PITFALLS OF PROGRESSIVE PROSECUTION.

• Author: Hessick, Carissa Byrne

Introduction 973 I. Progressive Prosecution as a Political Brand 975 A. Fundamentally Different 979 B. Doing Less 980 II. Progressive Branding and Pitfalls 982 III. Avoiding the Pitfalls 986 Conclusion 988 INTRODUCTION

Much has been written about the rise of progressive prosecutors--prosecutors who, rather than pursuing tough-on-crime policies, instead seek to use their office to help reduce incarceration rates and other punitive outcomes. Over the past decade, a number of candidates have run on progressive, decarceral platforms. Many have won. These wins have been hailed as great achievements within the criminal justice reform community, but they have also engendered backlash from outside of that community. Progressive prosecutors have come under attack, facing not only harsh public criticism, but also impeachment, (1) gubernatorial removal from office, (2) and election losses. (3)

Some of the attacks directed at progressive prosecutors appear to be little more than political opportunism. But others appear to be attributable, at least in part, to various problems with the progressive prosecution brand. These problems--or pitfalls, as I call them--make progressive prosecutors especially vulnerable to attack, and unless they are addressed, these pitfalls may stymie the progressive prosecution movement.

This Essay identifies two major pitfalls for progressive prosecution. The first is that, in styling themselves as substantively different than other prosecutors, progressive prosecutors may have obscured the extent to which they are relying on otherwise well-worn and well-accepted prosecutorial tools. For example, prosecutorial charging discretion has a lengthy history in America; prosecutors have long declined to bring charges even when they possessed enough evidence to indict or convict. In casting themselves as a different type of prosecutor, progressive prosecutors have contributed to (if not caused) the impression that their declination of charges is somehow radical or unique. This impression has, in turn, fueled attacks on progressive prosecutors, enabling others to use them as scapegoats for the failings of police and other government actors.

The second pitfall is related to public safety. One of the oft-repeated progressive prosecution goals is to reduce mass incarceration. One way that prosecutors have implemented this goal is to "do less"--i.e., use their powers more sparingly and thus keep more cases out of the criminal justice system. Sometimes the "do less" concept is coupled with an assertion that reduction of crime and the protection of public safety is better achieved through non-criminal means, such as efforts to reduce poverty and efforts to increase education, treatment programs, and job opportunities.

These sentiments found ready audiences when crime rates were falling, but they may prove deeply unpopular as crime begins to rise. Ordinarily, when crime and disorder increase in a local community, the traditional prosecutor seeks to reduce crime by becoming more punitive--filing more serious charges and refusing to offer favorable plea deals. The progressive prosecutor, in contrast, believes that reducing crime is best achieved by addressing "root causes"--e.g., by increasing spending on social services that address poverty and increase other opportunities. But ultimately, a prosecutor's power is criminal in nature--she can directly control the filing or dismissal of criminal charges and negotiations over plea agreements; she cannot increase local budgets or administer social service programs.

The pitfalls that I identify are not insurmountable. Progressive prosecutors (and their allies) can adjust their messaging to highlight the lengthy history of the tools that they use. Progressive prosecutors can also take affirmative steps, through relationships with other public officials and by using their own non-criminal powers to actively pursue the non-criminal public safety strategies that they champion. Such steps may not fully insulate progressive prosecutors from politically motivated attacks. But failing to acknowledge and address these pitfalls is likely to make such attacks more frequent and more effective.

This Essay proceeds in three parts. Part I discusses how progressive prosecutors have successfully gained office in the past decade. (4) It focuses on two key themes in progressive candidates' campaigns--the revolutionary nature of the movement and the vow to use prosecutorial power more sparingly--highlighting how these themes are part of a successful national "brand" for would-be local prosecutors.

Part II explains how these two themes in successful campaigns have the capacity to become political liabilities for incumbent progressive prosecutors. (5) Using real world examples, it demonstrates how the two features leave progressive prosecutors politically vulnerable.

Part III offers suggestions for how to tweak the progressive prosecutor brand to better avoid these pitfalls. (6) In particular, it suggests that progressive prosecutors emphasize the long traditions associated with their actions, and it encourages them to cooperate with non-criminal enforcement agencies and to highlight that cooperation as affirmative steps toward reducing crime and promoting public safety.

To be clear, progressive prosecutors will face opposition and backlash no matter what tactics they adopt. Some people are simply too invested in the traditional, punitive role that modem prosecutors play in American society, and thus they will always find fault with those who seek the office to bring about criminal justice reform. Others are looking for a convenient political foil which allows them to use crime as a wedge issue.

But there are a great number of persuadable members of the public--people who are both supportive of criminal justice reform and concerned about public safely. It is important for those people to understand that reform and safety can coexist. Tweaking the message of progressive prosecutors could help bring about that understanding and ensure that progressive prosecution remains a popular political brand.

1. PROGRESSIVE PROSECUTION AS A POLITICAL BRAND

   Thepast decade has witnessed the rise of the progressive prosecutor--prosecutors who use their power to reduce the footprint of the criminal justice system. While some prosecutors had been doing this work for some years prior, (7) the national movement to elect reform-oriented candidates hit its stride in the mid-2010s. (8) Since then, the term "progressive prosecutor" has become a national brand, (9) allowing candidates across the country to distinguish themselves from other, traditional prosecutors. By 2021, candidates in large urban jurisdictions were competing in Democratic primaries for the "progressive" label. (10)

   Political brands can be helpful in reaching voters. Most American voters are relatively uninformed--they know very little about the important policy issues of the day. (11) Rather than researching the relevant policies before casting a ballot, the typical voter relies on cues, like party affiliation, using those cues as rough proxies for policy preferences. (12) Those party labels are a political brand that has been cultivated over time. (13)

   While party labels may be effective in general elections, they cannot serve as an effective proxy for policy preferences in non-partisan elections or primary elections. In those elections there is no difference in party label to distinguish between candidates. (14) What is more, as Chris Elmendorf and David Schleicher have explained, party labels are also relatively unhelpful in state and local elections, where the national party brand does not meaningfully speak to the sub-national issues that those officials must address. (15)

   When progressive prosecutors came onto the scene, local prosecutor elections were ripe for a new political brand. Traditional party labels were insufficient for the reasons described above: prosecutor elections are sometimes non-partisan, (16) they are often decided in a primary election, (17) and the issues that local prosecutors must decide--e.g., whether to pursue a diversion program for first-time drug offenders, what the plea offer should look like for a residential burglary--are not meaningfully addressed by the national party brand. The "progressive prosecutor" label gave voters additional information about the candidates who adopted it--it was not only available even in primary and non-partisan elections, but it also spoke directly to criminal justice issues.

   The progressive prosecution brand has proved popular. In elections held between the years 2014 and 2019, candidates who ran on progressive platforms won at a higher rate than non-progressive candidates. (18) Their appeal was reflected not only in their victories at the polls, but also their prolific fundraising. (19) But while the label itself has proven popular, the term "progressive" has proven somewhat tricky. Many candidates have run campaigns that embrace the "progressive" label. Others have eschewed that particular term, even when running on platforms of reform. (20) And perhaps because the term "progressive" is tied to a broader movement within the modern American left, some academics and activists have disputed whether particular reform-oriented candidates ought to be considered "progressive." (21)

   Academics have noted the lack of consensus about what it means to be a "progressive prosecutor." (22) The label is sometimes used to refer to prosecutors who are willing to address misconduct and errors in their own offices. (23) Other times it refers to a prosecutor who is willing to use her powers to investigate and prosecute powerful interests such as...