Some Modest Proposals for a Progressive Prosecutor

Abstract

The progressive prosecutor movement has spawned several races for District Attorney where candidates fight to claim the mantle of most progressive potential prosecutor. However, the promises made by self-described forward thinking, if not exactly radical, prosecutor candidates, as well as those made by newly elected District Attorneys, are at best the kind of reformist reforms criticized by many as having little impact on entrenched systems of oppression and as ultimately expanding their reach.It is incumbent on those looking for fundamental change in prosecutorial practices to try and assess whether any candidates are willing to take bolder steps than simply promising to prosecute more fairly and compassionately. Instead, the inquiry must be whether the candidate is willing to give up any aspects of the awesome power and the vast resources bestowed upon the office, particularly when it comes to the trial process.This Essay provides a list of proposals that a prosecutor truly bent on far-reaching change should adopt. Taken together, the proposals pave the way for abolition of the role of the prosecutor.

Prosecutors as punishers: A case study of Trump-era practices

“…Jurisdictions that include cities such as Philadelphia, Los Angeles, San Francisco, Chicago, Houston, Baltimore, Boston, and Brooklyn have elected reform-minded prosecutors who campaigned on promises to dramatically change how their offices use their discretionary powers, especially regarding charging decisions. While progressive prosecutors have faced significant internal and external backlash (Butler, 2022; Davis, 2019), they have had some direct impact in mitigating punishment in their jurisdictions (Mitchell et al, 2022), and they have had a modest impact in lobbying for state legislation aimed at reducing punitiveness (Hessick et al, forthcoming). Nonetheless, as a political force, prosecutors have largely fought any reform efforts that would reduce prosecutorial discretion (Degenshein, 2023; Hopwood, 2020), and those that would lessen maximum punishments or eliminate mandatory minimum punishments (Hopwood, 2020; Lynch, 2016), while continuing to lobby for more funding, fewer restraints on their power, and more severe punishments in the current reform era (Hessick et al, forthcoming; Hopwood, 2020).…”

How U.S. Voters Elect Prosecutors: Evidence from a Conjoint Experiment

“…Prosecutorial candidates' campaigns also began to emphasize candidate differences rather than focusing on the strength of each candidate's tough-on-crime stance. One visible change was the emergence of reform-oriented prosecutors bearing the "progressive" label and campaigning on using diversion and treatment programs as alternatives to incarceration (Davis 2019). As such, the visibility of prosecutorial election contests has increased in US counties over the past decade.…”

“…Since about 2010, the pattern seems to have changed. A group of reform-oriented prosecutors have steered their campaigns away from traditional law-and-order posturing by proposing restorative programs and by criticizing racial inequities in the criminal justice system (Davis 2019; Sklansky 2016; Wright, Yates and Hessick 2021). The emergence of issue-based campaigns and the victories of new-style prosecutors suggest that wide swaths of the voting public actually care about prosecutors’ policy stances.…”

Punishing Neighborhood “Outsiders”: Neighborhood Punishment Rates and the Spatial Mis(match) Between Defendants’ Residence and Arrest Locations

“…Additionally, prosecutors depend on neighborhood stereotypes to make case decisions (Frohmann, 1991(Frohmann, , 1997Herbert, 1997;Spohn et al, 2001). For example, while "race-neutral" stop-and-frisk policies led to disproportionally higher rates of stops and arrests for Black residents (Gelman et al, 2007), prosecutors have significant discretion at the charging and plea-bargaining stages that lead to downstream racial disparities (Davis, 2019). These policing/prosecution strategies have resulted in higher rates of arrest and incarceration in economically disadvantaged Black and Latino communities (Omori, 2017;Roberts, 2004).…”