Progressive prosecution or zealous public defense? The choice for law students concerned about our flawed criminal legal system

• Author: Abbe Smith
• Position: Professor of Law, Director of the Criminal Defense & Prisoner Advocacy Clinic, Co-Director of the E. Barrett Prettyman Fellowship Program, Georgetown University Law Center
• Pages: 1517-1538

PROGRESSIVE PROSECUTION OR ZEALOUS PUBLIC DEFENSE?

THE CHOICE FOR LAW STUDENTS CONCERNED ABOUT OUR

FLAWED CRIMINAL LEGAL SYSTEM

Abbe Smith*

ABSTRACT

This Article addresses a question asked by many law students concerned about

our flawed criminal legal system: should they become a prosecutor in an office

run by a progressive prosecutor, or a public defender in an office devoted to zeal-

ous, client-centered (or holistic) defense? The Article starts with an anecdote

about Philadelphia District Attorney Larry Krasner’s road show to recruit law

students and young lawyers, and then proceeds as follows: First, this Article

makes the case for progressive prosecution; then, it makes the case for zealous

indigent defense; then, it identifies the obstacles and challenges for both kinds of

lawyers and offers a brief comment on prosecutor and defender “personalities;”

finally, it offers thoughts on who, in the end, has more power to make meaningful

change.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1517

I. THE CASE FOR PROSECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1520

II. THE CASE FOR PUBLIC DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1525

III. THE OBSTACLES AND CHALLENGES FOR PROGRESSIVE PROSECUTION AND

ZEALOUS INDIGENT DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1527

A. Obstacles and Challenges for Progressive Prosecution . . . . . . 1527

B. Obstacles and Challenges for Zealous Public Defense . . . . . . 1533

C. A Comment about Personality . . . . . . . . . . . . . . . . . . . . . . . . 1535

CONCLUSION: WHO HAS MORE POWER?. . . . . . . . . . . . . . . . . . . . . . . . . . . 1536

INTRODUCTION

When he was first elected, the now twice-elected, Philadelphia District Attorney

Larry Krasner

1

See Katie Meyer, Philly DA Larry Krasner Cruises to Reelection Victory, WHYY (Nov. 2, 2021), https://

whyy.org/articles/philly-da-larry-krasner-cruises-to-reelection-victory/ (reporting that Krasner soundly beat both

an unconventional and poorly funded Republican rival in the general election and a more conventional

Democratic rival during the primary race).

had a traveling roadshow. The aim was recruitment

2

See Chris Palmer, Larry Krasner’s First Year as Philly DA: Staff Turnover, Fewer Cases, Plenty of

Controversy, PHILA. INQUIRER (Jan. 6, 2019), https://www.inquirer.com/news/larry-krasner-philadelphia-district-

of law students

and lawyers to what would be one of the country’s first truly progressive

* Scott K. Ginsburg Professor of Law, Director of the Criminal Defense & Prisoner Advocacy Clinic, Co-

Director of the E. Barrett Prettyman Fellowship Program, Georgetown University Law Center. With thanks to

Abigail Van Buren and Catherine Winslow for helpful research assistance. © 2023, Abbe Smith.

1.

2.

1517

attorney-staff-reform-cases-first-year-20190106.html (noting Krasner’s national recruitment efforts amid

turnover of thirty percent of the office’s staff).

prosecutor offices.

3

Many scholars and commentators have offered definitions of the progressive prosecutor. See, e.g., Darcy

Covert, The False Hope of the Progressive Prosecutor Movement, THE ATLANTIC (June 14, 2021), https://www.

theatlantic.com/ideas/archive/2021/06/myth-progressive-prosecutor-justice-reform/619141/ (describing a

commitment to reducing mass incarceration, ending harsh sentencing practices, being mindful of the role

prosecutorial misconduct plays in wrongful convictions, and eliminating racial disparities at all stages of the

criminal legal process); Angela J. Davis, Reimagining Prosecution: In Search of the True Progressive, 3 UCLA

CRIM. JUST. L. REV. 1, 27 (2019) (arguing against a “litmus test or list of requirements for progressive

prosecutors” and urging support for prosecutors committed to reducing the incarceration rate and ending racial

disparities in the system); Paul Butler, Progressive Prosecutors Are Not Trying to Dismantle the Master’s House,

and the Master Wouldn’t Let Them Anyway, 90 FORDHAM L. REV. 1983, 1988 (2022) (describing a commitment

to reducing incarceration, holding police officers accountable, reallocating funds to public services, declining to

prosecute low-level offenses, expanding diversion programs, and appointing reform-minded people to critical

positions in the office); Avanindar Singh & Sajid A. Khan, A Public Defender Definition of Progressive

Prosecution, 16 STAN. J. C.R. & C.L. 475, 476–77 (2021) (describing a more extensive and specific list of what it

means to be progressive from a public defender perspective); Allison Young, The Facts on Progressive

Prosecutors, CTR. FOR AM. PROGRESS (Mar. 19, 2020), https://www.americanprogress,org/article/progressive-

prosecutors-reforming-criminal-justice/ (describing a commitment to improving public safety, reducing mass

incarceration, and refusing to prosecute cases brought by police officers with a history of dishonesty). This paper

takes a broad view of progressive prosecution instead of getting mired down in definitions.

One of Krasner’s stops was at Georgetown University Law

Center, where I teach. His central pitch was kind of insulting. As part of his exhor-

tation to join his office, he said to law students: “If you want to be a hippie, wear a

beret, and have no power, be a public defender. But if you want to have real power

to effect change in the criminal legal system, join me.”

4

The beret part was especially annoying. What decade are we in? I’ve been an in-

digent criminal defense lawyer—first a public defender (at the same office where

Larry Krasner began his legal career)

5

and now a law professor running a criminal

law clinic—for 40 years, and I’ve never worn a beret. My clinic students knew

how I felt about that beret comment. They gave me a bright red beret as an end-of-

the-year gift.

I had no problem with the “hippie” reference if what Krasner meant was some-

one with a countercultural or antiauthoritarian bent. This would be a fair character-

ization of a lot of public defenders.

6

On the other hand, we are lawyers—a

conventional profession if ever there was one. Our hippie hearts are not always

apparent under our suits.

3.

4. According to colleagues at other law schools, this was not unique to Georgetown but part of his standard

stump speech.

5. We are both alumni of the Defender Association of Philadelphia. I was a Trial Attorney, Special Defense

Unit Attorney, and then Senior Trial Attorney from 1982 to 1990.

6. See ABBE SMITH, GUILTY PEOPLE 142 (2020) (describing the prototypical defender as “antiauthoritarian,

nonconformist, irreverent, skeptical, slightly voyeuristic, slightly exhibitionist, and resilient”); see also Barbara

Allen Babcock, Commentary, Defending the Guilty, 32 CLEVELAND ST. L. REV. 175, 175 (1983) (noting that

“[c]riminal defense work takes a peculiar mind-set, heart-set, soul-set”); Mary Halloran, An Ode to Criminal

Lawyers, CALIFORNIA LAWYER, June 1998, at 96 (describing criminal defense lawyers as “eccentric” and a

“breed unto themselves”).

1518 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:1517