former Suffolk County District Attorney Rachael Rollins became U.S. Attorney for Massachusetts, making her the chief federal prosecutor in the region. Governor Charlie Baker has since tapped an experienced former prosecutor, Kevin Hayden, to serve out the remainder of Rollins’ term. Daniel Medwed, Northeastern Law professor and GBH News legal analyst, joined hosts Paris Alston and Jeremy Siegel on GBH's Morning Edition to talk about the extent to which Hayden has maintained Rollins’ progressive policies — as well as his prospects for election to the full-time job in the fall. This transcript has been edited for clarity and length.

Paris Alston: So Daniel, Rachael Rollins was only Suffolk County District Attorney for a really short period of time — just three years, but she certainly made her mark. I'm thinking about all these really progressive policies she had during her tenure. What stands out to you the most?

Daniel Medwed: Several things, Paris. First, in terms of the big picture, she developed a national profile as a passionate, unabashed leader of the so-called Progressive Prosecution Movement, which is a movement that swept the nation over the past seven or eight years and that basically rejects the traditional tough on crime policies of many prosecutorial offices. Many of these newcomers are outsiders, former defense attorneys, women and lawyers of color who couldn't necessarily get the top job in years past.

Second, and on a more granular or little picture level, she gained acclaim for her policy of declining to prosecute 15 levels of low offenses in Massachusetts — ranging from trespass, to shoplifting to disorderly conduct. The presumption in her office is that even if there was an arrest for one of those low-level offenses, her office wouldn't proceed to trial. That gained a lot of attention across the country, but also earned her a few foes in the Boston Police Department, which thought that these cases should have been prosecuted.

Jeremy Siegel: So Kevin Hayden is now the interim District Attorney. So is there any indication about whether he intends to continue that “do-not-prosecute” policy?

Medwed: As of now, it looks like he's going to depart from it. It's not entirely clear, but he's sent a few signs or signals in that direction. There have been several reports in the media that he's not going to adhere to the “do-not-prosecute” list, and even his communications director earlier this month issued a statement saying something like, “We don't follow equations or formulas. We're just going to look at each case as it comes in, and decide whether to prosecute it or not.”

For what it's worth, I'm concerned about this. I think that there is data indicating that Rollins' policy works. Back in, I believe March 2021, a report was issued that found, looking at two decades of data, that people who are arrested for low-level offenses and not prosecuted are less likely to commit crimes down the road. So we'll have to see exactly what happens, but it looks like he's going to depart from Rollins's path.

Alston: Now, Daniel, are there any other examples of a policy or practice where Hayden and Rollins seem to differ?

Medwed: I think another example relates to something called the Integrity Review Bureau, which is an internal unit in the Suffolk County District Attorney's Office that investigates possible wrongful convictions in the county. And if that investigation suggests that an innocent person may be behind bars, the office will advocate for overturning that conviction in court. Under Rollins' leadership, she infused a significant amount of resources into that unit, and she installed a very well-regarded former defense attorney, David Lewis, as the chief.

That unit played a role in overturning a number of wrongful convictions, including the gun possession conviction of Sean Ellis, which was the only remaining conviction for a Boston man wrongfully convicted of killing a detective back in 1993 in Roslindale. Hayden's been a bit quiet in terms of his plans for the IRP for this bureau. However, apparently David Lewis is no longer in charge of that unit, which has caused a great deal of consternation in defense circles, and made some people think that perhaps he isn't as committed to this work as Rollins was.

Siegel: So Rollins and Hayden are different. He seems more conservative, or at least more of a moderate than she is. Do you think he has a chance to win the election for a full time position here this fall?

Medwed: I think he does — and here's why. A lot of the statistics indicate that name recognition is the big parameter in these elections. I saw one study that indicated that incumbents in chief prosecutorial elections win 94 percent of the time, and he's going to have another six months to get his name out there. So he's going to go into the primary in September with a great deal of name recognition. That said, he's going up against at least one person who has a high profile in town. Ricardo Arroyo, who's a Boston City Councilor left of center, has pledged to continue to implement Rollins's policies if he is elected. So I think it's going to be a fascinating referendum on whether the progressive prosecutorial movement is here to stay in Boston, or whether it's just a short term blip on our political radar.

Alston: And we just learned yesterday morning that Ricardo Arroyo has gotten an endorsement from Senator Elizabeth Warren. So to that point, Daniel, you mentioned all of the proof that Rollins's policies were effective. At the same time, there was a lot of pushback for the things that she did even during her Senate confirmation hearing. So do you think that these progressive prosecutors are going to have good chances when they do come up for reelection around the country?

Medwed: It's too soon to tell, frankly. A lot of them are still in their first term. Some of them are facing reelection soon. We've seen a lot of signs of pushback, a lot of blowback — not unexpected signs, but some really strong signs. For instance, in San Francisco and Los Angeles, there are new progressive prosecutors in place, and there have been movements for recall elections.

California has this amazing recall election process. And in fact, they got enough votes to have a recall election for the San Francisco District Attorney Chesa Boudin — that's happening in June. I think it's going to be very interesting to say whether this movement has legs for the long haul. I hope it does, because again, as you point out Paris, the data suggests that it's possibly working. But we'll have to see how it plays out this fall and in the next few election cycles.