Kevin Hayden was the narrow victor of a bitter primary election for Suffolk district attorney, a race so dominated by scandal and allegations that it eroded voter confidence in both candidates.
Now, as the presumptive winner in November without a Republican opponent, Hayden is poised to lay out his own agenda as the top prosecutor for the county. In the role of interim district attorney, Hayden inherited a reform-centered office charted by his predecessor, Rachael Rollins, and legal observers and community advocates are closely scrutinizing which direction he will take the office.
Appointed to fill the position after Rollins became US attorney for Massachusetts, Hayden revealed flashes of two different prosecutors in his first eight months: the progressive, reform-minded Hayden of the campaign trail, and a more traditional hard-liner suggested by several of his policy changes.
On the one hand, Hayden has expanded a program that redirects people struggling with substance use disorder from the courts to social services and created a pilot “restorative justice” program that tries to resolve some crimes through mediation, instead of harsh penalties.
But his short tenure has been marked by allegations that his office initially declined to prosecute a police coverup involving an MBTA officer who pulled a gun on an unarmed Black man during a traffic dispute while off-duty. Hayden was also criticized for firing the reform-focused head of the office’s juvenile unit and declining to embrace Rollins’s promise to decrease prosecution for certain nonviolent offenses — which many advocates consider central to a truly progressive office.
“It just has been a series of mixed signals,” said Nasser Eledroos, a former data analyst for the district attorney’s office who has publicly questioned Hayden’s vision for reform on social media. “He indicates a commitment to all of these things, but has in many ways tattered the relationships that support them.”
Two weeks ago, Hayden came under fire for terminating Michael Glennon, an assistant district attorney known for building and expanding the Juvenile Alternative Resolution program, which offers intensive, individualized services to young people accused of certain nonviolent crimes as an alternative to prosecution.
James Borghesani, a spokesman for Hayden, said in September that Glennon’s termination did not represent a reduced commitment to diversion “in any way.”
However, Borghesani also confirmed last week that there was a 15 percentage point decrease in the number of juveniles diverted to alternative programming this calendar year compared with last year. According to data compiled by the office’s juvenile unit and obtained by the Globe, the figures as of July 2022 mark the first time in years that more young people are being arraigned in court than diverted.
When asked about the decrease in September, Hayden said he was unaware more young people were being prosecuted.
“That’s the first time I’ve actually seen those numbers,” he said.
In a subsequent e-mail, Borghesani said a contributing factor in the increase could be the higher number of juveniles charged with firearm offenses, which are rarely diverted. But even accounting for the increase in gun cases, the percentage of diverted cases was still lower so far in 2022 than in previous years.
Hayden said that his commitment to juvenile diversion is unwavering and that he was exploring the possibility of expanding diversion to younger adults, between 18 and 25, charged with certain nonviolent crimes.
“I’ve spent my entire career focused on our children and on juvenile cases,” he said. “My commitment to diversion and alternatives to prosecution for our young people remains the same as it ever was.”
Hayden also said he plans to further expand the office’s Services Over Sentences program, which connects people struggling with mental illness and substance abuse disorder to treatment programs as an alternative to prosecution. In May, Hayden committed an additional $400,000 to the program, which started under Rollins, to target people arrested in Boston in the area known as Mass. and Cass, the center of the city’s opioid and homelessness epidemic.
After the expansion, the number of referrals to the program jumped from five during the first two years of the COVID-19 pandemic to nearly 30 in the past three months, officials said.
State Senator Lydia Edwards, an East Boston Democrat, voiced her support for the program when she endorsed Hayden in the primary. Edwards also applauded Hayden’s willingness to consider criminal charges, rather than civil penalties, against a Revere landlord who failed to compensate roughly 100 tenants displaced in a three-alarm fire. Revere condemned the building shortly after the fire for a series of outstanding code violations, calling it “unfit for human habitation.”
“That’s a big deal to find someone criminally negligent,” Edwards said. “It’s the first time I’ve had a DA look seriously at criminally pursuing a landlord who has hurt people.”
Edwards acknowledged, however, that Hayden is not “without areas of improvement.”
“The area where I feel like he needs to improve the most is in trust-building. There’s been a concern that the arc of criminal justice reform is going to be rolled back by him and he needs to step up,” she said. “He needs to (A) be totally transparent — good, bad, whatever — on data. And (B) he needs to make himself more present and readily available in all communities . . . especially those who are most concerned with how he’s going to define criminal justice reform.”
Several community activists have criticized Hayden for not maintaining Rollins’s policies, including an office requirement that attorneys get supervisor approval before prosecuting certain low-level nonviolent crimes. In an interview with GBH, Hayden disputed the results of a new research paper by three economists who studied more than a decade of Suffolk County cases and concluded that prosecuting defendants for nonviolent misdemeanor offenses causes significant harm without any evidence of public safety benefits. The final, peer-reviewed paper is slated to be published in Harvard’s Quarterly Journal of Economics early next year.
Hayden said that he believes such prosecutions should be reviewed on a case-by-case basis and that a blanket policy “takes the focus away from where it needs to be, which is on the human factor.” He suggested the criminal justice system could play a role in steering someone toward the help they need.
But Anna Harvey, a professor at New York University and lead author of the study, said the long-term harm caused by a criminal record eclipses the good provided by social services once the person is entangled in the justice system, particularly for first-time offenders. She said the research points to a need for diversion without the threat of a looming sentence.
Harvey said researchers had hoped to use independent funding to create a dashboard for prosecutors in Suffolk County to track the different outcomes of cases that are prosecuted or diverted. However, the partnership with the office was discontinued after Rollins’s departure.
Hayden stressed that he’s only just getting started with his vision for “forward-thinking, community-engaged” reform, such as expanding the office’s civil rights unit to target an uptick in hate crimes and updating the database started by Rollins that tracks police officers involved in misconduct to closely monitor their court testimony.
But for some activists, including Families for Justice as Healing nonprofit founder Andrea James, Hayden’s policy choices thus far have raised concern that the office will instead move back in time.
“You would imagine if you’re touting yourself as a progressive DA that you would . . . make sure to continue those policies that were deeply connected to what the community needs and wants,” James said. But “the only thing we’ve seen come out of this office under Hayden is more prosecution . . . so we don’t have any high hopes for this — we’re back to just trying to defend ourselves.”
This story was updated to correct the figure for the change in juveniles diverted to alternative programming in 2022.