Progressive prosecutors or zealous defenders, from coast-to-coast

AuthorBrooks Holland and Steven Zeidman
PositionJ. Donald & Va Lena Scarpelli Curran Professor of Legal Ethics and Professionalism at Gonzaga University School of Law/Professor at the City University of New York School of Law and Co-Director of the Defenders Clinic
Pages1467-1494
PROGRESSIVE PROSECUTORS OR ZEALOUS DEFENDERS,
FROM COAST-TO-COAST
Brooks Holland and Steven Zeidman*
ABSTRACT
This Article challenges the narrative that the progressive prosecutor movement
can meaningfully transform the criminal legal system and argues that the myopic
focus on prosecutors as the solution to all that ails this system further diminishes
the critical, and chronically under-resourced, role of the public defender.
In presenting this claim, we do not question the sincerity of many self-styled
progressive prosecutors’ desires to make a differencein the criminal legal sys-
tem or whether these prosecutors have in fact modified norms and practices posi-
tively in some jurisdictions. But in our view, the record reveals mostly modest
changes and substantial, multidirectional resistance to anything more. And this
record should not be a surprise, as prosecutors are executive branch officers
with a job description primarily of charging and punishing crime in an adversa-
rial system. The progressive prosecutor movement nevertheless has become
another way for prosecutor offices to expand their mission, deepen their resour-
ces, and accrue power to do justice.
We emphasize a different path to meaningful change: well-resourced, highly
functioning public defense systems. We do not claim that public defenders are a
panacea or a comparable solution to abolition. But we explore how a greater
commitment to public defense more meaningfully can change the lives of people
and communities impacted by our criminal legal system by empowering the pro-
fessionals with the role and training, the professional incentives, and the institu-
tional values to pursue material and sustainable change. In our view, truly
progressive prosecutors would cede more resources and power to the defense
rather than expand the mission and power of prosecutors.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1468
I. THE LIMITS OF PROGRESSIVE PROSECUTION, FROM COAST TO COAST:
CASE STUDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1470
II. PROSECUTORIAL POWER IS NOT CHANGE. . . . . . . . . . . . . . . . . . . . . . . 1477
* Brooks Holland is the J. Donald & Va Lena Scarpelli Curran Professor of Legal Ethics and Professionalism
at Gonzaga University School of Law. Steven Zeidman is a Professor at the City University of New York School
of Law and Co-Director of the Defenders Clinic. The authors wish to thank Echo D. Fatsis, a student at Gonzaga
University School of Law, for her research assistance. Steven Zeidman is also grateful for the editorial insights of
Mari C. Curbelo, Esq. The authors also thank the American Criminal Law Review at Georgetown University Law
Center for hosting this important symposium, Reform-Minded Prosecution. © 2023, Brooks Holland and Steven
Zeidman.
1467
III. NON-PROSECUTION STRATEGIES FOR TRANSFORMATIONAL CHANGE . . . . . 1484
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1493
INTRODUCTION
This Article critiques the progressive prosecutormovement as a vehicle for
serious change in the criminal legal system and argues that fully resourcing
defenders is a far better strategy.
1
The progressive prosecutor movement has gener-
ated significant political, professional, media, and academic attention in recent
years with hyperbolic claims that progressive prosecutors will end mass incarcer-
ation and restore fairness to the criminal system ‘without changing a single law.’
2
In the movement’s most ambitious form, progressive prosecutors are cast as having
the power to transform the criminal legal system into a true justice system.
3
See Lee Rawles, Can Change Really Come from Within? These 13 Prosecutors Think So, A.B.A. J. (Nov.
30, 2022, 8:44 AM), https://www.abajournal.com/books/article/podcast-episode-183 (reporting on a new book,
Change from Within: Reimagining the 21st-Century Prosecutor, authored by Miriam Aroni Krinsky, Executive
Director of Fair and Just Prosecution, which interviews several progressive prosecutors); Covert, supra note 2, at
202 (identifying a power of progressive prosecutors to include, for example, protect[ing] against convicting the
innocent . . . guard[ing] against racial bias . . . [and] curtail[ing] mass incarceration); Brad Haywood, Busting
the Myth, INQUEST (June 10, 2022), https://inquest.org/busting-the-myth-progressive-prosecutors/ (referring to
and debunking the thesis that communities can completely transform their local criminal courts if they elect
better prosecutors).
Embracing this trend, several prosecutors in recent years have branded themselves
explicitly in their political identities as some form of progressive prosecutor.
4
See generally Covert, supra note 2, at 195200 (listing examples of progressive prosecutors including
where and how they came into office); Wendy N. Davis, Progressive Prosecutors Are Encountering Pushback,
A.B.A. J. (July 21, 2022, 3:50 PM), https://www.abajournal.com/web/article/progressive-prosecutor-pushback.
In sharing our critique, we start by acknowledging the obvious: as progressive
academics and former public defenders, we would rather have a progressive-
minded prosecutor than a traditional law and orderprosecutor or, especially, one
of the many available models of regressive prosecutors who still circulate.
5
See, e.g., Daniel Walters, For Over 12 Years, Prosecutor Haskell’s Wife’s Posts Have Sparked
Controversies About Him and His Office, INLANDER (Feb. 11, 2022), https://www.inlander.com/spokane/for-
over-12-years-prosecutor-haskells-wifes-posts-have-sparked-controversies-about-him-and-his-office/Content?
oid=23261324 (reporting on Spokane County Prosecutor Larry Haskell’s response to public disclosure that his
wife for years had been advocating online as a self-avowed white nationalistand used the n-word to refer to a
Black woman, arguing that while her comments were racist, she was not a racist, and her remarks did not
We
1. No universal definition exists for a progressive prosecutor.See Benjamin Levin, Imagining the
Progressive Prosecutor, 105 MINN. L. REV. 1415, 141618 (2021) (observing that ‘progressive prosecutor’
means many different things to many different people). For our purposes, progressive prosecutor does not mean
simply a prosecutor whose politics are progressive. We understand progressive prosecutor to mean a prosecutor
who claims to seek progressive reform of the criminal legal system from within the power structures of that
system.
2. Darcy Covert, Transforming the Progressive Prosecutor Movement, 2021 WIS. L. REV. 187, 188 (quoting
EMILY BAZELON, CHARGED: THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END MASS
INCARCERATION xxvii (2019)); 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, 131
(2022) (Mass incarceration has long been recognized as one of the most pressing civil rights issues of the
modern era, and progressive prosecution has been heralded as a possible solution.).
3.
4.
5.
1468 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:1467

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