By Frank Morris
The theory that correcting racial and other demographic disparities in the administration of criminal justice can be achieved by electing reformist prosecutors who promise to use their broad discretionary and nolle prosequi privileges to reduce incarceration—so-called “progressive prosecution”—has gained traction in recent years.[1] The election of progressive prosecutors such as Larry Krasner in Philadelphia, Kim Ogg in Houston, and Rachel Rollins in Boston seems to suggest that the movement is a viable solution to the problem of mass incarceration in the United States, especially of people of color.[2] But progressive prosecution is seriously flawed in at least two ways. First, because District Attorneys are elected, their success or failure depends largely on the capriciousness of the political process. Second, even the election of the most politically talented, popular, and progressive District Attorney does nothing to address the underlying procedural asymmetries between the state and defendants in the criminal justice system. The foxes are still guarding the hen house.
The recall of District Attorney Chesa Boudin in San Francisco this summer illustrates the political liability of progressive prosecution. In 2019, Boudin ran and won on an ambitious platform “Focusing on reducing recidivism rates rather than increasing incarceration rates.”[3] After two years of increasing rates of homicide, burglary, and motor vehicle theft, he was recalled by more than 20,000 votes.[4] Boudin’s recall is an example of the political pendulum effect; when efforts at reform are not quickly or demonstrably successful, voter preferences can swing back towards more traditional “tough on crime” platforms.[5] Defenders of the criminal justice status quo can point to the failure of progressive prosecutors like Boudin and tell voters that reform in general simply doesn’t work.
Of course, not all progressive prosecutors are recalled, and some, like Larry Krasner in Philadelphia and Marilyn Mosby in Baltimore, have won reelection.[6] But the basic assumption underlying the theory of progressive prosecution is that because prosecutors have near-unreviewable power to choose which cases to try and which ones to divert, the best solution to mitigate racial injustice is to elect “good people” to District Attorney’s offices.[7] While, in the case of Krasner, Mosby, and others, this approach has been successful, it is entirely contingent on the assumption that these “good people” will continue to win reelection and that others will follow their example. This is a naïve assumption.
Efforts to reform the structure of state power in the criminal justice system should reach beyond the election of progressive prosecutors. The ACLU, for example, has launched a campaign to reduce mass incarceration by lobbying for legislative reform and bringing civil suits against District Attorneys who abuse the powers of their offices.[8] Progressive prosecution has its place in the reformer’s toolbox, but it should be viewed with skepticism.
[1] The Facts on Progressive Prosecutors, The Center for American Progress (March 19, 2020) https://www.americanprogress.org/article/progressive-prosecutors-reforming-criminal-justice/.
[2] See The Paradox of Progressive Prosecution, 132 Harv. L. Rev. 738, 750 (2018).
[3] Ballotpedia (2022) https://ballotpedia.org/Chesa_Boudin.
[4]See Gregory Yee, San Francisco’s New D.A. Says She Can ‘Restore Order’ While Pressing Reform. Critics Aren’t So Sure, L.A. Times, July 9, 2022, https://www.latimes.com/california/story/2022-07-09/san-francisco-new-district-attorney-brooke-jenkins-criminal-justice-reform
[5]See Wendy N. Davis, Progressive Prosecutors are Encountering Pushback, ABA J., July 21, 2022 https://www.abajournal.com/web/article/progressive-prosecutor-pushback.
[6] Id.
[7] See Daniel Fryer, Race Reform and Progressive Prosecution 110 J. Crim. L. & Criminology 769, 776 (2020).
[8] See ACLU Launches New Initiative to Overhaul Prosecutorial Practices, ACLU, April 26, 2017 https://www.aclu.org/press-releases/aclu-launches-new-initiative-overhaul-prosecutorial-practices; See also Prosecutorial Reform, ACLU, 2022 https://www.aclu.org/issues/smart-justice/prosecutorial-reform