A fiduciary theory of progressive prosecution

• Author: Bruce A. Green and Rebecca Roiphe
• Position: Louis 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
• Pages: 1431-1466

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 prosecutors” have 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, 647–48 (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 736–38 (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, 736–46 (2020) (explaining how progressive prosecutors resemble their

predecessors and how they differ); Benjamin Levin, Imagining the Progressive Prosecutor, 105 MINN. L. REV.

1415, 1416–18 (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, 135–53

(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, 188–202 (2021).

7. Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837, 839–52 (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

actors—that is, other elected executive-branch officials or legislators—more 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 laws—namely, a judgment by legislators that the laws in

question should at least sometimes be enforced.

14

Finally, in announcing broad

policies—not simply announcing individual indictments and convictions—pro-

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, 10–30 (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.

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