Name: Ben Scales
Profession: Attorney
In up to two words, describe your political affiliation: Democrat
In one brief sentence, describe yourself and why you’re running: I’m running because I believe that true progressive criminal justice reform can heal, empower and unite our community.
General questions
These questions are about problems, challenges or topics facing the district attorney’s office and how you will try to deal with them if elected.
1) Based on your experience, do you trust the Asheville Police Department and the Buncombe County Sheriff’s office?
This is the hardest question in this questionnaire to answer. On the one hand, a candidate for District Attorney must answer “yes,” because the DA must trust the law enforcement agencies who present cases for prosecution, and those agencies must trust the DA, as well. On the other hand, blind trust in either of these agencies can lead to bad results, such as what we’ve seen in the Johnnie Rush case.
In my experience, no one from either APD or the BCSO has ever been untruthful with me, personally. But in 2010, I had a case where the physical evidence presented in court did not match either the police report or my client’s description of what the APD officers claimed to have found on the floorboard of his truck. The marijuana the officers brought to court was a fairly large bud weighing about 1 gram. The police report alleged the marijuana weighed 0.2g. My client described it as so small that he thought it was a juniper bud. My client was convicted anyway, despite my protestations that the evidence didn’t match the police report. The next year, a major scandal broke, which revealed that the APD evidence room was in disarray, with missing evidence, shoddy record keeping and other significant problems. In the meantime, my client was given deferred prosecution and had his charges expunged.
That incident taught me that thorough oversight is necessary to ensure that the trust the DA must have in law enforcement is not misplaced. Individual officers must be assumed trustworthy unless and until evidence otherwise appears. When evidence of untruthfulness appears, the DA must act to halt prosecutions using the compromised officer and must advise all defendants and their lawyers regarding cases on which that officer’s testimony was our would be relied upon to prosecute the case.
2) What do you believe are the most important changes that need to be made to the way the District Attorney’s office operates?
Leadership – The incumbent’s mishandling of the Johnnie Rush case underscores his failings as a leader. His shifting explanations for his delay in filing charges against Chris Hickman seemed to have settled upon blaming APD for everything. A true leader owns his mistakes.
Transparency – Currently, no one has any idea what is going on in the DA’s office. I will remedy that by implementing an open data portal, documenting each key phase in a case’s movement through the system, so cases, defendants, and charges can be followed through the system.
Trust – I will restore the trust and the relationships between the DA’s Office, the courts, law enforcement and the community, all of which have broken down in various ways over the past four years. Mr. Williams has alienated the law enforcement community in his first campaign, and his relationship with the hard-working men and women who protect and serve us has only gotten worse over the past 3½ years. He has publicly feuded with judges in the media and has engaged in ad hominem attacks against members of the defense bar. His Chief Assistant was recently caught lying to the court and suffered no consequence.
Priorities – I will target the crimes that matter the most and stop prosecuting insignificant cases. Too many resources are being used to prosecute minor property crimes and minor drug offenses, often related to addiction. On the other hand, those who commit violent crimes against any of us must feel the full consequence of their actions.
Environment – Polluters large and small threaten our communities by illegally dumping waste onour streets and on private property as well as into our waterways, and by poisoning our air. I will protect our environment and our children’s health by prosecuting dumpers and other polluters to the full extent of the law.
3) Trans and non-binary people, especially trans and non-binary people of color, have traditionally faced discriminatory treatment from district attorneys’ offices around the country, both in their treatment as defendants and in prosecutors not taking attacks against them and their communities seriously. What ways will you work to change that?
This question raises a deeply personal issue with me. As many who are close to our family know, our 18-year- old son Aeron is transgender. When I saw this question, I asked him if he wanted to help me with my response, and this is what he wrote:
I don’t have anything specific to say, other than that you are more
supportive than I could ever have hoped for. You care about
making sure I’m comfortable and happy and safe, and you’ve been
engaged with LGBT+ issues in the national and local spheres since
I came out (maybe before and I didn’t notice it, but definitely
afterwards). You’re an excellent ally.
Good luck.
Love,Aeron
I believe I have a full and complete understanding of many of the challenges facing trans and non-binary people, and I will be vigilant in guarding their rights as if they were my family, which they are.
4) Mass incarceration is a serious problem that overwhelmingly impacts marginalized communities. What approaches to prosecution, programs and plea deals do you believe are necessary to change this?
Recent research indicates that the primary driver of mass incarceration is prosecutorial discretion. Most criminal cases are resolved through plea bargains. Prosecutors use their superior bargaining power to put pressure on defendants to accept plea deals, which contribute to high incarceration rates. Therefore, any reform intended to make a meaningful reduction incarceration rates must come through prosecutorial reform.
In regards to plea offers, my policy will be as follows: Except in homicides, violent crimes, sexual assault, gun law violations, economic crimes of $50K or over, or cases involving attacks on the integrity of judicial process, the following guidelines will be followed: 1. All plea offers will be at or below the bottom end of the mitigated sentencing range for most crimes; 2. If an ADA believes that such an offer would be too low for a specific case, supervisory approval will be required to make a higher offer; 3. Where the applicable range is less than 24 months, ADAs should seek house arrest, electronic monitoring, probationary or other community-based punishments in appropriate cases.
Another step will be to implement an early intervention program, for recently arrested defendants. Each defendant will given an short assessment, which will be compared to the information on the rap sheet and in the police report. A low score can lead to an offer of diversion, that, if successfully completed, leaves the individual without a criminal record. A high score leads to a second, more detailed assessment. Results of this second assessment may also lead to diversion or may lead to a more intensive kind of post-arrest supervision, known as deferred prosecution. People in this group will maintain an arrest record but may have their charges reduced or dismissed. The goal will be to get people back on track, based on their risk and their need.
5) Buncombe County in particular has a serious domestic violence problem. What do you believe is the best approach to fighting this threat?
The goals of any prosecutor policies or activities in response to domestic violence should be: (1) to protect the victim, (2) to deter the defendant from further violent acts by holding him accountable for his actions, and (3) to communicate to the community that domestic violence will not be tolerated. Prosecutors should always ask the question in domestic violence cases, even those with low level injuries, “Could this end up a homicide?” One important step is to make misdemeanors matter. We must realize that true success is not prosecuting a murderer, it is preventing the murder. It is not locking up offenders for decades, it is stopping the violence so that escalating violence does not require prison beds for most domestic violence offenders.
My domestic violence team will consist of not only attorneys but other important personnel as well—advocates who work with victims, investigators, and medical personnel.
I will also have a policy that provide for prosecution of cases without the victim, if there is sufficient independent evidence. This strategy, sometimes referred to as an “absent victim” policy, takes the prosecution burden off the victim and places it in the hands of the state. An absent victim policy sends the message to the offender and the community that the state sees domestic violence cases as a community priority. An important goal of this policy is to eliminate the incentive for batterers to threaten victims with further violence if they pursue prosecution. This will help to insulate the victim from the batterer’s anger, retaliation, and coercion to drop charges while simultaneously recognizing the fact that the victims face a multitude of competing survival necessities that may lead them to believe that having the criminal case dismissed is ultimately in their interest.
Yes/No questions
These questions are about specific decisions or positions. The first word of each answer must be Yes or No. An explanation of one’s position — or an alternative proposal — may follow.
6) Do you favor prosecuting pharmaceutical companies and associated businesses who played a role in the opioid epidemic as a way to combat that problem?
Yes. The problems of over-prescription and lack of oversight continue to result in poisonous drugs being sold into our County and addicting our residents. The focus on street-level dealing is making the problem worse. As DA, I will pursue action, based in part on state unfair trade practices and consumer protection laws, and in parallel with the County’s suit against several pharmaceutical companies, to stop these companies from systematically distracting the public from knowing the true dangers of opioid use as they reap billions of dollars in profits.
7) Do you support policies, such as District Attorney Larry Krasner has introduced in Philadelphia, to reduce the criminalization of sex workers?
Yes. Those charges would be given lowest priority in my office.
8) Will you decline to pursue marijuana possession charges in all cases where more serious or violent criminal offenses are not also present?
Yes. Personal-use possession and cultivation of cannabis will not be prosecuted, unless the complaining witness is someone other than law enforcement. If it’s for your personal use, and it’s not bothering anyone else, it’s no one else’s business.
My commitment to medical cannabis law reform is well documented. I’m the author of the NC Medical Cannabis Act, proposed legislation which has been introduced many times over the past 8 years by Rep. Kelly Alexander, Sen. Terry Van Duyn and others. I’m also a co-founder of the North Carolina Cannabis Patients Network, with the late Jean Marlowe. Medical cannabis law reform is an issue near and dear to my heart. To that end, I will not prosecute any caregivers providing cannabis to patients using cannabis therapy under appropriate medical supervision.
9) Will you commit to ensuring that 15 percent of assistant district attorneys are African-American by 2021?
Yes. I’m hoping that percentage is considerably higher. The racial makeup of the DA’s office should mirror that of the community, and currently, it doesn’t.
10) Do you believe that Buncombe County should end the practice of cash bail?
Yes. The cash bail system is a significant part of the “guilty until proven wealthy” mindset that I will change when I’m DA. It unfairly burdens poor defendants and their families, and does nothing to protect public safety. Indigent defendants held in pretrial detention often plead guilty because they want that pressure of incarceration off of them. A desperate guilty plea could affect a person for the rest of his or her life. Families are often forced to choose between paying an exorbitant non-refundable fee to a private bond company or leaving their loved one, who has not been convicted of the crime with which they are charged, in jail.
I will work to end the practice of cash bail in Buncombe County by working with the judges and magistrates to eliminate the rigid use of bond schedules and shift instead to an evidence-based approach. I will bring motions and join in defense motions to reduce and/or unsecure bonds for persons accused of non-violent offenses, and other cases where it is clear that the accused is neither a flight risk nor a danger to public safety.