Transforming the Progressive Prosecutor Movement
65 Pages Posted: 3 Dec 2020 Last revised: 27 Mar 2021
Date Written: May 22, 2020
It is a near universally accepted principle that prosecutors are the most powerful actors in the criminal system. In response, a new movement has emerged: its proponents argue that, by electing progressive district attorneys, we can use the power of prosecutors to end mass incarceration and bring fairness to the criminal system without changing a single law. They propose to accomplish these goals primarily by declining to prosecute certain low-level crimes, expanding diversion programs, and replacing hardline assistants with reform-minded outsiders. Academics, activists, presidential candidates, and even a Supreme Court Justice have endorsed this movement as the key to change. With little sustained scrutiny of this development, this Article takes the progressive prosecutor movement’s objectives as they are and asks whether, as currently framed, it is likely to achieve them. The conclusion is simple: no.
This movement acknowledges the “breathtaking” power that prosecutors yield, then asks its candidates to use that power for good and trusts them to do so. This Article offers a more efficacious prescription: if you are a prosecutor truly committed to transforming the criminal system, relinquish your power. Do not trade the rhetorical appeal of being tough on violent crime for political capital to spend on lenience for those who commit low-level offenses. Advocate for the reallocation of funds from prosecutors’ offices—rather than the expansion of diversion programs—to social services to keep the mentally ill, substance-addicted, and poor out of the criminal system. Rather than hoping to prevent wrongful convictions and over-punitiveness by changing who works in your office, lobby for a stronger indigent defense system and more external limits on prosecutorial power. To combat racial inequities in the criminal system, support efforts to strengthen defendants’ equal protection rights, instead of simply publishing statistics. Through these shifts, we can harness this moment where criminal justice reform tops the national agenda and implement truly transformative change.
Keywords: progressive prosecutor, defund, criminal justice reform
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