This Ex-Republican Running for D.A. Wants Cash Bail to Be Abolished

Michael Untermeyer | Photo courtesy of Untermeyer’s campaign.

Michael Untermeyer is complicated.

Back in 2009 and 2011, he ran for local office as a Republican. Today, he’s campaigning for district attorney as a Democrat. “The difference between the Democratic Party and the Republican Party is the Democratic Party really wants government to serve people, which is why I am a Democrat,” he says. “The Republican Party doesn’t want to have government, period.”

Untermeyer’s platform includes a lot of things liberals like: The former prosecutor opposes the death penalty in most cases, vows to keep almost all drug users out of the criminal justice system, and wants cash bail to be abolished. But in this hyper-partisan era, the fact that Untermeyer once flew the GOP’s flag — and told Philly.com that “only a Democrat can win this office” — could turn off some Democratic voters. His past experience working in the civil asset forfeiture unit of the attorney general’s office may also prove a challenge in his quest to become district attorney.

Untermeyer recently sat down with Philly Mag for an interview at his law office in Society Hill. The conversation has been edited and condensed for clarity. Read our Q&As with the other D.A. candidates in the May 16th election here.

Michael Untermeyer’s Platform at a Glance

• Death penalty: Opposes it except in the “most heinous” crimes, such as the Boston Marathon bombing and premeditated shootings of police officers.
• Civil asset forfeiture: The local D.A.’s office has used it to be “purely punitive”: “It was just to hurt people and bring in money.”
• Cash bail: Wants it to be abolished completely and replaced with a “points” system.
• Gifts: He wouldn’t accept gifts as D.A.
• Super PACs: “I don’t want super PAC money.”
• On how to fight crime: Go after narcotics organizations, do a better job of prosecuting illegal gun purchases, support a “community-based approach” to reducing crime.
• On whether bad cops are sufficiently held accountable: “We can do things better to create more trust in the system.”

Why are you running for district attorney?
I’m running for D.A. because I want to be an advocate for every Philadelphian in the criminal justice system. I have worked as a prosecutor for 15 years. I’m at a point in my career now where I really want to give back and serve. This isn’t a stepping stone for me. I don’t need a job. I love Philadelphia. I’ve been here for 30 years. I think I have the best skills, the best experience, and complete integrity. The District Attorney’s office is a law office. People don’t view it that way — they view it as a government agency. To run it as a law office, you need a combination of working as a lawyer and running a business. The difference with the D.A.’s office is the mission isn’t to make money. The mission is to really provide criminal justice and equity and fairness for every Philadelphian.

Public service was always really important to me. When I was 18 years old, my first job was working in Harlem driving an ambulance. I was the youngest ambulance driver ever in the city of New York. It was a job I loved. When I left college, I went back and I did it for a year before I went to law school. After law school, I worked in the New York City law department in the torts division as a lawyer. When we had a mortgage crisis in Philadelphia, I volunteered as a judge pro tem helping Judge Anne Rizzo with the mortgage-modification program. When Katrina happened, I was already trained as a disaster worker for the Red Cross and went down there for two weeks. Locally, there is a special services district called the South Street Headhouse District, which I was involved in during the last seven years and which I co-chaired for two years. I really want to do the D.A.’s job to serve every Philadelphian.

What are the biggest accomplishments of your career, in your opinion?
I was in the D.A.’s office for four years. Ed Rendell hired me, and he started what was then the new domestic violence unit. Most lawyers in the office wanted to stay as far away from that unit as they could. I volunteered to do it because I thought it was my opportunity to really serve as an advocate for victims of crime. I was one of the first three lawyers to be assigned to that unit. That was one of my best accomplishments — getting in that unit and really just serving people, mostly women, but occasionally men, who were the subjects of often horrific assaults and rapes.

When I went into the D.A.’s office, my view of being an assistant district attorney was being an advocate for victims of crimes. I’ve broadened that thought process. Now, I really think that in the District Attorney’s office, you’re an advocate for fairness and equity.

You ran as a Republican for City Council in 2011, and as a Republican for district attorney in 2009. Why did you switch your party registration to Democrat in 2014?
I started as a Democrat. I ran for sheriff 10 years ago as Democrat against John Green on a simple and pure anti-corruption campaign. I got 60,000 votes. At the time of the 2009 election for district attorney, I was involved in actually taking care of my dad, and it became too late to run as a Democrat. And I said to myself, “I have great ideas. I want to get those ideas out there.” I considered myself to be a reformer, and I considered the District Attorney’s office to be what should be the least partisan of any political office. So I decided to run as a Republican.

The difference between the Democratic Party and the Republican Party is the Democratic Party really wants government to serve people, which is why I am a Democrat. The Republican Party doesn’t want to have government, period.

Who did you vote for this November?
I did not vote for Trump. I voted for Hillary Clinton.

Years ago, you supervised the asset forfeiture unit in one of the attorney general’s regional offices. What’s your position on civil asset forfeiture?
First of all, I’m really proud of the fact that when I was in the Attorney General’s office, we had a policy that was one of fairness and equity, which was not followed in the District Attorney’s office. I would often go to court and see the D.A.’s office bringing in these forfeiture cases for $50, $75, $80. It was purely punitive. It was just to hurt people and bring in money. One of the problems about civil forfeiture is that the statute is written in such a way that the money goes to either the Attorney General’s office or the District Attorney’s office. Civil forfeiture can and has been abused. As district attorney, I would use it as a tool when someone really has proceeds from their drug-dealing or are using facilities — whether it’s real estate or vehicles — to really to conduct their drug business. Those assets should be seized and forfeited.

It shouldn’t be used just simply to punish people — the classic case being where you’ve got a mother whose son or nephew is dealing drugs out of the house and she has no idea what’s happening, and they go and they seize and forfeit her house. They put her on the street. That is not what the law is supposed to do. It is an unfair result. I would never allow that to happen. In the Attorney General’s office, we didn’t do that. We wouldn’t just take a house to punish somebody. We’d take a house because it was really used in the drug business.

Critics of civil asset forfeiture say there shouldn’t be a financial incentive for the D.A.’s office to seize homes or money, and that any assets should go to the city’s general fund or the school district. Should the assets go to a different place?
Yes. I would change where the money goes. To a great extent, it should be used for the community. But there’s also the reality that drug investigations are sometimes very expensive. Now, the Attorney General’s office did narcotics investigations. We had a different mission than the District Attorney’s office: They went after individual drug dealers. We focused on organizations, and we did long-term investigations that required a great deal of resources. Forfeiture monies allowed us to do that work. So it’s one thing to try and use forfeiture to basically make a profit. It’s another thing to legitimately use the proceeds of civil forfeiture to help with what you do.

Let’s say the D.A.’s office spends $50,000 in an investigation, and there’s $100,000 forfeited. They should be entitled to apply to have their expenses reimbursed. Maybe it should go to an independent board to decide where forfeited funds go. Maybe that would be a fairer way go. Again, you shouldn’t be using forfeiture money to punish people for insignificant amount of narcotics.

Another critique of civil asset forfeiture is that people’s assets can be seized even if they aren’t found guilty of a crime. Should a conviction be required before assets are taken?
When I was in the Attorney General’s office, we had a case involving the Pennsylvania state police. They did a traffic stop of somebody who left Philadelphia International Airport on their way to Allentown, and they asked permission to look in the trunk of the vehicle. And in the trunk, they found $500,000 in cash. The money tested positive for drugs. The individuals were from Colombia, and they had this story that the money was the result of selling cows in Colombia. And they came up with a contract in Spanish saying that’s where the money came from. It was simply not a credible story. There were no drugs found.

The Attorney General’s office, and I was a lawyer, brought the case to forfeit the money. There’s no question in my mind that was drug money. There is no conviction hearing. To be able to let them keep that money would be an unfair, inequitable result. So I don’t think you can have a hard-and-fast rule in terms of requiring there to be a criminal conviction, necessarily, to keep the money. I think you have to use discretion. You have to come from a place of fairness in your heart. We have a real problem with narcotics and narcotics organizations, and I think we have a responsibility to try and close down those organizations.

How has District Attorney Seth Williams done on the job?
What’s happened to Seth is really sad and disappointing. In my campaign, I’m not going to be bashing Seth. I have really great ideas. Most of them are unoriginal. I’m going around the country searching for the best ideas, whether it’s in High Point, North Carolina, where they have a program that has been very effective in closing the open-air drug markets and has reduced crime in markets by 60 percent, or in Boston, where they’ve had a program to take guns off the streets. My campaign is going to be based on really positive, progressive ideas where I can really serve every Philadelphian every day.

I want to ask you about a few high-profile decisions that Williams made. Last year, he decided to pass on to the Attorney General’s office an investigation that involved an alleged assault by labor leader John Dougherty. Was that the right call?
The reason why he kicked that case up was because he felt that that his office could not be, I guess, an advocate in a case against John Dougherty. I think he should never have been in a position in the first place where, because he’d taken whatever he’d taken from labor in terms of money, he felt he couldn’t prosecute a case. It sends a terrible message that if you contribute enough money to the district attorney, then that district attorney is no longer impartial and can no longer prosecute a case. I think the district attorney should be in a position where he can prosecute any case in Philadelphia.

Does that mean you won’t take campaign contributions from certain organizations?
Yes. One of the positions that I’m taking is that I’m not taking any contributions from criminal defense lawyers. And secondly, when elected district attorney, I would take no gifts from anyone. I don’t need this job. I really want to do this job and be an advocate for Philadelphia, and to start taking gifts is just so wrong, whether it’s $100 or $175,000.

What about campaign dollars from labor groups, since that’s what you referenced earlier? Would you put a restriction on that?
I’m not taking any donations from John Dougherty. But it’s not black and white, because not only is the issue about financial contributions, but it’s also the issue of other kinds of contributions. Labor can help you get petitions and get out the vote. Labor is very important in this city. So to say that I will not have labor support me would not to be honest. But to be influenced by labor in making decisions, I think, is completely wrong.

We’ll talk about the FOP and the police department, for example. One of the things that is very difficult is, if I’m a prosecutor and you’re a police officer and we work together, day in and day out, and then let’s say you’re charged with a crime — drunk driving. For me then to turn around and say, “OK, I now have to prosecute you because you’ve allegedly committed a drunk driving violation,” I think it’s difficult. It’s not possible to do.

So I think there should be one of two ways of dealing with crimes that are allegedly committed by police officers. Either there should be a walled-off separate unit in the District Attorney’s office with one, two, or three district attorneys whose only job is to handle cases of investigation and the prosecution of police officers. And they are literally physically walled off, maybe even in another building, from the other assistant district attorneys. The other alternative is the Attorney General’s office can take those cases.

When Lynne Abraham was district attorney, it was her policy to refer basically all cases involving elected officials to the Attorney General’s office or federal authorities. What’s your position on that?
They should kick everything up to the Attorney General’s office because you want to be able to be objective. It’s too close of a relationship. Elected officials work together all the time. District attorneys work with controllers, mayors, City Council. To have to be able to prosecute somebody when they allegedly commit a crime, I think it’s too difficult to do. You’re damned if you do, damned if you don’t. Best to have the Attorney General’s office do it.

Another controversial decision that D.A. Williams made was to retain three of his prosecutors who were ensnared in the Porngate scandal. Was that the right call?
They never should have been hired in the first place, and they shouldn’t have been kept on. The fact that Seth Williams was aware of the pornographic, racist e-mails that they were involved in sending or receiving was enough.

What’s your position on the LeSean McCoy case? Williams decided not to press charges against him for his role in an alleged bar fight involving two off-duty cops.
Again, it’s another simple example of where Seth put himself in a position where he couldn’t be objective. He goes to all the Eagles games, he has the best standing-room position in the Eagles games, and then he’s put in a position where he’s going to make decisions. He shouldn’t be there. He shouldn’t have taken the gift [of Eagles passes]. If he hadn’t, he could have made a decision and presumably it would have been a fair decision.

You’ve said in the campaign that you think the city’s cash bail system should be reformed. How?
I think Philadelphia has the worst bail system in my country. First of all, last year, the city wrote off almost $1 billion in bail money that was owed to the city by individuals on the basis of it being uncollectible. Our city is desperate for money. Look at the soda tax. We just don’t have money to run the city. We could have given that $1 billion in bail money to a collection agency. They’d have given us 1 or 2 percent. If you were a defendant and you owed $1,000, if you gave five cents to the dollar to the city, it would have helped the city pay its bills. Two, we have a system in which 35 percent of defendants that are on bail fail to appeal in court. Three, we have 65,000 people on bench warrant status in Philadelphia — 65,000 people walking the streets who are wanted to be in court. And the system we have today is discriminatory. It’s based on money. If I’m a successful burglar and I’m caught, bail is set and I come up with the money. I’ll be on the street doing what I want to do. If I can’t come up with a few hundred dollars for a misdemeanor, I can sit in custody for months until I’m on trial.

I want to revamp the entire system. What I want to do as district attorney is find best models in the country and bring them back to Philadelphia in the courtroom. I think the best bail system in the country is in Washington, D.C. There is no cash bail for anyone. When an individual is arrested, there is a point system that determines the individual’s risk of flight to the community, risk of danger to the community, and prior criminal history. If they’re above a certain point score, they are kept in custody. They have a trial. If they’re below a certain point score, they are released conditionally. The conditions may involve wearing an electronic monitor. It may involve drug treatment. It may involve job training. There are multiple programs, but the bottom line is the failure-to-appear rate in Washington, D.C. is 11 percent. The failure-to-appear rate in Philadelphia is 35 percent. It doesn’t matter if you have a lot of money or no money.

How would you deal with the loss in funds for the justice system that could result if cash bail was eliminated?
You’re going to make up for the loss because you’re going to have a lot of people no longer in prison custody, costing $125 to $180 a day. They’ll be out unconditionally, so there’ll be more than enough cost savings to offset the money. And by the way, when we have money that’s owed because the bail order’s out, we don’t seem to collect it!

The district attorney is an advocate; he’s not a judge. But the district attorney has a lot of influence, and if the district attorney says at a bail hearing, which is usually before a bail commissioner or a judge, “I don’t want to have cash bail, I want a conditional release,” I think the bail commissioner will go along with it. On the other hand, if they disagree, the D.A. can take it and appeal.

How do you think the conviction review unit, aimed at investigating potentially wrongful convictions, has done under D.A. Williams? Would you make any changes to it?
A district attorney can only be effective in serving the community as much as they are trusted by those citizens. Unfortunately, the Philadelphia District Attorney’s office has a long way to go in restoring that trust. Conviction integrity is a key part of how that trust has been broken. Philadelphian Anthony Wright spent 25 years in jail for a crime DNA evidence later proved him to be innocence of. The D.A. office failed to take sufficient action once he was proved innocent, and fought his release.

This process is unacceptable. The district attorney must represent the public trust, and every effort must be pursued to ensure that innocent Philadelphians are not kept behind bars. The current district attorney has announced plans to strengthen this unit, but we need to ensure that these reforms are real. To prevent future Anthony Wrights from ever happening again, I will strengthen a conviction integrity unit modeled on the review board created by the Brooklyn district attorney’s office. This unit will have the responsibility of examining convictions in which questions exist as to the veracity and validity of convictions, especially in cases in which civil rights may have been violated. This unit will operate with independence and a free hand from internal or external political pressures that could inhibit its ability to uncover the truth.

Wrongful convictions not only affect those who spend time in prison for a crime they did not commit — they undermine the integrity of our criminal justice system. With an adequately staffed conviction integrity unit, we’ll make sure Philadelphians are not kept behind bars for crimes they did not commit.

Are you seeking support from the Fraternal Order of Police?
Police officers put their lives on the line every day in our communities to keep us safe. We need a D.A. with new ideas and a fresh approach that can work with law enforcement and community leaders to move us forward. I welcome the support of any group that wants to take a fresh approach to fairness in criminal justice in this city and works to keep our city safe.

What is your plan to fight violent crime and homicides?
I think one of the most important parts of the District Attorney’s office is bringing leaders together in our community and law enforcement to listen and create solutions. We need a community-based approach to tackling gun violence. We can work to better prosecute homicides and go after large narcotics organizations that breed violence. We can prosecute illegal handguns in a much tougher way. That’s much easier to do when you have community leaders involved and working across departments and organizations to prevent crime.

Additionally, I have been very disheartened with the lack of reforms to tackle gun violence coming from Harrisburg and Washington. We need leaders who will effectively lobby to make our streets safer and take on the gun violence epidemic.

Black Lives Matter argues that bad cops aren’t held accountable enough under the current justice system. Do you agree with that? Do you think that Seth Williams has done a good job of prosecuting police officers that have broken the law?
The overwhelming majority of Philadelphia police and law enforcement officers are dedicated professionals who are invaluable partners to the District Attorney’s office. They put their lives on the line every single day to keep us safe. That’s why we owe it to them and every Philadelphian to hold the small minority of cops who commit misconduct accountable in order to maintain community trust and foster an environment in which police can do their jobs creating safe neighborhoods capably and effectively. We can do things better to create more trust in the system. That means removing prosecutions of law enforcement officers from normal workflow of D.A.’s office and publishing clear statistics on policing methods and outcomes.

Are there racial disparities in charging and sentencing in Philadelphia? If so, how would you address that?
Yes, there is. There have been studies that have said there is a racial disparity in sentencing. I don’t today have the answer for how to change it. It’s a very difficult and challenging problem. You have to look at the whole system really from beginning to end, and you have to find a solution.

What is your position on the death penalty?
I am against the death penalty except in what I consider the most heinous crimes, such as the Boston Marathon bombing and premeditated shootings of police officers. But as a policy, I don’t think the death penalty really serves as a deterrent to people doing horrific crimes. I just don’t think it really works. And as a practical matter, rarely has the death penalty really been imposed. It ties up the courts with legal appeals for years. So unless it’s an extraordinary case, it’s just an unfair result and I don’t believe in it.

Is there a policy you’d have that would determine when you’d ask for the death penalty?
It would be determined on a case-by-case basis. It doesn’t happen that often.

Philadelphia is experiencing an epidemic of opioid overdoses. How would you address that issue?
The district attorney has a very important role in that. On one end, we’re seeing 900 deaths of people taking heroin laced with fentanyl. There is a statute in Pennsylvania that says that if one delivers drugs resulting in death, it’s homicide. It’s up to a 40-year term of imprisonment. We don’t charge that in Philadelphia. In 2016, there were two cases brought. In 2015, there were no cases brought in Philadelphia. In 2016, there were 54 cases brought in the state. It’s difficult case to prove because you have to show the connection between the person delivering the drugs and the drugs that were the cause of the death. But that’s one tool that I would use at the end.

At the beginning, it’s not a simple question. What happens is people go to physicians, and they’re in pain for whatever cause, and physicians issue opioids — sometimes for 30 days, for 45 days. During that period of time, people get addicted. People go back to the physicians and try and get prescriptions renewed. Physicians at some point stop renewing the prescriptions, and then you go out in the street to try and buy it, and it costs $40, $50 a pill, whereas a fix of heroin costs $5 to $10. So you take the heroin, and you go from being addicted to opioids to being addicted to heroin. So how do you solve that problem? You solve the problem by going back to the source, where the physicians are, and either by law or by policy persuading the physicians not to give 30-day prescriptions at all, but to give seven-day prescriptions. You really work with physicians, where they’re not motivated to have good ratings on the Internet and have their patients happy, but they’re motivated really to stop prescribing the drug.

Do you believe the War on Drugs has been successful or not?
I worked in the War on Drugs for 11 years. When I was first appointed to deputy attorney general, Ernie Preate was the attorney general. He had just obtained an approval for millions of dollars in his budget for fighting narcotics. That was used to hire about 10 lawyers, and he built up a Bureau of Narcotics Investigation in the office. Before he was attorney general, there were maybe 20 or 30 BNI agents in the state. With the money he obtained, he built up a force of about 200 BNI agents who worked with local police, state police, the DEA, the FBI, and the Postal Service to fight the War on Drugs. We had a lot of success in bringing down drug organizations, but unfortunately when we’d bring down one organization, another would come and take its place. So it’s very difficult. Over 11 years, there was no reduction in the workload of any agents or prosecutors working in that office. So I think we have to basically continue the drug war.

Is there anything that can be done to make that workload smaller?
What we did, which was innovative at the time, is financial investigations and prosecutions. We tried to go after not only the dealers, but people who worked with the dealers in terms of laundering the money. Imagine a business where there is unlimited demand for your product and unlimited product. There is no other business like it. I remember one of the first cases I was handling where we were dealing with a major marijuana dealer. He would bring the marijuana up from Texas where he’d buy it. This is going back 20 years. He’d buy the marijuana at $500 a pound, and he’d sell it for $1,500 a pound in Philadelphia. In a half-ton pickup truck that can carry 1,000 pounds, that’s a $1 million profit for just one load of marijuana.

It’s very difficult to really to stop a business, so what you have to do is try and change people’s lives — give them hope, give them education. Because so many people do drugs because they have so little in life. It’s a way of escaping and having some joy and some pleasure. How you can really win the drug war isn’t just by fighting the drug war. It’s by fighting things like poverty and lack of education.

You’ve talked a lot about drug dealers. What should the district attorney do with respect to drug users?
I said earlier I want to follow the best models in the country and bring them to Philadelphia. I think what’s being done in Philadelphia is not really smart. If you are a low-level drug offender — that means possession or possession with intent to deliver — you can get arrested, go through the whole system, go to drug court, and then you’re maybe put you in a program. I want to do what they do in Seattle, Washington. It’s a program that’s been copied all over the country. It’s called the “Law Enforcement Assisted Diversion” program. If you’re a low-level drug offender, you are arrested by the police and then you are given a choice: They say you can go through the criminal justice system, or we’re going to put you in a program today. We’re going to drive you to that program, where you’re going to be assigned a social worker and given whatever help you need with housing and your drug problem. And you’re not even going to go into the system. Now there is criteria. If you’ve got a criminal history, they look at it. But it’s been an extraordinarily effective program. It saves a lot of dollars and it treats the problem as a health problem and not as a criminal problem, which is what I believe should be done.

What’s your view on super PACs? Should they be involved in the D.A.’s race?
I don’t want super PAC money, because let’s say the super PAC comes from an organization of criminal defense lawyers. As I’ve said, I don’t want to take money from criminal defense lawyers. And you don’t even know who the money’s coming from. So no, I don’t think they should be allowed to contribute to a race such as a district attorney’s race.

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