A fiduciary theory of progressive prosecution

AuthorBruce A. Green and Rebecca Roiphe
PositionLouis Stein Chair and the Director of the Louis Stein Center for Law and Ethics at Fordham Law School/Joseph Solomon Distinguished Professor of Law and Co-Dean for Faculty Scholarship at New York Law School
Pages1431-1466
A FIDUCIARY THEORY OF PROGRESSIVE PROSECUTION
Bruce A. Green* and Rebecca Roiphe**
ABSTRACT
Progressive prosecutors differ from their more traditional counterparts pri-
marily 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 prose-
cutors have encountered from the public, legislatures, courts, police, and their
own subordinate prosecutors. Drawing on fiduciary theory, it explains this reac-
tion 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 discre-
tion 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 con-
cludes by suggesting ways in which progressive prosecutors can pursue their
conception of justice while still adhering to the fiduciary role.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1432
I. CONTROVERSY AND PUSHBACK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1435
A. The Role of Discretion in Progressive Prosecutors’ Decisions . . 1437
B. The Role of Public Policy in Progressive Prosecutors’
Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1441
C. Categorical Decision Making . . . . . . . . . . . . . . . . . . . . . . . . 1442
II. THEORETICAL CRITIQUE OF PROGRESSIVE PROSECUTION . . . . . . . . . . . . . 1447
A. Why Fiduciary Theory?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1448
B. Fiduciary Theory and Progressive Prosecutors . . . . . . . . . . . 1451
1. Who is the Progressive Prosecutor’s Beneficiary? . . . . . . 1451
2. Fiduciary Theory, Discretion, and Prosecutors’ Categorical
Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1453
3. Fiduciary Theory, Discretion, and Accountability . . . . . . 1455
4. The Result of Blanket Policies and Other Restrictions on
Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1459
III. TOWARD A FIDUCIARY THEORY OF PROGRESSIVE PROSECUTION . . . . . . . . 1462
* Bruce A. Green is the Louis Stein Chair and the Director of the Louis Stein Center for Law and Ethics at
Fordham Law School. © 2023, Bruce A. Green and Rebecca Roiphe.
** Rebecca Roiphe is the Joseph Solomon Distinguished Professor of Law and Co-Dean for Faculty
Scholarship at New York Law School.
1431
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1466
INTRODUCTION
Since 2016, candidates labeled as progressive prosecutorshave achieved
increasing success at the polls.
1
See, e.g., Matthew Impelli, Progressive Prosecutors Win in Midterms Despite GOP’s Attacks on Crime,
NEWSWEEK (Nov. 9, 2022), https://www.newsweek.com/progressive-prosecutors-election-outcomes-nationwide-
wins-1757651; David Alan Sklansky, The Changing Political Landscape for Elected Prosecutors, 14 OHIO ST. J.
CRIM. L. 647, 64748 (2017) (describing prosecutors elected by promising less incarceration).
They are brought together, and supported, by not-
for-profit organizations such as Fair and Just Prosecution
2
FAIR AND JUST PROSECUTION, https://fairandjustprosecution.org/.
and the Association of
Prosecuting Attorneys.
3
ASSOCIATION OF PROSECUTING ATTORNEYS, https://www.apainc.org/.
Elected as reformers, these prosecutors have generally
responded to over-incarceration and racial injustice in the criminal process by
adopting policies to reduce the number of prosecutions of low-level criminal cases,
decrease the number of defendants jailed before trial, and hold police accountable
for overreach.
4
Many progressive prosecutors have faced pushback from judges,
other public officials, police, the media, constituents, and subordinate prosecutors.
5
This Article draws a distinction between progressive criminal justice goals and the
process by which contemporary progressive prosecutors seek to obtain these goals,
arguing that the goals are certainly legitimate and may be laudable, but the process
of implementing them is often both inconsistent with the prosecutor’s role and
likely to invite challenges.
Progressive prosecutors tend to be more closely identified with a political move-
ment than their more traditional colleagues and predecessors.
6
Traditionally, prose-
cutors, like judges, convey that they are non-ideological. Indeed, the role has
sometimes been characterized as quasi-judicial.
7
Often, traditional prosecutors
have given the impression that, like judges, they make decisions that are dictated
by the law and facts without regard to political or policy preferences.
8
Green & Roiphe, supra note 4, at 73638 (describing characteristics of the professional prosecutor); John
Leland, Robert Morgenthau on His Years as District Attorney: ‘I Don’t Look Back,N.Y. TIMES (Nov. 23, 2016),
https://www.nytimes.com/2016/11/23/nyregion/robert-morgenthau-manhattan-district-attorney.html (emphasizing
traditional professional values and ethical guidelines as driving decision making in the office).
Although
they have at times decided not to enforce certain laws that they regard as outmoded
or trivial, and have adopted internal policies to ensure that similar cases are treated
1.
2.
3.
4. Bruce A. Green & Rebecca Roiphe, When Prosecutors Politick: Progressive Prosecutors Then and Now,
110 J. CRIM. L. & CRIMINOLOGY 719, 73646 (2020) (explaining how progressive prosecutors resemble their
predecessors and how they differ); Benjamin Levin, Imagining the Progressive Prosecutor, 105 MINN. L. REV.
1415, 141618 (2021) (seeking to define progressive prosecutors by sorting them into different types).
5. See infra Part I. See also Hana Yamahiro & Luna Garzón-Montano, A Mirage Not a Movement: The
Misguided Enterprise of Progressive Prosecution, 46 N.Y.U. REV. L. & SOC. CHANGE HARBINGER 130, 13553
(2022) (describing and illustrating structural and political barriers to progressive prosecution).
6. Green & Roiphe, supra note 4, at 749; Darcy Covert, Transforming the Progressive Prosecutor Movement,
2021 WIS. L. REV. 187, 188202 (2021).
7. Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837, 83952 (2014)
(discussing the traditional notion of prosecutorial neutrality).
8.
1432 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:1431
in similar fashion, traditional prosecutors have conventionally made decisions about
whether to bring charges, which charges to bring, what plea bargains to offer, and
what sentences to seek, on an ad hoc, case-by-case basis in light of a broad array of
relevant facts as well as professional norms and practices in the office.
9
In several respects, progressive prosecutors tend to resemble other political
actorsthat is, other elected executive-branch officials or legislatorsmore than
judges. They often draw support from left-leaning political action committees and
further support from a national progressive constituency.
10
Once elected, progres-
sive prosecutors have adopted and announced policies directed at reducing incar-
ceration or promoting racial equity in criminal law enforcement.
11
See PRERNA JAGADEESH, ISA ALOMRAN, LEW BLANK & GUSTAVO SANCHEZ, DATA FOR PROGRESS, A NEW
GENERATION OF PROSECUTORS IS LEADING THE CHARGE TO REIMAGINE PUBLIC SAFETY 1 (2021), https://www.
filesforprogress.org/memos/new-generation-of-prosecutors-reimagine-public-safety.pdf.
Often, these
policies involve declining to prosecute categories of low-level crimes, declining to
employ sentencing enhancements, or declining to seek pretrial incarceration in cer-
tain types of cases.
12
Where traditional prosecutors purported to make individual
discretionary decisions based on considerations internal to criminal law enforce-
ment, such as whether a prosecution would promote deterrence or retribution or
would be disproportionately harsh given the nature of the criminal conduct, pro-
gressive prosecutors’ categorical policies appear more political because they are
based on explicit public-policy judgments external to the individual facts of the
case.
13
Further, these prosecutors’ categorical declination policies invite political
controversy because they appear to be inconsistent with the political judgments
underlying the criminal lawsnamely, a judgment by legislators that the laws in
question should at least sometimes be enforced.
14
Finally, in announcing broad
policiesnot simply announcing individual indictments and convictionspro-
gressive prosecutors often appear more like other political actors in the sense that
they seem to be making law, not just enforcing it in individual cases.
The approach that progressive prosecutors take in adopting and publicizing cate-
gorical policies aligned with progressive goals is not primarily an ideological de-
parture from the traditional approach because traditional prosecutors could share
progressive prosecutors’ ideological preferences. It is primarily a difference in the
process by which the office makes and announces decisions. In making discretion-
ary decisions on an ad hoc basis, traditional prosecutors have implemented a
9. Green & Roiphe, supra note 4, at 741.
10. See Rory Fleming, Legitimacy Matters: The Case for Public Financing in Prosecutor Elections, 27 WASH.
& LEE J. C.R. & SOC. JUST. 1, 1030 (2020) (detailing the substantial role of funding from Soros-affiliated PACs
to the election of progressive prosecutors); see also Carissa Byrne Hessick & Michael Morse, Picking
Prosecutors, 105 IOWA L. REV. 1537, 1540 (2020) ([A] motivated group of advocates and their supporters have
started a movement to elect progressive prosecutors.).
11.
12. See id.
13. See Part I infra (describing legislative and judicial pushback).
14. Id.
2023] A FIDUCIARY THEORY OF PROGRESSIVE PROSECUTION 1433

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