Written By Alexi Berges L’27
Introduction
The United States has the highest rate of incarceration in the world with roughly 2.2 million people in jail or prison.[1] This has left thousands of Americans inside prisons where they are unable to contribute to the economy or society at large.[2] Offenders in state prison specifically, take up about 90% of the incarcerated population, all of which have been prosecuted by local prosecutors.[3] In our criminal justice system, prosecutors arguably have the most power.[4] They have the ability to decide what crimes to prosecute, what to charge and how many charges to file, whether to make a plea, and what sentence to suggest.[5] With this power, comes the ability to make great change within the system. These changes– combatting discriminatory policing, limiting or getting rid of cash bail, and rolling back practices that have led to mass incarceration– fall under the umbrella of progressive prosecution, a movement toward decreasing the prison and jail population by addressing crime through community services rather than incarceration.[6] However, prosecutors are often elected officials, and therefore influenced by politics and the public’s opinion.[7]
Many prosecutors have openly admitted that they take public opinion, media reactions, and the political sphere into account when deciding how to handle their cases.[8] Because of this, public opinion and political pressure have caused prosecutors to be hesitant to implement changes consistent with progressive prosecution.[9] A key issue is public opinion has been shaped by political narratives rather than empirical evidence.[10] The empirical evidence demonstrates that progressive prosecution can successfully be introduced through low-level nonviolent offenders.[11] To implement these programs, prosecutors must reframe their campaign strategies to better address public concerns and overcome re-election pressures.
What is Progressive Prosecution
Progressive prosecution is a method of prosecution based on the belief that crime is a social phenomenon that is better addressed through community services rather than institutions like prisons.[12] Progressive prosecutors are committed to preventing crime instead of simply just punishing the offender.[13] Compassion for defendants is also a hallmark of progressive prosecutorial practice.[14] This movement began gaining support in 2014.[15] In 2016, the country saw a rise in elected progressive prosecutors who campaigned on reducing mass incarceration and redressing the socioeconomic and racial bias present in the criminal justice system.[16]
These prosecutors focused on reform through a number of policy changes such as eliminating or reducing cash bail, diverting non-violent offenders, and reducing sentences for low-level drug offenses, including the possession of marijuana.[17] These progressive prosecutors were following in the footsteps of prosecutors in the past who declined to prosecute similar victimless crimes such as adultery and sex offenses involving consenting adults.[18] This rise in progressive prosecution indicated a shift in public opinion against mass incarceration.[19]
Prosecutors’ susceptibility to public opinion and the political sphere presents a major constraint on the implementation of progressive prosecution.[20] Often, prosecutors are constrained by the political sphere and must make compromises, even if it goes against the promises they campaigned on.[21] In regard to public opinion, relying on citizen support is challenging given the many factors that can influence the public.[22] This includes the fact that the outcome of one case, when disseminated by the media may affect a prosecutor’s ability to win re-election[23] and the public’s vulnerability to political narratives.[24] The media chooses the story it would like to tell and how they tell it, they choose the context and the narrative that the public sees when reading or listening to the story and the public is often influenced by sensationalist headlines.[25] As fast as progressive prosecution was on the rise in 2016, when it came time for re-election, public opinion and the political landscape surrounding crime had already shifted.[26]
Progressive Prosecution in Practice
Between 2016 and 2022, several progressive prosecutors were elected across the country.[27] All of these prosecutors ran on similar campaigns, focusing on reforms like holding police more accountable, reducing mass incarceration, lenient sentencing reform, and ending cash bail, among other policies.[28] By 2022, all of these prosecutors were either recalled while serving as the district attorney of their region or lost when trying to be re-elected for an additional term.[29] There were many reasons for these recalls and replacements, but the most common across all of the prosecutors was that the public felt like their safety was jeopardized and that crime rates had increased due to progressive prosecution.[30] Many were replaced by prosecutors who ran on more of a “middle ground” stance on punishment[31], and those elected in place of the progressive prosecutors often campaigned directly against the use of progressive prosecution claiming that it harmed district attorneys’ offices.[32]
The shift in public opinion was certainly influenced by attacks from the political sphere against progressive prosecutors who were criticized for being too “woke”, a threat to public safety, and anti-police.[33] In 2019, U.S. Attorney General William Barr attacked progressive prosecutors as a whole in a speech to the Fraternal Order of Police.[34] The presidential administration at that time was also hostile toward progressive prosecution policies which only further complicated the political sphere’s effect on the movement.[35] President Trump accused a well-known progressive prosecutor, Larry Kasner, district attorney of Philadelphia, of letting killers out almost immediately.[36]
Additionally, this shift was marked by a rise in crime. Even though this rise in crime rates did not result from the progressive prosecutorial reforms implemented, progressive prosecutors were used as scapegoats.[37] Lawmakers took a similar route and pushed for bills that would constrain prosecutors’ discretion in deciding which crimes to prosecute and other bills that would make it easier to remove these elected officials from office.[38] This represents a long line of political tactics to distract from the actual drivers of crime in the United States.[39] These short-term changes in crime rates indicate the vulnerabilities of progressive prosecution as a movement in the long run.[40]
Evidence Against the Narrative
Despite the political narrative pushed and the public’s fear for public safety due to progressive prosecution, many studies point to the fact that it was not progressive reform policies that increased crime.[41] A comprehensive analysis found no evidence that linked progressive prosecution reform policies to rising homicide or larceny rates.[42] In fact, it was found that progressive prosecution had no effect on these crime rates.[43] Crime trends in progressive prosecutor jurisdictions match those in which the “typical” prosecutor had been elected.[44] Where these crime rates do not match other jurisdictions, they actually indicate lower crime rates.[45] Despite the push in the media that progressive prosecutors are to blame, other variables such as economic, political, and social factors, may provide better explanations for the increase in crime.[46]
Empirical evidence shows that when implemented, progressive prosecution reform policies, like diversion programs, achieve better outcomes than traditional methods that lead to increased mass incarceration.[47] It has been found that imprisonment has little effect on the crime rate.[48] In fact, prison may make some people more likely to commit crimes post-release.[49] Unnecessarily harsh sentences also may increase crime and cause more harm to defendants.[50]
Diversion programs are effective alternatives to prosecution that have better outcomes than the traditional route to mass incarceration.[51] These programs connect people with the resources they need to turn their lives around, limit contact with incarceration, and avoid the collateral consequences of convictions.[52] They have been found to reduce recidivism and increase public safety.[53]
It is clear that the public can support policy reform toward low-level non-violent offenders through the initial election of many progressive prosecutors across the country. In fact, an ACLU report found that 9 out of 10 voters said that it was important for a prosecutor to prioritize alternatives to incarceration.[54] This support spans across all political backgrounds.[55] Not only has there been public support, but the empirical evidence supports this reform as well. Studies have found that prison instead of probation for lower-level drug offenders actually increases their likelihood of recidivism upon release.[56] More specifically, there were higher recidivism rates for offenders who committed drug and property crimes, offenses progressive prosecutors seek to address through reforms.[57] Alternatives to incarceration like diversion programs and drug courts therefore promote public safety more effectively for these low-level offenders.[58] These programs also cost less since they address the core problem of why these offenders are committing crimes instead of sending people to incarceration and avoiding the issue.[59] Focusing on reform for these low-level offenders not only reduces recidivism but would reduce the incarceration population by about 364,000 people.[60] This would significantly decrease the cost of incarceration as taxpayers pay approximately $31,000 per inmate each year.[61]
Appealing to the Public
It is clear that progressive prosecution offers more effective alternatives than mass incarceration. However, what is not clear is how to ensure the public is not easily swayed by political narratives rather than empirical evidence. Three suggestions for prosecutors running their campaign with a focus on reform policies include: focus on the fiscal impacts of mass incarceration to appeal to citizens across all political spectrums; run on a campaign that is “smart on crime” rather than “tough on crime” or “soft on crime”; and educate the public about the criminal justice system during the campaign process.
Focusing on the fiscal impact attracts citizens of all political spectrums.[62] Progressive prosecutors should focus on the critique that mass incarceration is a poor “return on investment”.[63] Most Americans have indicated that they do not want to spend tax dollars on mass incarceration.[64] They prefer the money to go toward crime prevention such as community programs for nonviolent offenders and drug offenses rather than prisons.[65]
Being “smart on crime” is the idea of pursuing policies that are fair, effective, and thoughtful.[66] This idea promotes essentially the same reform policies of progressive prosecution in that it supports alternatives to arrests and incarceration.[67] However, it’s different in that it emphasizes the use of evidence and data to inform policies.[68] The disregard for empirical evidence from the public is a key issue in the advancement of progressive prosecution. Therefore, by running a campaign that draws from evidence and data, and specifically highlighting this in speeches and the media, the public can be better informed on why the prosecutor is running on a progressive platform. This helps society move past the connotations of “tough on crime” or “soft on crime” arguments and focus on the actual evidence that supports reform for mass incarceration.[69]
In a similar vein, prosecutors need to be intentional in their campaigning. They should discourage unreasonable expectations from either side of the political spectrum, be careful in their campaign rhetoric, and remind the public of the realities of the criminal justice system.[70] Transparency about the criminal justice system can help the public understand why a popular case did not end how they expected or why charges were not brought against an offender. Evidence-based judgement about the choice to pursue alternatives to prosecution should ultimately be made by the prosecutor and not influenced by the political climate, but being transparent about this can certainly help the public understand the decision made.[71] Forming a strong political message can often soften pushback by being clear in your intentions and goals.[72] Harnessing existing support behind reducing incarceration for low-level offenses and opposition to mass incarceration will help push the movement forward.[73]
Conclusion
Prosecutorial decisions should not be based on scoring political points. It should be about doing what’s best for the community, the victim, and the defendant. It is empirically proven that progressive prosecution reform policies are successful in achieving the overall goal of reform measures. The public has made it clear that they do not want their money going toward mass incarceration but prefer to decrease sentences and punishment for low-level nonviolent offenders. Public support for reform policies has existed in the United States and can still exist despite political narratives skewing the facts. Prosecutors need to change their campaign strategies to regain public support for reform that can start to make a difference toward decreasing levels of mass incarceration.
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[1] Seema Gajwani & Max G. Lesser, The Hard Truths of Progressive Prosecution and a Path to Realizing the Movement’s Promise, 64 NYL Sch. L. Rev. 69, 72 (2019-2020).
[2] Id. at 73.
[3] Alexander J. Kott, The Compromises Progressive Prosecutors Must Make: Three Case Studies 14 (2021) (Honors Thesis, Oberlin College) (on file with the Digital Commons at Oberlin).
[4] Michael Tonry, Prosecutors and Politics in Comparative Perspective, 41 Crime & Justice 1, 1 (2012).
[5] Id.
[6] The Paradox of “Progressive Prosecution,” 132 Harv. L. Rev. 748, 751 (2018); Bruce A. Green & Rebecca Roiphe, When Prosecutors Politick: Progressive Law Enforcers Then and Now, 110 J. Crim. L. & Criminology 719, 719 (2020).
[7] Tonry, supra note 4, at 2.
[8] Id.
[9] Lakeidra Chavis, Is the Age of Progressive Prosecutors Over?, The Marshall Project (Nov. 23, 2024), https://www.themarshallproject.org/2024/11/23/texas-florida-illinois-progressiveprosecutor#:~:text=In%20Nueces%20County%2C%20Texas%2C%20which,New%20York%2C%20for%20example.
[10] Id.
[11] Alexander L. Burton et al., Most Americans Do Not Like Mass Incarceration: Penal Sensibility in an Era of Declining Punitiveness, 16 J. of Experimental Criminology 19 (2025).
[12] Bruce A. Green & Rebecca Roiphe, When Prosecutors Politick: Progressive Law Enforcers Then and Now, 110 J. Crim. L. & Criminology 719, 719 (2020).
[13] Id. at 728.
[14] Id.
[15] Rachael Eisenberg & Allie Preston, Progressive Prosecutors Are Not Tied to the Rise in Violent Crime, Ctr. for American Progress (Oct. 26, 2022), https://www.americanprogress.org/article/progressive-prosecutors-are-not-tied-to-the-rise-in-violent-crime/.
[16] Green & Roiphe, supra note 12, at 720.
[17] Id. at 758.
[18] Id.
[19] Kott, supra note 3, at 42.
[20] Id. at 41.
[21] Hana Yamahiro & Luna Garzón-Montano, A Mirage Not a Movement, The Misguided Enterprise of Progressive Prosecution, 46 NYU Rev. of L. & Soc. Change (Harbinger) 131, 138 (Jun. 27, 2022).
[22] Kott, supra note 3, at 41.
[23] Id. at 42.
[24] John Paff, Reform Prosecutors Do Not Increase Crime: What the Data Tells Us, Prisons, Prosecutors, and the Politics of Punishment (Dec. 10, 2024), https://johnfpfaff.com/2024/12/10/reform-prosecutors-do-not-increase-crime-what-the-data-tells-us/.
[25] Id.
[26] Chavis, supra note 8; Kott, supra note 3, at 3, 6.
[27] Recent Election State Election Law Recall Process San Francisco, 136 Harv. L. Rev. 1740, 1741 (2023); Jana Katsuyama & Aja Seldon, Alameda County DA Pamela Price Concedes After Recall Passes, KTVU (Nov. 19, 2024 5:35 AM), https://www.ktvu.com/news/alameda-county-da-pamela-price-discuses-recall-election-results; Melanie Mason, George Gascón, Los Angeles’ Embattled Progressive Prosecutor, Loses Reelection Bid, Politico (Nov. 6, 2024 4:08 AM), https://www.politico.com/live-updates/2024/11/05/2024-election-results-live-coverage-updates-analysis/george-gascon-loses-los-angeles-district-attorney-race-00185073; The Paradox of “Progressive Prosecution”, supra note 5, at 750; Kott, supra note 3, at 3.
[28] Recent Election State Election Law Recall Process San Francisco, supra note 26, at 1741; Step in the Right Direction for Alameda County, Oakland Rising (Apr. 15, 2023), https://www.oaklandrising.org/step-in-the-right-direction-for-alameda-county/; Mason, supra note 26; The Paradox of “Progressive Prosecution”, supra note 5, at 750; Kott, supra note 3, at 3.
[29] Recent Election State Election Law Recall Process San Francisco, supra note 26, at 1742; Katsuyama & Seldon, supra note 26; Lisel Petis, Move Over Progressive Prosecutors, Pragmatic Prosecutors Are The New “It” Thing, R Street (Dec. 6, 2024), https://www.rstreet.org/commentary/move-over-progressive-prosecutors-pragmatic-prosecutors-are-the-new-it-thing/; Andrew Schneider, Sean Teare Defeats Harris County District Attorney Kim Ogg in Democratic Primary, Houston Public Media (Mar. 5, 2024 7:29 PM), https://www.houstonpublicmedia.org/articles/news/politics/election-2024/2024/03/05/479773/sean-teare-defeats-harris-county-district-attorney-kim-ogg-in-democratic-primary/.
[30] Recent Election State Election Law Recall Process San Francisco, supra note 26, at 1742; Katsuyama & Seldon, supra note 26; Petis, supra note 29; Schneider, supra note 29.
[31] Petis, supra note 29.
[32] Schneider, supra note 29.
[33] Chavis, supra note 8.
[34] Green & Roiphe, supra note 12, at 743.
[35] Bruce A. Green & Lara Bazelon, Restorative Justice From Prosecutors’ Perspective, 88 Fordham L. Rev. 2287, 2309 (2020).
[36] Green & Roiphe, supra note 12, at 744.
[37] Chavis, supra note 8.
[38] Scott S. Greenberger, Republicans Try to Rein in ‘Rogue’ Progressive Prosecutors, Stateline (Mar. 23, 2023 12:00 AM), https://stateline.org/2023/03/23/republicans-try-to-rein-in-rogue-progressive-prosecutors/#:~:text=Vowing%20to%20rein%20in%20so,not%20to%20enforce%20abortion%20bans.
[39] Rachael Eisenberg & Allie Preston, Progressive Prosecutors Are Not Tied to the Rise in Violent Crime, Ctr. for American Progress (Oct. 26, 2022), https://www.americanprogress.org/article/progressive-prosecutors-are-not-tied-to-the-rise-in-violent-crime/.
[40] Ronald Brownstein, Why California Wants to Recall Its Most Progressive Prosecutors, The Atlantic (Apr. 28, 2022), https://www.theatlantic.com/politics/archive/2022/04/san-francisco-los-angeles-da-recalls/629701/.
[41] Eisenberg & Preston, supra note 39; Lauren-Brooke Eisen et al., Myths and Realities: Prosecutors and Criminal Justice Reform, Brennan Ctr. for Just. (Oct, 23, 2024), https://www.brennancenter.org/our-work/research-reports/myths-and-realities-prosecutors-and-criminal-justice-reform.
[42] Eisenberg & Preston, supra note 39.
[43] Id.
[44] Eisen et al., supra note 41.
[45] Id.
[46] Id.
[47] Amy Dallas et al., Diversion Without Debt: Case Studies from Three County Prosecutors Leading Fee Reform 12 (Vera Inst. of Just. Jan. 2026); James Austin et al., How Many Americans are Unnecessarily Incarcerated? 22 (Brennan Ctr. for Just 2016).
[48] Austin et al., supra note 47, at 22.
[49] Id.
[50] Id.
[51] Dallas et al., supra note 47, at 3.
[52] Id.
[53] Id.
[54] Taylor Pendergrass, Tough-on-Crime Prosecutors Are Out of Step with Public Views, ACLU (Dec. 12, 2017), https://www.aclu.org/news/smart-justice/tough-crime-prosecutors-are-out-step-public-views.
[55] Id.
[56] Austin et al., supra note 47, at 22.
[57] Id.
[58] Id.
[59] Id.
[60] Id. at 44.
[61] Id.
[62] Pendergrass, supra note 53.
[63] Kott, supra note 3, at 8.
[64] Burton et al., supra note 10, at 19.
[65] Id.
[66] Ed Young, Smart on Crime: An Alternative to the Tough vs. Soft Debate, Ctr. for American Progress (May 12, 2017), https://www.americanprogress.org/article/smart-crime-alternative-tough-vs-soft-debate/.
[67] Id.
[68] Id.
[69] Id.
[70] Green & Roiphe, supra note 12, at 764.
[71] Id. at 766.
[72] Kott, supra note 3, at 46.
[73] Id. at 51.