- (female announcer) Production funding for Behind the Headlines is made possible in part by the WKNO Production Fund, the WKNO Endowment Fund, and by viewers like you, thank you.

- District Attorney Steve Mulroy tonight on Behind the Headlines.

[intense orchestral music] I'm Eric Barnes with The Daily Memphian.

Thanks for joining us.

I am joined tonight again by Shelby County District Attorney Steve Mulroy, coming up on about a hundred days in office.

Thanks for being here again.

- Well, thank you.

- Joined also by Julia Baker, who covers criminal justice for us at The Daily Memphian.

Thanks for being here.

- Thank you.

- I wanted to start, we have lots of things we'll talk about today.

Some high profile things, changes, new staff, you know, sort of a, give or take of a hundred years in as we tape this that is.

- A hundred days in.

- A hundred days, what'd I say?

- It seems like, seems like a hundred years but - It seems like a hundred years.

Okay, it seems like a hundred years.

Sorry about that, but where I wanted to start is actually with bail reform.

And you put forward a bail reform proposal and we'll talk about the details, but part of the reason I wanted to start there before we get to some other things that might be on people's minds is it struck me that bail speaks to a lot of the issues of the criminal justice system right now in the sense of who gets bail and thus released?

Who doesn't?

Who can afford it?

Who should be able to afford it?

What is the right number?

The, you know, some people, a thousand dollars bail is not a big deal, to others that's a mountain they will never climb.

- Right.

- It speaks to jail crowding.

It speaks to backlogs in the court.

- Yeah.

- It speaks to frustrations of police officers who work really hard to put somebody in jail.

We had a police officer in a couple weeks ago, and then the person is released the next day and they kind of throw their hands up.

And so, first, and I'll go back to you as, as a former law professor, what is bail and why does bail exist?

And then let's walk into your bail reform changes that you're making.

- Sure.

Well, you know, bail is the amount of money that somebody who's been arrested is supposed to pay to secure their future appearance.

So in order to make sure that they don't flee the jurisdiction, that they don't commit another crime, that they, you know, make all their court dates, they put some money down and the idea is they'll get it back if, you know, they meet all their court appointments and they don't flee the jurisdiction.

But in practice what happens is bail amounts are placed that are routinely unaffordable for most defendants, 'cause most defendants are poor.

That's who gets caught up in the criminal justice system.

And so you have this two-tier system where people with means are able to be out and continue to work their lives with their jobs, be with their families during the sometimes very lengthy process of coming to trial while who are poor have to languish at 201 Poplar.

And we have a particularly bad problem here in Shelby County.

We are the worst county in the state for the number of people who are languishing behind bars, haven't been convicted of a crime, waiting for their day in court for 18 months or longer solely because they can't afford cash bail.

- And bail also, is it set by or will it be set by the severity of the accused of the, the alleged crime?

So the bail for, and you know, the bail for driving with a repeated break, broken tail lights or something like that versus at the low end, I think we can agree that's the low end, but is still an offense, to murder, gun crime, you know, very violent crime.

Is that factored into the existing bail system?

And again, let's segue into how the reforms you're putting in place.

- Right, so as a practical matter, there's no set schedule, you know, for this crime, you get this bail.

But the severity of the offense is taken into account along with the defendant's criminal history, their ties to the community, you know, the likelihood that they will stay put as opposed to flee the jurisdiction, have they ever fled the jurisdiction or missed a court appearance in the past?

That all goes into the mix, right?

But again, the problem is, is that it's a two-tier system and it's also racially, we have racial disparities.

So, you know, one out of every four people is at 201 poplar for more than 500 days.

The longer you are there, the more likely you are to be African-American.

It is not a good system.

And a significant percentage of those people will ultimately be released without a conviction.

But by then it's too late, you've ruined their lives.

If you take somebody and you, you know, keep them away from their job, their education, their family, their community for 10, 12, 16 months and then say, okay, nevermind, you can go back.

It's too late.

So the reforms that I was talking about during the campaign, which I think actually will be implemented because of this new court order that I can tell you about in a second, is basically get away from that, do what Tennessee law actually provides for, which is a presumption in favor of pretrial release unless there's specific evidence that that particular defendant is either a danger to the community or a risk of flight.

Now obviously the more serious the offense, the greater the risk of flight 'cause they're facing a more serious sentence.

And the more serious the offense, the more reason we have to think that they might be danger to the community.

You know, someone who's committed violent crimes over and over again, they're a danger to the community, right?

So that goes into the mix.

But what we should have is a situation where it should be up to the prosecution to say that this particular defendant, based on their criminal history, their offense, their ties to the community is either a danger to the community or a risk of flight.

And if we can't prove that, then the default should be pretrial release.

- All right.

Let me bring in Julia.

- I know that part of the bail reform is a new bail hearing room.

- Right.

- And that's due to open in February 15th.

Can you kind of update me on the progress of that and then kind of what, what kind of difference would that make as some of those people languish in jail for 500 days or more?

- Right.

So what we're talking about here is a new court order that has already been put into place.

So it's really kind of already largely resolved.

And that was because that the ACLU and Just City among others threatened the county with a lawsuit.

And to settle that litigation, which hadn't actually been filed, they came to an agreement, the judges have ordered it, and so it's going to address, I think quite well, the problems I just articulated by doing this.

From now on, there's gonna be a separate bail hearing.

Everyone that's been arrested is going to be guaranteed within 72 hours a prompt hearing.

At that hearing, they will take a detailed look at that person's finances to figure out what as a practical matter is actually an affordable bail, 'cause right now we're not doing that.

And then either they get pretrial release or affordable bail, or if the magistrate, and they've got new four judicial magistrates who've just been appointed just to do this full-time, if they think an unaffordable bail is required, well, it'll be up to us and the DA's office to prove, by clear and convincing evidence that this person is either a flight risk or a danger to the community.

And that, you know, pre-trial release is not appropriate.

The least restrictive means can't be used and we've gotta go with an unaffordable bail to keep them in jail pending trial.

And we're prepared to do that.

The start date by the court order is supposed to be February 15th.

We're already starting to do training, getting ready to do training on this.

We, I don't know about everybody else, but we will be ready on February 15th to implement the new system.

- So all this seems to jive with what you said, you know, you've been on since you were elected and certainly during the campaign of the focus on violent crime versus lesser crimes.

So, and again, what, how do you change, bail reform, that was, thank you.

That was, for people who follow this stuff, very interesting about how this works.

How do you then take it to the court system?

Let's go there.

The courts, Julia did a great story for us in the summer and we'll be doing an update soon on the number of cases that the criminal court, the various criminal court judges actually finish out per year.

And it was, maybe at that midpoint in the year it was - Thrity-two trials.

- Thrity-two, across ten... - Divisions.

- In a city that has 300-something homicides, I mean 200 to 300 homicides.

- Right.

- However many other violent crimes, forget the, I don't wanna make light of lesser crimes, but just the violent crimes.

- Absolutely.

You've got thousands of accused violent criminals, and at midpoint in the year there were 30, I mean all signs are, it, it's not like somehow there's a massive acceleration in the second half of the year.

But Julia will be doing an update on that very soon.

What can you do from a district attorney point of view of saying, Hey, how can we get these, if your focus is on violent crime and serious offenders, how do we get them into the court system faster?

Do you have any authority or power or ability in that question?

- Limited authority, some.

So yes, the story you talked about by Julia Baker was much read by everybody over at 201 Poplar.

There was a lot of discussion about it.

There's only so much that I can do as the district attorney 'cause a lot of this is in the hands of the judges.

But there are some things that we can do.

So for example, I'm giving the assistant district attorneys more discretion, I'm returning discretion that they have to settle cases, particularly non-violent cases to clear those dockets but even violent cases to settle them so that, you know, we have fewer trials in the backlog.

We're also gonna be sort of rearranging the, the way in which cases are assigned to our units and then to the different courts so that we can spread those cases out a bit more equally among the different courts, and that'll address the backlog as well.

But you know, more broadly, what I've told the ADAs, the assistant district attorneys, my prosecutors, is they should be settling, especially the non-violent crimes, less.

They should not be worrying so much about things like non-violent drug possession so that we can focus on violent crime.

And just to give you one quick example, non-fatal shootings, something that we don't really pay as much attention to as we should.

We know that a small percentage of repeat violent offenders are responsible for a large percentage of the violent crimes and the people that are doing non-fatal shootings nowadays are gonna be homicide defendants later on.

And so I've issued new guidelines to make it harder for our prosecutors to dismiss, to close out a non-fatal shooting for reasons like witness fails to appear, witness being uncooperative, victim being uncooperative.

In order for them to do that, they're gonna now gonna have to get approval at very high levels in the office 'cause we're gonna force them to go back several times and see, are we, is there anything we can do to get this witness available so that we can prosecute this non-fatal shooting?

So the message is going forth, deprioritize non-violent drug possession cases, reprioritize non-fatal shootings, and obviously homicides are the highest priority of all.

- Yeah.

Julia.

- You mentioned restructuring how cases are assigned and I know that you have had, you know, the District Attorney's Office has vertical prosecution as well as the special prosecution unit in division seven and eight.

Are you going to stick with those or are you gonna change those?

- I have already made a decision, now I need to, you know, I'm gonna be consulting with the criminal court judges and the general sessions judges on this, right?

And a lot of this has to, I have to defer to them, right?

And I wanna show respect to them.

But in terms of my internal processes, I have already made the decision and announced to my prosecutors that we're getting rid of the special prosecution unit.

We're gonna keep the vertical prosecution model.

So for those listening at home, vertical prosecution means that the same team of attorneys deals with the case from beginning to end.

When it starts in general sessions, either misdemeanor or preliminary matters, when it goes upstairs to criminal court, you know, once we get the felonies onto the trial level, everyone stays with that.

I'm keeping that, but we had had this thing where if the case involved repeat violent offenders, then it would go to these two special divisions.

The problem there is that we had a lot of very very experienced prosecutors who were concentrated in those areas, and then other divisions had gaps in levels of experience.

There were also some morale issues, there were some concerns about forum shopping.

You know, whether, are we sending the cases we care about to, you know, certain judges.

I'm not saying that was valid, but I'm just saying there were perceptions.

We're getting rid of all of that.

We're making all the divisions equal.

That I think might help a little bit with the backlog.

It might also help with, you know, morale issues and, you know, a more equal distribution of experienced attorneys in our unit.

And we need experienced attorneys.

We're hiring, I want to do a quick plug there.

We've got lots of vacancies.

We want, we need people who are just a few years out of law school, we need people who are experienced.

Please send resumes my way.

- You've hired since in the last a hundred years, [Steve laughing] hundred days, you've hired quite a few.

You've done a couple rounds of hiring.

Are those, you've laid some off or some left.

- Yes.

Yeah.

Yes.

- Are you net gain, net increased the number of prosecutors in a hundred days?

- Yes.

- Okay.

- Yes.

We have hired enough people so that the number of vacancies has shrunk.

So at one point when I took over, there were like 18 vacancies and I think we're down to nine or so.

We're still working on it.

You know, the problem is we've actually hired more than 18, but a few have left since then.

And just for various and sundry reasons, not related to the election, they're moving, you know, they've got a sick relative, some private firm gave them a $20,000 pay raise that I can't compete with, that kind of stuff.

But we're, we're, chipping away at it.

Little by little we're gonna get up to full employment.

- I should also note that we're, we're recording this a week, this is a week delayed because of the big three Germantown Schools decision.

So if there's something that happens in the week since we talked and we didn't ask Steve about it, that is why.

So I should have said that earlier.

Well, let's shift to juvenile crime.

Obviously it's just been an explosion in juvenile crime nationally and here.

I think Julia did a story based on the, the, some police stats where, you know, auto thefts are way, way up.

And the biggest group by age of auto thefts, the single biggest group is 16 year olds.

The next biggest group is 18 year olds.

And as you think about some of the high profile crimes that have happened, they've, you know, the, they've involved juveniles.

And you ran, and you did not run with Tarik Sugarmon, the new juvenile court judge, but you all were aligned and you've done a lot of work together talking about reducing the amount of transfers of young people to adult court.

- Right.

- And yet there's this explosion.

I mean, auto thefts are not considered violent crime, but they, maybe, they are certainly very frustrating for people.

There is kind of, it is a huge problem.

MPD has called it a huge problem.

Other sorts of break-ins, carjackings, all these kinds of things are a huge problem with very young, young people.

How have you, have you changed your mind at all?

You view things, anything, what differently?

I mean, have you, and, and maybe on a very detailed level, have you transferred any youths, any children, any young people to adult court in the last hundred days?

- Yeah, to my understanding there have been no actual transfers since September 1.

I think our office has made some requests, but Judge Sugarmon has not granted them.

We are actively in the process right now.

I've got a working group based on my transition team to make recommendations about new policies regarding transfer.

That's still in process, but I can tell you that we're not gonna be approving transfers unless the approval comes at very high levels in the office.

We're gonna make sure that people at the very highest level are looking at each request for transfer.

And I think that the number of adult transfers and requests for adult transfer will never be zero, 'cause there are always gonna be those extreme cases, violent cases where there's a long criminal history where transfer is appropriate.

But I do think there will be markedly less transfers in the new administration compared to the old and just very quickly, - Yeah.

- If transfer were to actually help reduce crime that would be one thing, but that's not what the data shows.

The data shows that when you take these young people and you put them in adult prisons, they are actually more likely to re-offend when they get out.

And so we're not really making people safer by doing that.

Now what Judge Sugarmon and I are both working on are early intervention strategies where we can get them very, very early on at the first sign of trouble and get them into rehabilitative programs, training programs, things that will actually give them a different path other than the path that they're going down.

And I think that's something that we have to try.

I think the voters gave us a mandate for change, to do something different than the way we've been doing it for the last 10 years, which is just say violent crime keeps rising, let's lock more people up and lock them up for longer.

That hasn't been working, we've gotta try new approaches.

- And before I go to Julia, but, but I know people are listening saying, even if they are saying, great, that's the road we want to go to.

Rehabilitate 14 and 15 year old kids and, and when they, with lesser offenses.

But when, I mean, there's this explosion in violent crime now.

And it gets back, and I've asked you this question before, I've asked lots of people in criminal justice, what can, how can people feel safer today?

- Right.

- And tomorrow, when so much of the juvenile crime, so much of the crime is happening on juveniles and your tools, and one of your predecessors, Bill Gibbons, wrote, and you may disagree or agree with him, that's fine, but wrote a really interesting column for us back, I don't know, some months ago.

He who is a more-- - Blended Sentencing?

- What's that?

- Blended Sentencing?

- Blended sentencing, the reforms you need that you really are limited and the juvenile court is limited, in alternatives to, to transferring to adult because in so many cases, once, if a juvenile who isn't transferred to adult court, despite how violent the crime is, once they turn, what is it?

- Nineteen.

- Eighteen, nineteen, they're free and it's expunged.

And the kids know this and the gangs know this and it, it creates a kind of cycle.

So what tools do you have now to address it with the violent criminals?

- Right.

So first of all, blended sentencing is something that I favor, that Judge Sugarmon favors, it's bipartisan.

Bill Gibbons supports it.

Judge Sugarmon's predecessor, Dan Michael supported it.

Recently elected state Senator Brent Taylor supports it.

So it's something that we need to, to think about as a third option.

Because right now, either we send them off to adult prison where they're more likely to re-offend.

We're essentially sending them off to crime college where they learn to become hardened criminals not making us safer.

Or we keep them in the juvenile system, which sometimes is good, but if the offender is say 17, then 2 years later at 19, we have to let them go.

That's a problem.

Blended sentencing is the middle ground approach, right?

Where we can do things to them up until the age of 21 or 25.

I think it's worth considering.

But your question is what can we do right now?

Well, you know, I'm actively working in partnership with Judge Sugarmon about youth reentry programs so that you know, when these offenders are, you know, detained for some period of time when they come out, we get them into programs, we actively engage them, we require that they attend these programs so that they've got alternatives to violent crime.

I think that's actually more effective than what we've been doing.

But to your question, are we gonna completely turn the curve around next month?

No, it's gonna take some time.

- Blended sentencing, that you would need legislative state - Correct.

- For that.

Okay, Julia.

Go ahead.

- Yeah, that's what I was gonna ask.

And also when do you think we could see that happen, blended sentencing?

- Well, I mean it could happen as soon as the next legislative session if the general assembly approves it.

You know, realistically, sometimes these things take several legislative sessions before you get it done.

But you know, it would be great since that it has bipartisan support, it would be great if they could get it done this, this next legislative session.

But you know, that's not the only thing that we can do.

Some of these other things that we're talking about, youth reentry, we can start doing that right now on the local level and we will.

- I'll stay with Julia.

- So there have been, I guess on another note, there have been a lot of group thefts and smash and grabs.

There was a Walmart theft where 22 suspects took more than $7,000 worth of merchandise from a Walmart by breaking into an automotive window, and then that very same night there was more than $100,000 worth of Nike shoes and toys taken from a shoe store.

And then over the summer there was that string of liquor store smash and grab thefts.

And I know that you have said you would prioritize on violent crime, but what about these kinds of thefts, 'cause they are a problem.

I've talked to business owners who said they're more worried about these kinds of things than they're worried about murders and carjackings.

So how do you plan on addressing these crimes?

And then also do you think these are part of larger organized crimes?

- I don't have any information that they're part of some sort of organized crime effort, right?

I can't speak to that.

I do know that it is an issue and as far back as the campaign I was hearing from business owners that, you know, like car dealerships and jewelry stores where there was like repeat over and over again, right?

And you know, clearly the first level of response there is for law enforcement, right?

So law enforcement needs to do what it can to, to catch these people, right?

And I wanna support law enforcement every way I can.

I have a good relationship with, you know, law enforcement locally.

But you know, when you've got a repeat pattern like that and you're talking about lots of damage, well obviously we need to take that seriously.

When I say prioritize violent crime, I'm not saying we are no longer going to prosecute any non-violent crime.

Obviously in situations like that, we've gotta take that seriously.

I do say though that, you know, we ought to be thinking more about exploring restorative justice techniques which have worked well in other jurisdictions.

And that actually has worked well with juvenile crime as well, I should have mentioned that.

Over in Davidson County an organization called the Rafa Institute is using restorative justice in juvenile court and they are really reducing the recidivism rate.

And those are the kinds of new things that I think we need to try.

- And I know Julia, with four minutes left here, you had a question about Arkansas's legalization and just marijuana legalization in general.

- Yeah.

So that was something that you a advocated for.

You urged Arkansans to vote for recreational marijuana, but you know, that did not pass.

However, they have had legal medical marijuana since 2016.

But you know, experts here in Tennessee, they say we might be the last state standing regarding legalization.

You know, have there been any directives to kind of more lowly prioritize the prosecution of that?

And then also do you plan on bringing any kind of advocacy for decriminalization to your legislation?

- I don't think I'm going to be pushing decriminalization in the Tennessee General Assembly.

I'm realistic, right?

If I'm gonna be asking anything of the general assembly A: I'll be doing it through the Tennessee District Attorney General's conference, you know, which is the primary vehicle for that.

And my focus would be on getting the resources I need to prosecute in a high crime area like Shelby County.

You know, in terms of my office, you know, I mean I've already mentioned, I have told my staff that we're going to deprioritize non-violent drug possession and that goes double for marijuana.

You know, I mean, I think Tennessee is clearly on the wrong side of history here.

I think ultimately we're gonna see that marijuana is legalized completely, including recreational purposes throughout the country.

And Tennessee will be last probably and I think that's a shame 'cause right across the border, I mean, in all different directions we've got access to either medical marijuana or in some cases recreational marijuana.

It's this crazy patchwork quilt.

Why it's different in one state versus another, I don't think makes any sense.

And of course it leads to racially disproportionate enforcement, as we know.

So I think it's problematic.

I think we're on the wrong side of history and I'm trying to do what I can to just deal with the law as it stands.

- The lots of talk about Memphis building, getting, having the state build its own DNA, you know, lab goes back to the rape kit backlog.

- Right.

- Just the state, just this week the state came out and said they're looking for some contract help to get the backlog down but that it would be six months before they could get through even a thousand DNA tests, which include rape kits.

Are you in favor of Memphis either building its own or getting more resources?

I assume that helps you immensely in your work.

- Yep.

I'm in favor of a local lab.

I think it would definitely help in reducing the turnaround time for DNA testing.

You know, we used to have one here in Memphis, then it got moved to Jackson.

You know, TBI, I've talked to them.

They say that, you know, they're gonna be getting more staffing and they're gonna be bringing that turnaround time down.

They are telling us, you know, maybe to get from 10 to 11 month turnaround on DNA testing to something like 90 days, that'd be great.

But of course it's gonna take a while before they get there.

But at the end of the day, I'm just gonna deal with the resources that I have.

I have no control over that.

If I could just make a quick plug.

- Yeah, yeah, we could.

- So, you know, we talked about the first hundred days.

I plan on making a hundred day address and that should be December 21st.

And we're planning on using it, the County Commission chambers at four o'clock.

And I will cover all the things that I didn't get a chance to talk about today.

[all laughing] - Okay.

Yeah.

And Julia, of course, will be there and we will cover that as well.

We could do a whole show on this, truth in sentencing, how much have you butted up against that yet?

- Truth in sentencing is the law.

I'm enforcing the law.

Okay?

I did not think truth in sentencing was a good idea.

I think the experience in Georgia and Arizona with truth in sentencing and our own experience a few decades ago shows that it doesn't reduce crime.

It just balloons prison budgets.

But I'm gonna follow that law.

But at the same time, prosecutors have discretion in how to charge cases.

And I think that will inform how we decide to charge a case.

Are we going to charge it as something that triggers truth in sentencing or not?

That's something that we'd think about.

- All right.

I didn't give you enough time for a very complicated, but appreciate you being here.

Thank you very much.

Julia, thank you very much.

Appreciate you being here as well.

That is all the time we have this week.

If you've missed any of the episode, you can get it at wkno.org or you can look for it on YouTube or you can get the full podcast of the show on the Daily Memphian site, iTunes, Spotify, or wherever you get your podcast.

Thanks and we'll see you next week.

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