Expanding the Reach of Progressive Prosecution.

• Author: Bellin, Jeffrey
• Position: Conference on Progressive Prosecution

INTRODUCTION 707 I. THE RISE OF THE PROGRESSIVE PROSECUTOR 707 II. A UNIVERSAL MODEL: PROSECUTORS AS CARETAKERS 711 INTRODUCTION

This Symposium comes at a critical juncture for America's prosecutors. One important question--"Is there room for a new kind of prosecutor?"--has already been answered. Self-styled "progressive prosecutors" are flourishing in jurisdictions across the country. The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be. One way this question will be answered is through the movement's influence on the many prosecutors who are open to reform but unlikely to adopt the "progressive" label or accompanying rhetoric.

This Essay explores this theme by discussing, first, the rise of progressive prosecution and, second, how this movement's initial success can stimulate the long-overdue development of a generally applicable, normative theory of the prosecutor's role. It suggests a conceptualization of the American prosecutor as a caretaker for the criminal justice system, who should default to lenience when that system becomes so congested and punitive that it cannot deliver on its constitutional ideals.

1. THE RISE OF THE PROGRESSIVE PROSECUTOR

   Two societal trends are key ingredients in the rise of the progressive prosecutor: (1) a growing recognition of the problem of mass incarceration, and (2) a gradual downward trend in crime. These two factors feed an emerging consensus that severe penal policies are unwarranted, if not immoral. Critics attack both the system's motives and its competence. (1) Progressives are not alone. Conservatives, too, criticize the penal system as a massive government program with unclear goals and questionable claims to success. (2)

   In a democracy, local elections are the natural place to direct popular energy. While a desire for criminal justice reform could reasonably be channeled toward electing legislators or state judges, some organizers focus on another target--district attorneys.

   District attorney races offer a rare bargain in the money-fueled arms race of American politics. District attorney elections are characterized by low voter interest. (3) Candidates regularly run unopposed. (4) In some jurisdictions it is difficult to find anyone willing to take the job. (5) This plays to two strengths of progressive reformers: (1) a passionate voter base and (2) access to campaign financing from wealthy donors like George Soros. (6) Strategic infusions of campaign funds allow reform challengers with a progressive message to mobilize like-minded voters and oust incumbent district attorneys.

   Apart from the political advantages noted in the preceding paragraph, there are structural reasons reformers target district attorneys, as opposed to judges, police, or legislators. District attorneys have no boss. They answer solely to the voters. This means that District Attorneys do not need to clear their policies with other officials. They can act unilaterally. By contrast, conservative and progressive legislators must often compromise to pass laws. Trial courts, in turn, are checked by appellate courts, which themselves require compromise in order to generate a controlling opinion. Police chiefs, another powerful source of reform, are similar to district attorneys with respect to local independence. But police chiefs in large cities are generally not elected. (7) And the mayors who appoint chiefs are often multi-issue candidates running in broadly contested elections. (8)

   Reformers also tapped into decades of hyperbolic scholarly commentary on prosecutors. (9) The scholarly conversation began with famous rhetorical flourishes highlighting the once-overlooked importance of prosecutorial discretion. (10) Building on this rhetoric, modern scholarly commentary reached a head-turning crescendo. Scholars regularly suggest that prosecutors are the most powerful actors in the criminal justice universe, if not the sole drivers of criminal justice policy. (11) Reformers astutely capitalize on this rhetoric to motivate progressive funders and voters to focus on district attorney elections. (12)

   The distinctive political and structural factors described above explain reformers' focus on electing prosecutors. District attorneys are single-topic candidates competing in low-turnout elections who, once elected, can act unilaterally albeit in narrow jurisdictional spheres. Overheated scholarly rhetoric on prosecutorial power was just icing on the cake. It likely does not matter to the political actors driving the movement that prosecutors (writ large) are the fourth most powerful criminal justice actors, trailing legislatures (#1), police (#2), and judges (#3). Daniel Fryer's contribution to the Symposium takes up this question in more detail, reaching similar, if distinct, conclusions. (13) If reformers could, they would happily pick any--or all--of these powerful potential sources of reform. But District Attorneys in cities with large progressive populations are low hanging fruit.

   Importantly, fourth-most powerful is still quite powerful. (14) In addition, the distinctive power that prosecutors possess--the power to let people go--maps nicely onto portions of the progressive agenda. (15) There is no question that reform-minded prosecutors can influence the criminal justice system.

   Recognizing the limits on prosecutor power is nevertheless important to evaluating the long-term impact of progressive prosecution. While typically unable to directly overrule a prosecutor's decisions, judges, legislators, governors, and police can still check prosecutors in a variety of ways. (16) As I have written elsewhere, ''it takes a village" to send someone to prison and even prosecutorial leniency can be undermined by police, legislators, and judges. (17) In addition, the populist energy that enabled the swift rise of progressive prosecutors could also bring about their downfall. If crime spikes again or politics shift for other reasons, voters may become less receptive to progressive prosecution, even in liberal jurisdictions. (18) Similarly, competing funding sources may rise in opposition to progressive funders. These developments could undo progressive prosecutors' work. What's more, the heightened politicization of district attorney elections and a new consensus about the benefits of enhancing (not reducing) prosecutorial power, could remain long after the current wave of progressive prosecutors depart...