St. Louis Circuit Attorney Kim Gardner, a reform-minded prosecutor who was first elected in 2016 and again by an overwhelming majority in 2020, announced Thursday that she would resign following threats from the Missouri state legislature to pass a bill stripping her office of power.
Missouri Republicans ramped up efforts this week to advance the bill, which would allow the governor to appoint a special prosecutor in any jurisdiction to handle cases said to include a “threat to public safety.”
Dozens of similar preemption bills filed in recent years target reform-minded prosecutors across the country. At least 17 states have tried to pass similar measures since 2017, soon after reform prosecutors started winning elections.
“This is not unique to Kim Gardner,” said Jill Habig, founder and president of the Public Rights Project, a civil rights nonprofit that has tracked the growing number of preemption bills. “What we’re seeing across the country is state-level overreach and resistance to reform.”
Kim Gardner resigns … https://t.co/0GHt7YnNok
— Tony Messenger (@tonymess) May 4, 2023
Thursday’s announcement makes Gardner the fourth reform prosecutor elected in recent years to leave office, following former Florida State Attorney Aramis Ayala, who faced attacks from then Republican Gov. Rick Scott over her refusal to seek the death penalty in a case; former San Francisco District Attorney Chesa Boudin, who was recalled last year; and Kim Foxx, the prosecutor in Cook County, Illinois, which includes Chicago, who announced last month she would not run for reelection.
“History will show that we’ve not seen this much attention and attacks on prosecutors and policies when it was aimed toward more punitiveness,” Foxx told The Intercept in the first in-depth interview since her announcement.
When the wave of reform prosecutors that began with Ayala and Foxx started growing to larger jurisdictions, the backlash was immediate.
“They were losing at the ballot box.”
“They were losing at the ballot box,” Foxx said. That started the proliferation of preemption bills that have accelerated in recent months, she said: “If you cannot beat them at the polls, change the rules.”
While bills introduced prior to this year tended not to pass, recent attempts have been more successful. Preemption legislation is currently moving in Georgia and Texas, and bills have already passed in states including Tennessee and Iowa.
The Missouri bill that Gardner objected to was prefiled in December and introduced on the first day of the legislative session. An original version had only specified changes for St. Louis County, where Gardner holds office, and was later amended because of concerns with the constitutionality of singling out one jurisdiction. Also in Missouri, the St. Louis Police Department is pushing for the state to take control of the department away from the city’s progressive mayor.
While the efforts to strip power from reform-minded prosecutors have occurred in places with diverse politics — one piece of legislation was introduced in deep blue California — in many cases Republican-dominated or closely split legislatures are making bids to neuter prosecutors in large, Democratic cities, often with large Black and brown populations.
For advocates of prosecutorial reform, the attacks across the country on elected prosecutors are part of an undemocratic push to restrict local governance and curtail people’s control over their own lives.
“This is really about overriding the will of the voters and not allowing communities to make their own choices. Kim Gardner was elected twice by her community,” said Habig. “Many of these prosecutors have been elected time and time again by their own voters. And instead of respecting the will of voters, because of this extreme resistance we’re seeing from reactionary legislatures and others, we see prosecutors either leaving of their own accord, being removed, or having their power threatened.”
Cook County State Attorney Kim Foxx poses for a portrait at the Zhou B Arts Center in Chicago, on March 10, 2022.
Photo: Armando L. Sanchez/Chicago Tribune/Tribune News Service via Getty Images
Gardner issued her resignation, effective June 1, just five months after the bill to strip her office of power was filed.
Criticisms of her in local media focused on Gardner’s handling staff mismanagement and office administration. Her prosecution of high-profile Republicans invited more controversy.
In early 2018, about a year after taking office, she prosecuted former Republican Missouri Gov. Eric Greitens, who was in office at the time. She indicted the infamous couple that pointed guns at people protesting police brutality in July 2020. The latter incident prompted Missouri’s far-right Republican Sen. Josh Hawley called on the Department of Justice to investigate her. Gardner had also come under attack from Republican Missouri Attorney General Darren Bailey, who filed suit in February to remove her from office. (Bailey issued a statement Thursday calling on Gardner to leave office before June 1.)
Gardner would acknowledge that she didn’t do things perfectly, said Miriam Krinsky, executive director of Fair and Just Prosecution, which advocates for sensible prosecution. Still, Gardner and other reform prosecutors — specifically Black women — have faced a level of scrutiny over cases and administrative issues that was not applied to prosecutors pushing tough-on-crime policies.
“The former president put a target on her back,” Krinsky said, referring to attacks by then-President Donald Trump on Gardner’s decision to charge the couple that brandished guns at protesters. “The fact that she was a woman, and a woman of color, led to a particularly hostile, hateful, racist, and sexist nature for many of the attacks that she faced. She’s not alone.”
Krinsky said that, whatever people think of the job Gardner did in office, her constituents have the right to decide whether to keep her in the job or not. “We haven’t seen more traditional prosecutors,” she said, “and certainly traditional white male prosecutors in the past, put under the kind of microscope that has been applied.”
Prior to 2016, when Gardner, Foxx, and Ayala were first elected, there were no comparable campaigns against prosecutors, who at the time typically took tough-on-crime stances, Foxx said. Today, she said, prosecutors are punished making data-driven policy fixes.
“You are disincentivized now from saying, ‘Listen, that didn’t work,’” Foxx said. “You are disincentivized from looking at the data to prove and demonstrate that increased incarceration rates didn’t make us safer. You are disincentivized from saying that the current methods that we have used and sold as public safety failed. You are disincentivized from talking about the racial inequities in our justice systems, disincentivized from talking about the lack of trust that communities of color have with law enforcement and prosecutors, and saying that we have a role in that.”
Gardner’s resignation comes seven years after she was first elected in 2016. She faced heightened public scrutiny before she even took office, not least for her support for certain criminal justice reforms like ending cash bail. She campaigned on prioritizing violent crime and gang violence, expanding mental health treatment options, and holding police accountable for misconduct. The police accountability measures included recommendations from the Ferguson Commission that investigated the root causes of the killing of 18-year-old Michael Brown Jr. by former police officer Darren Wilson, who was never charged.
In generally blue St. Louis, Gardner won the 2016 Democratic primary with 10,000 more votes than the next candidate and ran unopposed in the general election with 98 percent of the vote. She was reelected in 2020 with 61 percent of the vote in the Democratic primary and 70 percent in the general election — beating police-backed opponents in both races.
“For the entirety of her tenure she was constantly being scrutinized, criticized, and marginalized in a way that felt very unprecedented.”
“Calls for her resignation are not new,” said Foxx, who has been the target of preemption bills in Illinois introduced by legislators in rural areas hundreds of miles away from Chicago. “For the entirety of her tenure she was constantly being scrutinized, criticized, and marginalized in a way that felt very unprecedented. And that’s saying a lot coming from me.”
Foxx said she also faced pushback before being sworn in. The head of the Chicago chapter of the Fraternal Order of Police labeled her as “anti law enforcement” before Foxx swore her oath of office. She said her address was released on police blogs along with commentary that since she apparently didn’t care about fighting crime, criminals should show up at her house and meet her daughters.
In 2020, a group of Black women prosecutors flew to St. Louis to rally alongside Gardner as she announced a federal civil rights lawsuit against the city and the St. Louis Police Officers Association, claiming that they were involved in a racist conspiracy to push her out of office. (Gardner’s suit was dismissed without prejudice later that year.) Foxx was among those who signed a statement in support of Gardner.
“The vitriol was sharp and loud,” Foxx said. “As we tried to implement policies – whether it was our retail theft policy or our policy on bail – it was met with a level of scrutiny and vitriol that I hadn’t seen in other policymakers’ decisions, ever.”
Foxx also faced criticism for actions in high-profile cases. Her handling of the Jussie Smollett case — in which her office dropped charges against the actor after he was revealed to have faked being the victim of a hate crime — revived the attacks and calls for her resignation. A special prosecutor was appointed to take over the case, and his 2021 report said her office exhibited “abuses of discretion and operational mistakes.”
The case dragged on for three years. “I can only surmise that it was not because of the subject matter, but it was because of me,” Foxx said. “The history books will look back at this time or that time and really question how we allowed for our criminal justice system to be so perverted in the supposed interest of justice to limit the discretion of one prosecutor.”
Foxx also said she faced a barrage of death threats laced with racism and sexism throughout her tenure. “When people threaten me, it’s not just that ‘I’m going to hurt you,’ it’s, ‘I’m going to rape you.’ In a blog that was called ‘Second City Cop,’ my name was spelled F-O-X-X-X, three x’s. I was denigrated for my looks. It really was, ‘Maybe if she got fucked more, she would be better.’”
Last spring, a man was sentenced to 18 months in federal prison for threatening to “rattle her head with bullets” if Foxx didn’t resign, along with threats to other political figures. “This isn’t a policy dispute,” she said.
At the time Foxx took office, less than one percent of elected prosecutors were women of color and 79 percent were white men. “Our mere presence as women of color, as Black women in cities with large Black populations, and being the first, drew fear and trepidation among those with racist and sexist ideologies who were used to a certain power dynamic,” she said. “That backlash, not just to the reforms, but who gets to enact them — I don’t think we’ve spoken enough about what Black women have had to endure here.”
John Pfaff, a law professor at Fordham University, agreed. “All politics are local, and it can be risky to try to tell a common story across different cities, but there is something genuinely concerning about the fact that the three most high-profile reform DAs to either step down or decide not to seek re-election — Gardner in St. Louis, Kim Foxx in Chicago, Aramis Ayala in Orlando — have all been Black women,” Pfaff said. “It certainly suggests that the intensity of the backlashes they faced went beyond policy disagreement to the well-documented toxic intersection of race and gender.”
In coverage of Gardner’s resignation, local media highlighted a high-profile case from this February in which she faced criticism. A teenage girl was hit with a car, causing her to lose both of her legs. Gardner’s office had previously charged the driver, Daniel Riley, with first degree robbery and armed criminal action in 2020. When he was set to go to trial in July 2022, her office was not ready and dismissed and refiled the case the same day.
Gardner said a judge denied multiple requests by her office to keep Riley in jail. Riley’s defense attorney, Terry Niehoff, said that, while he wasn’t a fan of Gardner’s, she did ask the judge to consider Riley’s numerous bond violations and keep him in jail, and that those requests were denied by the judge. Niehoff told The Intercept that Gardner was an “utter disaster” for the city and for Missouri. He added, “In any event, the prosecuting attorney cannot revoke a bond; only a judge can do that.”
“Circuit Attorney Gardner was elected and then reelected by an overwhelming majority of her constituents, and the coordinated efforts to remove her threaten our democracy.”
Gardner’s overwhelming reelection in 2020 is further evidence that her resignation is the culmination of years of attacks, not any individual case, said Rachel Marshall, executive director of the Institute for Innovation in Prosecution at John Jay College in New York City, who previously the communications director and a policy adviser for Boudin, the San Francisco prosecutor that was recalled.
“Circuit Attorney Gardner was elected and then reelected by an overwhelming majority of her constituents, and the coordinated efforts to remove her threaten our democracy,” Marshall said. “These attacks have never been about public safety but have always been about politics.”
The argument often deployed against prosecutors like Gardner, Foxx, and Boudin is that their policies fuel violence. While there’s no evidence supporting the claims, it can be a persuasive in an environment where people are concerned about the recent spike in homicides. Election data shows, however, that communities most impacted by violence are the ones that overwhelmingly support efforts to reform the office of the elected prosecutor, Pfaff said.
“The concerted backlash against reform prosecutors by police unions and conservative legislators is always framed in terms of ‘respect for the victims’ — despite the fact that across multiple elections in multiple cities, the strongest support for reformers comes from the neighborhoods with the most violence, Black neighborhoods in particular,” Pfaff said. “The reform prosecutors, not the conservative legislators seeking to strip them of their authority, are the ones who are winning the votes of the victims.”