PROGRESSIVE PROSECUTORIAL ACCOUNTABILITY.

• Author: Laurin, Jennifer E.

Introduction 1067 I. The Current Accountability Landscape 1073 A. Legal Accountability 1073 B. Bureaucratic Accountability 1076 C. Political Accountability 1077 D. Conclusion 1078 II. Progressive Prosecutorial Accountability Sketched 1078 A. The Progressive Pushback on Legal Accountability 1079 B. Progressive Prosecutorial Accountability 1083 III. Progressive Prosecutorial Accountability Tradeoffs 1088 Conclusion 1092 INTRODUCTION

Two dynamic forces are currently reshaping the landscape of prosecution in the United States. One is the rise within the last decade of the "progressive prosecutor" movement, particularly among state and local prosecutors. (1) The movement emerged against the backdrop of longstanding criticism of the prosecutorial profession as a site of unchecked power wielded in a manner that has predictably driven our country's carceral explosion. (2) From criticism of virtually unfettered discretion to select among or decline charges, to prosecutors' outsized influence over pretrial release and sentencing, to instances of flouting what ethical and constitutional rules do them, calls to reign in prosecutorial power have long been a mainstay of the academic literature and advocacy circles. (3) Progressive prosecution has taken a different tack, however, hoisting the profession on its own petard by announcing a commitment to exercising broad discretion in a manner that reexamines charging, bail and sentencing practices, and other practices in a manner aimed at curbing punitive excess and racial disparities in the criminal legal system. (4) Common progressive prosecutor policy priorities include expanding diversion programs, reducing pretrial detention recommendations and use of cash bail, deprioritizing prosecution of certain non-violent offense, and creating conviction integrity units to review potential wrongful convictions. (5)

A second, more recent and still-emergent force also joins the chorus of concern for prosecutorial power, but in a quite different key. For perhaps the first time in modem memory, political forces have aligned to enact measures to reign in prosecutorial authority and hold prosecutors accountable for misuse of their power. The mechanisms are diverse. In Iowa, lawmakers enacted legislation defunding any district attorney's office that took "any action" that "discourages the enforcement of state, local, or municipal laws." (6) In Utah, prosecutors are now prohibited from filing Class B or C misdemeanors if evidence in the case supports filing a felony charge. (7) States have expanded the authority of state attorneys general to overrule a local prosecutor's decision to decline prosecution and invoked gubernatorial power to remove prosecutors based on their charging practices. (8) And in Georgia, legislators have created a new Prosecuting Attorneys Oversight Commission with power to "discipline, remove, and cause involuntary retirement of appointed or elected district attorneys" who engage in a range of prohibited acts. (9) Prosecutorial accountability is having a moment.

The two forces are deeply interrelated, but in a somewhat counterintuitive and, this Essay argues, illuminating way. Politically, progressive prosecution has taken hold mostly in Democratic strongholds and has been associated with broader calls to shrink the footprint of the American criminal legal system by reform to a variety of institutions and practices beyond the prosecutor's office itself--policing, pretrial detention practices, excessive sentencing, and so forth. (10) In recent years, many critics of the American criminallegal system have included weak prosecutorial accountability--their absolute immunity from suit for misconduct in the course of prosecution being one contributor--on the list of contributors to mass incarceration, racial disparities, wrongful convictions, and other ills. (11) But the recent surge in energy around curbing prosecutorial authority have not emerged from these corners. Rather, its point of origin is the political right, and it is sounding in the register of law-and-order politics and conservative political ideology in a direct challenge to the aims and tactics of the progressive prosecution movement. (12) Texas's Republican Lieutenant Governor Dan Patrick provided a representative rebuke and threat in the weeks preceding the start of Texas's 2023 legislative session, calling out district attorneys who "just won't charge anyone with a crime," and calling on state lawmakers to "figure a way within the law and within the Constitution either to move those cases to another district attorney in another county, or to recall those district attorneys...." (13) An unsuccessful bill filed in Indiana's 2022 legislative session would have created a special counsel mechanism to supersede a local prosecutor's decision not to prosecuted, and its sponsor named "social justice prosecutors," including those who had pledged not to prosecute abortion-related offenses, as the bill's target. (14)

However bold an assault on the tradition of prosecutorial discretion in charging and non-charging, the Republican effort to tamp down on "progressive" charge declination is tactically unsurprising in a political moment where the right has reclaimed its role as champion of law and order. (15) This is especially so as new crimes increasingly target conservative political red meat like abortion, voting, and gender identity; blue city prosecutors' threatened nullification of these crimes through non-prosecution now cuts to the quick of Republican political priorities. What is more interesting, however, is what the conservative move to check prosecutorial power illuminates about the progressive prosecution movement's complex relationship to accountability. That is the relationship this Essay aims to examine and assess.

While there is already ample scholarly examination of this still-nascent movement, the focus has by in large been on the substantive dimensions of what the movement has to offer: the merits, utility, or legitimacy of the various reforms to how adjudication of a criminal case will be approached by a prosecutor's office. (16) Far less focused attention has been paid to the question of how the movement envisions accountability. This is an important oversight given the importance of accountability questions in a democratic system generally, and the centrality of the idea of accountability, or lack thereof, in debates about prosecutorial identity, efficacy, and legitimacy. (17) Prosecutors, including progressive ones, wield enormous power, threaten dire and destructive consequences for peoples' lives. How and the degree to which they are checked in that work matters from the standpoint of ensuring accuracy and fairness. Moreover, prosecutors, especially progressive ones, purport to do their work in a register of not just legal but moral authority. In a democratic system, ensuring that the work is done in a manner that comports with the will of the public and not simply the idiosyncratic view of an elected prosecutor or their subordinates is a core concern. Finally, inattention to accountability will curtail the contributions of the progressive prosecution movement itself. Self-identified progressive prosecutors who neglect attention to mechanisms of accountability risk alienating those potentially aligned with their substantive goals who justifiably will demand that a new breed of prosecutor move beyond the "trust us" paradigm that characterizes the profession traditionally. (18) And sidelining oversight questions from the currently energized reform conversation leaves the accountability landscape disturbingly bare if, or more likely when, the political pendulum swings in the other direction. (19)

Part I of the Essay sets the stage by sketching existing potential mechanisms for holding prosecutors accountable. (20) Borrowing from the public administration literature, it assesses the landscape of legal, bureaucratic, and political accountability regimes. (21) It comes out where most other commentators have: There is good reason to characterize the status quo of prosecutorial accountability--particularly outside the federal system--as quite weak along all of these dimensions. Part II then asks how the progressive prosecution movement grapples with this accountability deficit. (22) Examining publications, statements, and actions within the movement, a portrait emerges of both a negative vision--specifically, a rejectionof legal accountability mechanisms--and an affirmative vision--namely, bureaucratic accountability to leadership within the prosecutor's office and political accountability to the voting public. Indeed, strategies promoted for and adopted by many progressive prosecutors take aim at many of the conditions that the academic literature has long lamented as stunting electoral and bureaucratic accountability. (23)

Finally, Part III delivers an ambivalent assessment of this landscape. (24) It identifies predictable weaknesses in bureaucratic and political accountability mechanisms in the particular context of progressive prosecution, including the worries that in practice they may operate both too weakly and too effectively. Some design improvements flow from these diagnoses, including addressing bureaucratic insularity, attending to the design of data transparency, and prioritizing production of information about prosecutorial inaction. But while acknowledging the potential promise of progressive prosecutorial accountability, Part III also urges greater, albeit judicious and deliberate, openness to legal scrutiny of prosecutorial conduct than what the progressive prosecutorial movement has contemplated to date.

1. THE CURRENT ACCOUNTABILITY LANDSCAPE

   This Part surveys existing mechanisms by which American prosecutors are held "accountable"--meaning, that their performance along any dimension is assessed by another with the power to attach some consequence to their assessment...