Defense Lawyering in the Progressive Prosecution Era

Abstract

The movement to elect so-called progressive prosecutors is relatively new, but there is a robust literature analyzing it from a number of angles. Scholars consider how to define “progressive prosecution,” look at the movement through a racial justice lens, and examine it in the context of rural spaces, deportation, and the pandemic. One essay offers a “progressive prosecutor’s handbook.” But what about defense lawyers representing clients in progressive prosecution jurisdictions? If the new prosecutor follows through on campaign promises, things may shift from a highly-charged adversarial relationship with a carcerally-focused office to something quite different. Defenders in such jurisdictions face a number of complex decisions in both individual representation and systemic reform efforts in this new environment. Yet there is no defense lawyer’s handbook for practicing in the progressive prosecution era.

The core role of the defender—zealously seeking the best outcome to meet the client’s goals—does not change when a progressive prosecutor enters the picture. But the fact that the new prosecutor’s goals and policies are different shifts defender goalposts in significant ways. These shifts must be accounted for in assessing opportunities and challenges for defenders in these new situations. After examining criminal defense lawyering theory and regulation in actual practice, this Article discusses an existing typology of progressive prosecutors—from the “progressive who prosecutes” to the “anti-carceral prosecutor”—and then sketches out a typology of defense attorneys in progressive prosecution jurisdictions. Next, it examines an overarching concern for defenders, which is the progressive prosecutor who posits themself as the main reformer (and sometimes even transformer or hero) of the criminal legal system. This is a narrative that some progressive prosecutors seek to advance, and others do not disclaim. Defenders should not fight to claim this narrative as theirs, as they do not own it. But simply ignoring prosecutors who claim the reform mantle might negatively affect defenders’ relationships with clients, their families, and the communities they serve.

Consideration of the defender’s individual advocacy role in a progressive prosecution jurisdiction raises a number of questions, the most fundamental being: what changes might defenders make to get even better outcomes for clients? Although such changes could touch upon every phase of a criminal case, this Article focuses on opportunities and challenges for defense advocacy at the pre-charging and plea bargaining stages. Finally, the Article turns to the defender’s role in advocating for systemic change in the potentially (although not necessarily) receptive environment of a progressive prosecution jurisdiction. There are many reforms that defenders might advocate for in the mass criminalization era, with an eye on changes that survive the ephemeral and precarious position of the progressive prosecutor. The two examined here are defenders pushing progressive prosecutors to give up some of their own funding and support parity of funding for public defense, and challenging prosecutors to move beyond low-hanging fruit—like declining to prosecute minor misdemeanor cases—and take on reform in the realm of serious and violent offenses.

Keywords: Progressive prosecution, defense lawyers, public defenders, lawyering