What to watch for in criminal justice on the Massachusetts ballot

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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Massachusetts has a reputation for being progressive, but when it comes to criminal justice policy, that reputation is a little more complicated. GBH News Legal Analyst and Northeastern Law Professor Daniel Medwed joined GBH’s Morning Edition co-host Jeremy Siegel to talk about key races on the ballot this Election Day that could have big implications for criminal justice in the Commonwealth. This transcript has been lightly edited.

Jeremy Siegel: Tell us a little bit about this disconnect between Massachusetts as a blue state — a blue state with a reputation for being progressive — and then the reality of criminal justice on the ground.

Daniel Medwed: I think our reputation as a progressive bastion largely stems from our stance on social issues: things like our long-standing openness to same-sex marriage, our leadership role in the fight for universal health care, things like that. But when it comes to criminal justice, the picture is far more murky. It's more purple than blue. So on the one hand, we have had moments, especially in our Supreme Judicial Court — the highest court in the Commonwealth — of progressivism. The SJC banned the state death penalty back in 1984, and has issued a number of progressive, defense-friendly rulings in the area of the Fourth Amendment, which is the prohibition against unreasonable searches and seizures by the police.

But on the other hand, over the years various governors and legislatures have persisted in an effort to revive the death penalty. We were the 49th of 50 states to pass a law granting prisoners with post-conviction access to DNA testing. And we have one of the stingiest records about clemency grants in the country. Over the past 20 years, our governors have only issued eight pardons and three sentence commutations to prisoners. Contrast that with nearby Connecticut, which issued 700 or so pardons in 2018 alone. So, as we said, it's far murkier when it comes to criminal justice than other spheres of social justice.

Siegel: We've talked before about the incredible power that prosecutors hold in our system, and how that plays into all of this. It's something that you've written a book about — the power to charge crimes, go to trial, and offer plea bargains. Would you say that our prosecutors in Massachusetts are progressive, at least when compared to other states?

Medwed: In the aftermath of the murder of Michael Brown in Ferguson, Missouri, back in 2014, there was a nationwide movement amongst activists to press for the election of progressive prosecutors. Prosecutors who saw their job not through the lens of being tough on crime, but perhaps being smart on crime — addressing things like police brutality, mass incarceration, overcriminalization and so on.

This movement really came into Massachusetts in 2018 with the stunning election of Rachael Rollins as the Suffolk County D.A., and the election of Andrea Harrington, a Berkshire County District Attorney. Now they both faced, almost immediately right out of the gate, opposition from entrenched law enforcement authorities, but with disparate results. Rollins, of course, is now the top federal prosecutor, the U.S. Attorney for the District of Massachusetts. Harrington didn't even make it out of the Democratic primary. She's not on the ballot. And I think it's fair to say that both of them will be succeeded after today by far more moderate, less progressive successors in their respective counties.

Siegel: Are there any candidates today who you would consider progressive prosecutors on the ballot?

Medwed: Like many observers in legal circles, I'm watching the race in Plymouth County for D.A. quite closely. It pits the Republican incumbent, Timothy J. Cruz, against a Democratic challenger, Rahsaan Hall. Now, I should disclose, Jeremy, that I'm a supporter of Hall, and a member of his policy committee. Cruz is the longest serving D.A. in Massachusetts. He was appointed back in 2001 by Governor Jane Swift, when President Bush tapped the Plymouth D.A., Michael Sullivan, to become our U.S. Attorney. He's won five elections since then, two of them unopposed. So he's a very formidable candidate.

Hall is a former trial prosecutor from Suffolk County, a civil rights attorney with the ACLU and an ordained minister. It seems clear that he's challenging Cruz from his left flank, that he's more progressive. And it will be fascinating to see whether Hall can ride this progressive prosecution wave, which may have already crested in 2020 after the murder of George Floyd, whether he could ride it into this seat.

Siegel: Well, given that, any thoughts on how this might turn out?

Medwed: First, incumbency is always a powerful advantage. I'm sure that's a theme, Jeremy, you're talking a lot about today — especially in lower, local races. And Cruz has been an incumbent for 28 years. I saw one study about local D.A. races that indicated that incumbents traditionally win 94% of the time. So he has a head start just by virtue of name recognition, and being in that office for a long time.

Also, take the demographics of Plymouth County. Based on the 2020 census, this is a county with a half million people, 83% of whom are white. And there are pockets of majority minority neighborhoods like in Brockton, but it's a strongly majority white county, that leans Republican. Even though Biden won in the 2020 election, Donald Trump secured about 40% of the vote. So it is a district that does lean right.

Siegel: In addition to Plymouth County, is there anything else this election that you're looking at?

Medwed: I'm looking at Bristol County, where there is a very significant sheriff's race between controversial Sheriff Tom Hodgson, who's known as the Arpaio of the East, a reference to the infamous sheriff from out in Phoenix a few years ago against a formidable Democratic challenger, Paul Heroux. I think the combination of Hodgson's alarming record, and Heroux's credibility could really put this seat into play, even though Hodgson, like with respect to Plymouth, has the advantage of incumbency.