Rory Fleming, of Philadelphia, is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute, as well as the National Network for Safe Communities.
Attorney General Josh Shapiro. Source: AG Josh Shapiro Flickr.
(*Editor’s Note: According to a Shapiro’s spokeswoman, the case against Dana Bazelon was referred to the Office of Attorney General by Philadelphia District Attorney Larry Krasner’s office. The originating arrest was made by Philadelphia Police.
Updated at 12:14 p.m., 5/22/20 to include from the Office of Philadelphia District Attorney Larry Krasner: “The reporting in this opinion piece as it was originally published was inaccurate and unfair. The correct sequence of events are as follows: The Philadelphia Police made an arrest of a DAO employee, after which District Attorney Krasner was notified and immediately screened from this matter. The Philadelphia District Attorney’s Office referred the case immediately to the Attorney General, as is legally and ethically appropriate. It is the Attorney General’s Office’s duty to investigate this matter and make its own decision about how to proceed with this case. It would be inappropriate to comment on another law enforcement agency’s open investigation.”
By Rory Fleming
The facts were extraordinary in that they were wholly ordinary.
With a high of 62 degrees, Philadelphia District Attorney staffer Dana Bazelon allegedly left her 4-year-old daughter in her car for a bit over 30 minutes. Four windows were cracked open to keep air circulation, but not enough for anyone to reach into the car, as a police officer on the scene acknowledged. She took her 6-year-old son for a walk while her daughter napped.
She was charged with felony child endangerment by Pennsylvania Attorney General Josh Shapiro *acting on a referral from Krasner’s office after it was conflicted out of the prosecution.
Reading this, I wondered if every mom I knew growing up was actually a child abuser lucky enough to escape detection and conviction. Moms I knew often took quick stops to pick up small items at the grocery store or a Home Depot, leaving a sleeping kid in the car as an alternative to needlessly wrestling them awake. By the time my friends were around eight, we protested if moms wanted to take us in to shop with them. “Let me play Pokémon in the car,” I recall protesting.
Maybe things are different today because of the publicity about hot car deaths, but this Monday, May 11 was no hot day.
More likely, the felony charge issued by Shapiro’s office is a ploy to undermine Philadelphia District Attorney Larry Krasner and the movement against mass incarceration, using Dana’s life and her children’s lives as collateral.
There are many reasons to suspect such things from our dishonorable Attorney General. First, Josh Shapiro lobbied for a bill to strip DA Krasner’s prosecutorial discretion — the most important power a prosecutor has — when it comes to gun cases.
Shapiro’s staffers resorted to KGB tactics when they tried to coerce Philadelphia Inquirer reporters into adopting a heavier anti-Krasner slant in coverage. Shapiro hates Krasner. He’s just somewhat subtler than some in making it known.
More importantly, Shapiro is a proponent of mass incarceration and its worst excesses.
On the Pennsylvania Board of Pardons, he is consistently the voice of “victims’ rights” over common sense, advocating for elderly people who have spent their entire adult lives in prison to die behind bars for homicides they did not even directly commit.
Shapiro also aggressively seeks “drug delivery resulting in death” convictions, on grounds of alleged empathy for people who use drugs, despite the fact that many people who use or used drugs morally oppose the charge.
Sadly, a Hail Mary attempt to smear Dana Bazelon as a criminally bad parent seems to be nothing more than smart politics for Shapiro.
After Krasner cleaned house at the Philadelphia DA office, Shapiro hired many of the fired prosecutors, including some who held high posts in Lynne Abraham’s administration. Former Philadelphia DA Abraham was one of the most overzealous top prosecutors in American history, which has led to a steady wave of exonerations on murder convictions in the contemporary era.
Meanwhile, one of Dana’s sisters, Emily Bazelon, is perhaps the most high-profile journalist today who criticizes the broken U.S. justice system and points at unethical prosecutors as the source of its dysfunction. Her other sister, Lara Bazelon, is a law professor who has held high posts at the American Bar Association and has advocated widely for the removal of bad prosecutors at the ballot box.
All three Bazelons descend from Judge David Bazelon, who served as the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit and was one of the most heralded jurists of his time. A former federal prosecutor, Judge Bazelon later issued groundbreaking decisions acknowledging the complex intersections between the commission of crimes and mental illness.
In sum, it is understandable to not want to give someone accused of being a negligent parent the benefit of the doubt. We all want to protect children. But Shapiro is exploiting that for his own Machiavellian ends, which makes this move so devious.
I know I don’t believe the charge for a second, and would engage in jury nullification with a “not guilty” vote on principle if called. Anyone who wants to make our criminal courts about justice, not politics, should consider doing the same.
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