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Karen McDonald: Moving the needle of justice


Oakland County Prosecutor Karen McDonald surprised the legal and political communities in 2019 when she resigned from her position as an Oakland County Circuit Court Judge shortly after being re-elected in November 2018 to run against longtime prosecutor and fellow Democrat Jessica Cooper, without any assurance that she would be sitting in the chair she now occupies as a more progressive voice in the county.


“It was obviously a big shock to everybody, me leaving the bench. Especially because I had no certainty that I was going to win either election,” she said.


Having been an assistant prosecutor in the office and then worked in private practice before becoming a jurist, McDonald was hungry for more – not for fame or public acclaim, but for the ability to produce long-term, institutional change in both the criminal justice system and the mental health care system, which she believes have failed too many defendants.


“I felt like, you know what, when you’re a judge, by the time people are in front of you, they’ve already been charged. There’s sentencing guidelines, there’s...you can’t move the needle on anything. You’re just there. You’re watching a lot of people go to prison.”


In a candid one-on-one interview with Downtown News Editor Lisa Brody, McDonald discusses her first 100 days in office, what she has achieved so far, her goals looking forward, from treatment courts and smart justice to working with the state legislature and law enforcement, and changing the culture in the prosecutor’s office, whether for people of color and working parents, as well as for her efforts to empower assistant prosecutors to lead on their own – and to be the boss she wishes she had when she was working her way up.


You campaigned in 2020 as part of the progressive prosecutor movement which has been moving across the country in the last decade but started to get serious media recognition with the elections in 2016, in places like Boston, New York, California, Missouri, for example. Obviously your message struck a chord in Oakland County. The movement, still in its nascent stage, tends to seek reform of the criminal justice system in this country, ending mass incarceration while still championing public safety. The movement can include relying more on diversion programs and treatment programs as an alternative to jail time, choosing not to prosecute some low-level crimes, and refusing to prosecute cases using officers with a history of dishonesty or unreliability. Would that be an accurate condensation of your approach for the office of county prosecutor?


MCDONALD: When people say progressive prosecution, that can mean a whole lot of things. There’s different levels of that, obviously. I don’t think I’m the most progressive prosecutor. I don’t think of it like that. And I’ve never thought of myself as progressive or not progressive. I just think of myself as being committed. Criminal justice reform, we need change. And it’s really embraced by Democrats, Republicans, independents. And I think everyone understands now, regardless of what letters are after your name, that what we’re doing right now has really not worked. We talked about these short periods of incarceration, for crimes that occurred because of a mental health issue or a drug addiction – people want to do what works. And that doesn’t work. So I think that’s at the core of reforming. When you look at the data, and you see the numbers of people we’re incarcerating, and they’re higher than any other nation per capita in the world, that’s not something I think the United States wants to be known for. I think people are getting frustrated, and they just want change.


Never would I ever thought that in Oakland County, I could run for a countywide seat, and with my commercials with the Black Lives Matter sign – I never thought that would happen in this county. But it turns out, we’re a lot more similar than we think we are. We really are. Because people have humanity and compassion. And now things are on film. Things are being captured. And these you can’t ignore anymore. And a lot of people you know, they wanted to ignore, there’s not systematic racism, we don’t treat Black and people of color differently. But you see it, it’s captured, and we can’t ignore it. We just can’t.


I attended a march in Birmingham, and it was just really inspiring to look around and see my neighbors, my peers, and it really didn’t matter what they consider themselves politically. People want change. And I think we are lucky in Oakland County – if you think about all of the disturbances and the conflict that occurred across the nation, that did not happen here. And it’s because the local law


I was really motivated, inspired throughout the campaign. Because it didn’t really matter what group of people I was talking to whether I was, out in my neighborhood or at a group speaking...the message resonates with people. So along with just wanting like reform, I think people are also really starved for authentic genuine leaders. I didn’t need to do this. I had a great job, I could have kept that job the rest of my career. And I took an extreme risk. I had to step down a year ahead of the filing deadline. Everyone told me you cannot beat Jessica Cooper. She’s never lost an election, it won’t happen. But I decided that the risk was worth it. And that if I wasn’t successful, I could at least be okay with the fact that I tried. And I think more people, like me, actually have to step into the arena, as Brene Brown says, and take a chance. It’s difficult. It’s been a difficult job. It’s been a difficult 100 days, but I’m really proud of what we’ve done. And I’m really proud of the culture shift that’s gone on here.


Every new administration seeks to put their own people in place, and some others want to move on. One of the leading progressive prosecutors in the national movement is Larry Krasner, the DA for Philadelphia County, and when he entered office, he fired assistant prosecutors who were not in agreement with his proposed changes. How have you conveyed your enforcement philosophy to assistant prosecutors and how did they react? What has turnover – voluntary or otherwise – in your office looked like in the first four months? Who are some of your key new hires?


MCDONALD: I’m not Larry Krasner. And I did not come in with broad declarations, black and white mandates. I really feel strongly that good lawyers who work hard should have jobs. I met personally with every single person – right now, I think it’s 86. Its usually hovers around 90. But I also met with staff. Usually what happens is they hire a transition team where they appoint a transition team. That team interviews everybody and then gives recommendation to the elected official, but I want to – it’s just who I am. I wanted to make that personal connection. And I wanted to make sure that if I decided not to reappoint somebody, I had really good reasons for that. And I think...I’m certain I retained more people than any other prosecutor...I retained all of them, but five.


I can show you the first email that we sent before I even took office. And it was, I want you to call me Karen. And I care about what you think. Here’s a survey. Tell us what you like about the office. Tell us what you think we could do better. And tell me what your personal goals are, tell me what piece of advice you have. For me. I think that was the most critical thing, an important thing I did so far. Because culture eats policy for breakfast. There’s a lot of stuff that I wanted to do. But I want buy in.


I didn’t come in here, nor do I march around saying I’m a progressive prosecutor. I would prefer to call it common sense criminal justice reform. It’s smart justice.


I’m pushing back on progressive because I think that’s a lot of times what’s used by Republicans to make me seem extreme, or overly liberal. It’s just scary. Like, you’re gonna want all the criminals out, and you’re gonna go after the police. And I’d rather just be known for being reasonable and compassionate.


And it was important to me that the people here know that they are valued, they will be listened to, they will be respected. And I want input. And that approach has really, really been successful. Because those that do question because you’re asking them to do something they’ve never done, which is, by the way, just use their discretion. Like they come up here, and they say, ‘Okay, I have like, a serious, violent crime or sexual assault,’ and traditionally they would come up, it was a really scary experience for them. And I say, ‘Okay, well, what do you think? ‘They just kind of stare at me. And a couple times I heard, ‘Well, you’re the boss.’ And I said, No, you’ve been doing this a long time. I really want to know what you think not what you think I want to hear. But what...do you want to do with this case? And I and this is what I say, if you didn’t have to ask anybody, what would you do? Of course, it just like charge the most, automatically do the most you can, say no deals and then (ask for) the harshest sentence. Like that doesn’t make any sense because the warrant writer will write the case. But then by the time you get to the circuit court, those lawyers now to get talk to the defense attorney, they know more about the case. They know more about the individual, they’ve talked to the victim. That it’s one side, it’s not one size fits all.


I won’t give them rules. I am empowering them, asking them to think critically, which is what we should be doing. If I can’t trust an assistant prosecutor to go into the courtroom and think critically, then what are we doing?


I’ll share with you an article I wrote for the monthly newsletter about being a working parent, and how working moms need grace. And just because we’re out the door at four to pick up from day care. If we go see a soccer game, it doesn’t mean we’re not picking up our work after our kids (are) in bed. And I had lawyers in this office email me the next day and say, I cried the entire time I read that. It’s the best email I’ve ever received. And not just for the moms, but the dads, too. I believe that if you treat people with respect and value that you get it back by your employees. My whole career like I pretended I didn’t have kids.


(Rather than one chief assistant prosecutor, like Paul Walton in the previous administration), we have somebody in charge of policy and training, a chief assistant, and then a chief of administration, and then a chief of litigation. They’re all up on the fifth floor. And those are the people I rely on the most, but I have division chiefs.


Can you tell us about the Hate Crimes Unit and how much personnel is devoted to this effort?


MCDONALD: It’s in our Special Victims Unit. We have one prosecutor who is specifically trained, with specialized training, and she reviews the case in the warrants level, and then vertically prosecutes it so you stay with the victim. We’re also trying to educate local law enforcement so they can spot crimes that are motivated by that kind of prejudice against ethnicity, help people identify their religion. It’s not enough to keep her full-time busy because those crimes, they’re not being reported. They’re underreported and then in certain communities, they’re hard to spot by law enforcement. But we just had a really, really blatant hate crime, ethnic intimidation within Walled Lake. It’s really important to take those crimes seriously and to vigorously prosecute them and hold people accountable and to make sure the public knows that it’s happening.


We partnered with Fair Michigan so that we are trained to prosecute cases that involve the LGBTQ community. And they provided advocacy help and special training.


Before you became prosecutor, you were a strong advocate for releasing, paroling or re-sentencing juveniles who had previously been sentenced to life in prison. The previous prosecutor had fought that, refusing to review cases from this office. Why did you feel that was so important, and do you still feel that way? What efforts has your office undertaken to combat the previous recalcitrance? What do you recommend should be done in sentencing of very violent juvenile offenders?


MCDONALD: I had to review all the juvenile life sentences, which, as you know, was also a big problem for me. I don’t think the prior prosecutor followed the law...I think at the time there were 20 to 29 (cases to review).

It was just complying with the law...Unless the law says that somebody is irreparably corrupt, they cannot have a life without parole sentence. You know what we know about brain science, when your brains not even fully developed until you’re like 27 years old?


We reversed the positions so far for 22 of them, asking for new terms of years. And by the way, a lot of times, it’s 40 years – like these people who’ve been in prison for sometimes 30, 40 years. So it is certainly not like you’re not in prison or it’s a free pass. You look at their conduct. And when you have a case where somebody has gone 20 years without an incident of misconduct, they’ve taken every educational class training – it’s hard to make the case that they should still be in prison at the age of 50 for something they did when they were 16.


My big issue with the prior administration, that really, I think, started me on this path was the refusal to participate in treatment courts. And I just firmly believe that incarceration for short periods of time, for people who have a mental health issue or drug issue, it just makes sense to me that economically, it’s very expensive to house people and MDOC. And then we’re releasing them. We haven’t addressed the mental health issue. And I think right now, the prosecutor really does have the power to influence that. We can create our own diversion programs, we can consent and get involved in treatment. There’s now a Mental Health Court in Oak Park, we have a Veterans Court, a Juvenile Drug Court and Adult Drug Court. They’re not easy, but they’re just ways for people to get through the system in the process. If they do everything they’re supposed to do, maybe they don’t have a felony on their record, maybe we’ve managed to address the mental health thing


I created a Racial Justice Advisory Council, where I meet with stakeholders to listen. And a Law Enforcement Advisement Advisory Council. I really want to work with law enforcement to embrace more reform policies so that we can increase trust, for the community and for law enforcement.


We have victims to protect, we have a community to keep safe and I am never going to let my personal ego or disputes or personality conflicts get in the way of that.


During the primary election last year, you stated that you planned to meet and collaborate with all the stakeholders in the criminal justice system – judges, county sheriff, police chiefs, policy makers – to get everyone to buy into your new approach as county prosecutor. Have these meetings taken place? If so, what has the reaction been from the various stakeholders?


MCDONALD: They’re thrilled and surprised to be a part of it. They want and are really excited to have a forum to talk to the prosecutor. I meet with our legislators in Oakland County, frequently, and hear from them. That’s never taken place before with Democrats and Republicans. We certainly have a diverse group in and I mean, not in an ethnically diverse, but in a thoughtfully diverse group in Oakland County, but they represent the population. And I want to hear from people who care about these issues. I want to hear from people who disagree with me and agree with me. I have to say, though, I really want to stress I really have not introduced anything that has been drastic. It’s communication. I was on the phone today with a legislator from Oakland County who wants to talk about a possible change in the felony firearm law. There’s a huge package of bills coming through about police reform. Defunding the police just makes no sense to me.


Let’s talk about the change in criminal justice philosophy that we see taking place. Prior to now law enforcement and criminal justice officials operated on the “broken windows” theory, first put forth by social scientists James Q. Wilson and George Kelling in 1982, that championed the value of taking action against petty crimes as a way to establish a certain societal norm that would prevent an escalation of more serious crimes. Some say that approach was directly responsible for the noticeable drop in crime in major cities such as New York City. But some in the progressive movement are actually moving to end prosecution of low level crimes – like loitering, shoplifting, for example. Some prosecutors – like in Boston – have issued to assistant prosecutors lists of crimes they will no longer prosecute. On the campaign trail you talked about starting first offender programs and diversionary programs for non-violent first offenders. Could you envision your office taking the approach that some crimes will no longer be prosecuted?


MCDONALD: So a lot of progressive prosecutors, I guess, have made public statements and said, ‘we’re not going to prosecute,’ like Eli Savit said, for sex workers, and we’re not going to prosecute shoplifters. That’s just not my brand. I’m not doing that. I’m not comfortable. Isn’t...every case different? Do I think that we should look for alternatives to hold people accountable, especially young people, rather than just slapping a conviction on their record? A hundred percent I do. And I think there are a lot of great ways to do that. The data really shows that if we want to reduce crime, we have to care about kids, we have to care about how to provide safe and healthy child care for people, we have to provide a lot of interventions when children are younger and provide resources. It’s just not so simple, like let’s prosecute everybody for throwing a rock at a window. Nothing I’m doing here is easy, so you’re looking at each case, case by case.


And I’m also looking at ways that we can actually go upstream, as they say, and really find out – who’s throwing the kids in the river? And the one thing that I think I bring to the table that hasn’t been highlighted before is my background, as a family court judge and the abuse and neglect. Most people don’t even realize, but we have a whole juvenile division. They’re in charge of representing the Department of Health and Human Services, when they file petitions for neglect and abuse, either remove kids from home, put them in foster care, or terminate the parental rights, and they also prosecute juvenile delinquents. That’s the most important division in our entire building. That’s right. That’s the foundation. And when I tell all the other prosecutors, you know, that’s ‘Oh, that’s for the people who aren’t serious.’ And I’m like, No, no, no, no. And so I switched people around, and I put like, really major, major crimes prosecutors in the juvenile division in the district court division, because that’s what we should be doing. They get a taste of everything. And they understand.


I took a deep dive in this because I was a family court judge. Even one day in placement and foster care increases a child’s likelihood by seven times of homelessness, serious mental health, incarceration. So let’s, let’s go upstream. We typically prosecute those cases, and we know that they have a very high likelihood of ending up in the adult system. So let’s embrace the resources that are out there. There are so many wonderful models all over the country, about ways that you can target these crossover youths, and really lean in and see, okay, what do we need, we know here we are, these are the people who we are going to end up prosecuting someday. And it’s really not even that we’re going to prosecute them, but they’re going to commit crimes,. And those crimes usually have victims. So I do believe it’s my job to identify those individuals, and have my office figure out ways. And we don’t have to invent this because there are great models all over the country, about things that we know can be effective in reducing the likelihood that they’ll commit crimes, or be further victims of crime.


I think that is the single biggest difference about Karen McDonald versus Cooper, Gorcyka, Dick Thompson, all of them. They didn’t know much about the juvenile system. It was kind of a place where the prosecutors who didn’t really want to prosecute serious crimes, but it’s so important.


Bail reform is a huge issue for reformers, because bail for non-violent offenders is often a form of debtor’s prison. What are your thoughts and efforts on that, and why has that been an important change for this office to take on? How do you affect a change in the system when judges have the final say on bail?


MCDONALD: This is proving to be a much bigger challenge, because right now, we do not have prosecutors at district court arraignments, for the most part. So we are putting together a pilot program with three district court judges who really want to work with us and be flexible about allowing us to be at arraignments. And it’s not just that it’s not an opportunity to say, Judge, I think there’s a personal bond that is appropriate. It’s also a great opportunity at the very beginning of a case to say, Can we resolve this somehow? The persons represented there, let’s divert somebody into a first offender program.


To abolish cash bail, for a lot of people in the community, they don’t understand what that means. And what it means is somebody who is a danger to public safety, should be either heavily supervised, or incarcerated or detained pretrial. But the majority of these cases, that is not the case. And what happens is, there’s always a cash bail. And if you and I get pulled over for drunk driving or like, arrested for retail fraud, and you have the 500 bucks to post cash bail, and I don’t, you’re encouraged to stay in jail, for retail fraud until my trial, and then it could be six months. And so your pre-trial, they say, well, you lose your job. You lose your automobile, you lose your children and maybe your dwelling.