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Crime on the Ballot

A Look at this Year’s Soft-on-Crime Attack Ads

Campaign ads in the age of criminal justice reform.

It’s campaign season, which means the long shadow of Willie Horton is with us yet again. George H.W. Bush’s 1988 attack ad, which blamed his Democratic opponent Michael Dukakis for releasing a man who went on to commit more violent crimes, has become shorthand for a style of political advertising that continues to reappear every cycle. This year is no different.

But there are a few new approaches to these ads that may reflect larger trends in the politics of criminal justice.

In an era of prominent Republican support for reducing incarceration, for example, such attack ads can spark backlash. Last month, the Republican National Committee ran an ad explaining that when Democratic vice-presidential candidate Tim Kaine was a defense lawyer, he represented men who received the death penalty. As Virginia governor, the ad goes on, Kaine commuted a death sentence. Kaine “consistently protected the worst kinds of people,” the ad says.

The condemnation was swift. Kevin Burke, a former president of the American Judges Association, defended Kaine as a modern-day Atticus Finch and pointed out that the ranks of former death penalty defense lawyers include none other than U.S. Supreme Court Chief Justice John Roberts. Amid the criticism, the RNC deleted its own tweet, which had characterized the ad as “Willie-Horton style.”

Racial politics have shifted over time, too. The Horton ad was widely perceived as playing on racial anxieties, a perception that the new ads seem keen to avoid. “Most of these spots flinch when it comes to going for a pure fear appeal, à la Willie Horton,” says Robert Mann, a journalism professor at Louisiana State University who wrote a book on the 1964 “Daisy” ad. Mann noted that an attack ad about Democratic Connecticut state Sen. Mae Flexer — which criticizes her vote to repeal the state’s death penalty and support an early release program — “was careful to show several non-minority faces.” The attack on Kaine also features primarily white criminals.

This year, many ads in the Horton tradition focus on the subject of rape, perhaps in an attempt to appeal to women voters. In Houston, Texas, an ad accuses the incumbent district attorney, Republican Devon Anderson, of jailing a rape victim to ensure she would testify. Republican ads against North Carolina gubernatorial candidate Roy Cooper and Catherine Cortez Masto, who is running for a Senate seat from Nevada, accuse each of them of putting a low priority on testing rape kits and solving rape crimes in general.

Ads in North Carolina are targeting Deborah Ross, the Democratic challenger to Sen. Richard Burr, for her efforts on behalf of a 13-year-old named Andre Green, who was charged with sexually assaulting his 23-year-old neighbor while the victim’s toddler was in the room. In 1994, as an ACLU lobbyist, Ross advocated against placing Green in an adult court. “If Deborah Ross had her way, Green would be on our streets,” the ad says.

In response, Ross released her own ad attacking Burr for being soft on sex criminals. The ad points out that Burr voted against the Violence Against Women Act, which includes funding for rape crisis centers, and voted against funding the federal sex offender registry (in truth, his vote was against a much broader budget bill).

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Jonathan Davis, a partner at Northside Research + Consulting, an opposition research firm in New York, sees the trend as a tactical appeal to women in an election where their votes are not as predictable. Hillary Clinton “is poised to win a historic percentage of Republican women,” he says. “There is a large block of female voters in key states who know they're backing Clinton for president, but are still open to persuasion in down-ballot races.”

Some of those down-ballot candidates, including district attorney hopefuls in Florida and Colorado, are also trying different strategies with their advertising: they are using the language of criminal justice reform, calling for rehabilitation rather than prison for minor crimes. Colorado Democrat Beth McCann is running an ad featuring Francisco Gallardo, a former gang-member who now works with at-risk youth. In the ad, Gallardo says, "We need something that's more comprehensive, that's not just about building jails, but promoting the front end, building more empathy, more education, more opportunities...the reason Beth [McCann] can make those hard choices is she’s connected in the community."

But at the end of the day, despite these newer trends, the soft-on-crime attack endures. The best proof of its power is that even critics of mass incarceration are willing to use it. The most surprising Horton-esque attack this season comes from the suburbs of Denver, where a radio ad is targeting incumbent district attorney Peter Weir. The ad accuses Weir, a Republican, of signing off on a plea deal granting probation for Michael David Miller, a rapist with numerous alleged victims. (Weir told The Marshall Project that Miller’s crime would have been difficult to prove before a jury, and his office pursued Miller more aggressively than other jurisdictions where accusations were made.)

The ads were paid for by a political action committee linked to billionaire George Soros, who is actually trying to bolster the campaigns of reformers (Soros, through a spokesman, declined to comment). Soros’s chosen candidate, Jake Lilly, is running his own, separate ads promoting reform; he calls for treatment for people with addiction and mental health issues. Weir, the incumbent being attacked, is broadly in agreement; he has promoted the use of specialty courts to divert drug offenders from jail time.

Lilly spoke out against the Soros-funded ads that were designed to help him. “I don’t approve of the tone,” he told a local reporter. “I don’t approve of the negativity.”