American Criminal Law Review - Books and Journals

Progressive prosecutors or zealous defenders, from coast-to-coast

This Article challenges the narrative that the progressive prosecutor movement can meaningfully transform the criminal legal system and argues that the myopic focus on prosecutors as the solution to all that ails this system further diminishes the critical, and chronically under-resourced, role of the public defender. In presenting this claim, we do not question the sincerity of many self-styled progressive prosecutors' desires to “make a difference” in the criminal legal system or whether these prosecutors have in fact modified norms and practices positively in some jurisdictions. But in our view, the record reveals mostly modest changes and substantial, multidirectional resistance to anything more. And this record should not be a surprise, as prosecutors are executive branch officers with a job description primarily of charging and punishing crime in an adversarial system. The progressive prosecutor movement nevertheless has become another way for prosecutor offices to expand their mission, deepen their resources, and accrue power to do “justice.” We emphasize a different path to meaningful change: well-resourced, highly functioning public defense systems. We do not claim that public defenders are a panacea or a comparable solution to abolition. But we explore how a greater commitment to public defense more meaningfully can change the lives of people and communities impacted by our criminal legal system by empowering the professionals with the role and training, the professional incentives, and the institutional values to pursue material and sustainable change. In our view, truly progressive prosecutors would cede more resources and power to the defense rather than expand the mission and power of prosecutors

Progressive prosecutors: winning the hearts and minds of line prosecutors

The progressive prosecutor movement offers many critical proposals to reform our criminal justice system. However, it has not been able to fully accomplish its goals in many jurisdictions because the newly elected prosecutors have faced pushback, not just from hardline opponents to their reforms, but from the deputy prosecutors in their own offices. For there to be real change in prosecutors' offices, progressive prosecutors must win the hearts and minds of their own staff. Progressive prosecution is a cultural change that requires working with, not against, the rank and file of prosecution offices. To accomplish this, it is not enough that new directives are issued. Prosecutors must engage all their stakeholders, especially the line prosecutors who will be expected to implement the new directives. This requires educating the line prosecutors about the reasons reforms are needed, listening to their concerns, being open to modifying new policies depending on the operations and laws of the jurisdiction, and finding common ground with groups that have not yet joined the progressive prosecutors' movement. To meet this challenge, prosecutors would be well advised to learn how the business world successfully navigates onboarding new leadership teams

Prosecutorial Mutiny

Elected progressive prosecutors face resistance on many fronts to their reforms of the overly harsh and racist criminal legal system. One of these forms of resistance is particularly corrosive—internal dissension by line prosecutors. This resistance flummoxes criminal legal system reform and undemocratically interferes with the will of the electorate. This resistance, which we term “prosecutorial mutiny,” is also unethical under the American Bar Association's Model Rules. Given the pervasiveness of such mutiny alongside other sources of backlash to criminal system change, we argue that progressive prosecutors are not the panacea to all the criminal legal system's ills as many have hoped, and that resources should be focused on supporting other sources of change to the system

A fiduciary theory of progressive prosecution

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case. This Article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors. Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors' abdication of their fiduciary role. As a public fiduciary, prosecutors are entrusted with protecting the public's abstract interest in justice, and an integral part of this role is exercising discretion in individual cases based on a broad array of relevant considerations. This ad hoc discretionary decision-making process assures the public that prosecutors are drawing on their expertise to pursue justice in a basic sense rather than coopting the process for the benefit of some subset of the public. The Article concludes by suggesting ways in which progressive prosecutors can pursue their conception of justice while still adhering to the fiduciary role

Letter from the editor

Preface: new directions in prosecutorial reform

This Preface, which introduces the American Criminal Law Review's Symposium Issue on Reform-Minded Prosecution, begins by describing the power that prosecutors hold in the criminal legal system, which has historically gone unchecked and unquestioned. As mass incarceration, police violence, and wrongful convictions began to permeate the public consciousness, many communities focused their attention on the critical role of their local elected prosecutor and elected leaders who promised to do the job differently. Reform-minded prosecutors have enjoyed remarkable electoral successes over the past decade such that close to twenty percent of the U.S. population now resides in a jurisdiction with a reform-minded District Attorney (“DA”). The Preface goes on to discuss some of the groundbreaking accomplishments of these newly elected DAs, including establishing conviction integrity and sentence review units; ending prosecution of certain low-level offenses; holding law enforcement accountable; changing the treatment of young people in the criminal legal system; and more. Despite these promising initiatives, the Preface concludes with a discussion of the strong pushback, criticism, and opposition DAs have experienced. The DAs' use of their discretion has been a focal point of many attacks and has even led to attempts at supersession from state-level officials who oppose the reform efforts. Nevertheless, reform-minded prosecutors continue to advocate for the needs of their communities and to inspire those who believe in the possibility of a fair and just criminal legal system

Drug-induced homicide laws and false beliefs about drug distributors: three myths that are leaving prosecutors misinformed

An increasing number of criminal legal system actors, including some prosecutors, have acknowledged that the so-called “overdose crisis” is a public health problem. Despite this narrative shift, some prosecutors are responding to local overdoses by charging persons who distribute drugs that are linked to a subsequent death with criminal killing. These charges are brought either through the use of existing, non-specific statutes or so-called drug-induced homicide (“DIH”) statutes, which explicitly criminalize the act of delivering a substance subsequently associated with a death. In this Article, we outline three salient themes that have emerged from early literature and from preliminary surveys exploring prosecutors' perceptions of and justifications for filing DIH charges. In doing so, we provide empirical evidence to suggest that these narratives are based on myths about drugs and the people who use and distribute them—myths that are not supported, and are sometimes contradicted by, scientific research. This Article aims to dispel some of these pervasive yet unsound narratives contributing to the prosecutorial belief that DIH prosecutions have the capacity to improve public health and reduce overdose. In doing so, this Article also provides prosecutors with an alternative framework for more accurately conceptualizing how prosecutorial action against people who use and distribute drugs impacts the health and well-being of the entire community—including persons who use drugs. Finally, this Article also elucidates how well-intentioned prosecutors may be unwittingly causing more fatal overdoses by discouraging calls to 911 during an overdose emergency and by disrupting local drug markets in ways that directly increase the risk of overdose

Progressive prosecution or zealous public defense? The choice for law students concerned about our flawed criminal legal system

This Article addresses a question asked by many law students concerned about our flawed criminal legal system: should they become a prosecutor in an office run by a progressive prosecutor, or a public defender in an office devoted to zealous, client-centered (or holistic) defense? The Article starts with an anecdote about Philadelphia District Attorney Larry Krasner's road show to recruit law students and young lawyers, and then proceeds as follows: First, this Article makes the case for progressive prosecution; then, it makes the case for zealous indigent defense; then, it identifies the obstacles and challenges for both kinds of lawyers and offers a brief comment on prosecutor and defender “personalities;” finally, it offers thoughts on who, in the end, has more power to make meaningful change

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