Progressive Prosecution in a Pandemic.

• Author: Flanders, Chad
• Position: Conference on Progressive Prosecution

INTRODUCTION 685 I. WHAT IS "PROGRESSIVE PROSECUTION"? 688 II. PROGRESSIVE PROSECUTION IN A PANDEMIC 694 CONCLUSION 703 INTRODUCTION

The authors presented the articles in this volume in February 2020 at a conference that was open to students, lawyers, and the general public. As write this Introduction several months later, we are keenly aware that such a conference would not have been possible under our changed circumstances. (1) An even greater change has occurred within the legal system. Most trials have been delayed, and only the most urgent hearings happen in person. (2) Courts are wrestling with when, and how, they will reopen. Given this new legal reality, the articles in this volume might seem, at first blush, not only as if they were written in a prior time, but also as if they were written for a prior time.

Yet the urgency of the questions addressed in this volume has been, if anything, heightened by the COVID-19 pandemic. We have seen striking changes in the attitudes of state officials to incarceration in a very short time. Since the beginning of the pandemic, many more people have been released, rather than detained, before trial. (3) Low-level offenders are being sentenced to home confinement. (4) More police are giving warnings for low-level offenses rather than making arrests, (5) and prosecutors have established policies against prosecuting those arrested for low-level offenses. (6) As a result, prison and jail populations are declining, although it is too soon to tell how dramatic or permanent that decline will be.

These moves are driven by the fear--and, in many cases, the reality--of COVID-19 outbreaks in jails and prisons. (7) Correctional institutions are now virus hot spots, (8) and states and localities do not want to be responsible for the human suffering or for the costs of caring for a rash of new patients. At the same time, these reforms are in line with what so-called progressive prosecutors have proposed and fought to implement during the past several years. (9) In March 2020, many progressive prosecutors joined the chorus of voices calling on the criminal justice system to protect the well-being of those "behind prison walls." (10)

Of course, the vision of a smaller and more humane criminal justice system that motivates progressive prosecutors is not shared by all, even during the pandemic. Still, significant reforms can be motivated by crisis. (11) One might even argue that the progressive prosecution movement teed up these reforms by changing the terms of the conversation, making mass release not only thinkable, but also practically feasible. Progressive prosecutors were showing how release could be done before it absolutely needed to be done.

The spread of COVID-19 has slowed many other promising reforms, however, including some pushed by progressive prosecutors. For example, treatment courts are more difficult to run when there is little or no chance for in-person hearings or meetings. (12) Some prosecutors in overwhelmingly Democratic jurisdictions, such as King County in Washington, have opposed release efforts. (13) Additionally, it is not obvious whether, or how long, some of the recent changes to the criminal justice system will last. It may be only a matter of time before the ranks of prisons and jails swell back to the status quo ante. Before the pandemic, there were already signs of backlash against the progressive prosecution movement. (14) It is unclear whether this backlash will grow in the coming months and years.

This Introduction seeks to place the articles in this volume into the context of a post-pandemic world. COVID-19 has accelerated the timetable for many debates that might otherwise have percolated or simply stalled. The viability of progressive prosecution is one such debate. Part I provides a broad overview of progressive prosecution, focusing mainly on the promises made by progressive prosecutors on the way to election and the early returns on those promises. Part II sketches how, in the early days of the COVID-19 pandemic, some state and local officials worked to promote specific goals associated with progressive prosecution, including releasing low-level offenders from jails and reducing arrests. We also consider the extent to which these moves, driven mostly by short-term expediency, are likely to endure after the crisis has passed or receded. We conclude by articulating some of the challenges progressive prosecutors will likely face in the future.

1. WHAT IS "PROGRESSIVE PROSECUTION"?

   The story of the rise of progressive prosecution has been told in many places and in many ways, and it is retold by several of the articles in this volume. (15) The key idea behind progressive prosecution, however, bears some articulation, as it will frame much of what will be discussed in these pages. It is somewhat hoary, but not less true for being so, to say that prosecutors should see that "justice be done." (16) The notion of justice implicit in this dictum implicates the community as a whole--it is a justice for victims of crime as well as for those accused of crimes. Prosecutors win when justice prevails. (17) Conversely, prosecutors do not win when someone is falsely accused, wrongly convicted, or unjustly sentenced.

   Somewhere along the line, the story continues, the notion of being on the side of justice faded as an animating ideal of prosecution. '"Good" prosecution became defined in terms of success rates, and success was defined in terms of convictions and length of sentences. (18) Pursuing justice became more about winning at trial or (more often) in plea bargaining. Elected prosecutors campaigned on their experience processing cases rather than their commitment to treat everyone fairly or promote alternatives to incarceration. (19) Rather than being informed by the needs of the community and the treatment of the accused, justice became "harsh justice." (20) It was against this vision of prosecution that Professor Abbe Smith memorably argued that being a good prosecutor was incompatible with being a good person. (21) Maybe prosecutors had not by themselves created mass incarceration--it took a village (22)--but they were certainly key drivers of the phenomenon. (23) Mass incarceration could not exist without mass prosecution.

   Enter the progressive prosecutors. (24) Progressive prosecutors focused on the power and discretion of prosecutors, which could be wielded either for harsh justice or for mercy and leniency. (25) On the logic of the progressive prosecution movement, lenient prosecutors could make cases go away faster than aggressive defense attorneys. (26) After all, it is far easier to dismiss a case than to fight a rear-guard battle with suppression motions and objections, only to settle on a plea deal. The prosecutor could do more than simply play defense on an uneven playing field. She could resolve cases with the stroke of a pen or even decide not to charge in the first place.

   To be sure, the ideal of progressive prosecution still involves prosecuting. Yet, here, too, progressive prosecutors have articulated different priorities. They devote resources to resolving violent crimes rather than low-level drug, property, and "quality of life" offenses. (27) Their office policies are driven by data, not by perception. The defaults are no longer high bail requests, long sentences, and charging the most serious offenses with the hopes of getting a good plea deal. Perhaps not all defendants should go to prison, even for a short time. For those sentenced to incarceration, shorter sentences might improve overall welfare. The right kind of prosecution policies could lead to "less crime and less incarceration, to the benefit of victims and offenders alike." (28)

   The promise of such reforms could be exaggerated, of course. In many areas, the tactics of so-called progressive prosecution would not, in fact, dramatically change the status quo. Murders, sexual assault, and other violent crimes would still be prosecuted, perhaps even more aggressively. However, progressive prosecutors premised their electoral appeals on confronting mass incarceration rather than being a party to it. As such, many progressive prosecutors ran on platforms that sometimes read like wish lists for criminal defendants. These platforms might be seen as restoring the equilibrium of a system that had become misaligned.

   This shift of focus amounted to something of a sea change, and the progressive prosecutors announced it as such. The typical prosecutor either ran unopposed or based on their record of convicting offenders. (29) Progressive prosecutors could not run the same way since they lacked "tough on crime" records and, in some cases, prosecutorial experience altogether (for example, Philadelphia District Attorney Larry Krasner, one of the highest-profile progressive prosecutors, was a former criminal defense lawyer). (30) Instead, progressive prosecutors ran on what they would do and, once in office, provided detailed policy papers and platforms indicating the reforms they enacted. (31)

   The goals articulated by progressive prosecutors can be placed into three broad categories: reducing the total incarcerated population, reforming the institutions of the criminal justice system, and changing the "tone" of prosecution. (32) These categories are not silos, of course, and certain reforms fit in more than one category. Still, they provide a rough taxonomy of what progressive prosecutors ran on and hoped to accomplish if they were elected (as many were). (33)

   Nearly every progressive prosecutor ran on ending mass incarceration. (34) Interpreted one way, this is an almost impossible goal. Mass incarceration is a complex phenomenon that has unfolded over a long period of time and involved interactions among numerous different actors within the criminal justice system. No prosecutor, no matter how large her jurisdiction, could eliminate it unilaterally. The goal is more...