Progressive prosecutors: winning the hearts and minds of line prosecutors

• Author: Laurie L. Levenson
• Position: Professor of Law & David W. Burcham Chair in Ethical Advocacy, Loyola Law School, Los Angeles
• Pages: 1495-1516

PROGRESSIVE PROSECUTORS: WINNING THE HEARTS AND

MINDS OF LINE PROSECUTORS

Laurie L. Levenson*

“The difficulty lies, not in the new ideas, but in escaping from the old ones .. . .”

1

ABSTRACT

The progressive prosecutor movement offers many critical proposals to reform

our criminal justice system. However, it has not been able to fully accomplish its

goals in many jurisdictions because the newly elected prosecutors have faced

pushback, not just from hardline opponents to their reforms, but from the deputy

prosecutors in their own offices. For there to be real change in prosecutors’ offi-

ces, progressive prosecutors must win the hearts and minds of their own staff.

Progressive prosecution is a cultural change that requires working with, not

against, the rank and file of prosecution offices. To accomplish this, it is not

enough that new directives are issued. Prosecutors must engage all their stake-

holders, especially the line prosecutors who will be expected to implement the

new directives. This requires educating the line prosecutors about the reasons

reforms are needed, listening to their concerns, being open to modifying new pol-

icies depending on the operations and laws of the jurisdiction, and finding com-

mon ground with groups that have not yet joined the progressive prosecutors’

movement. To meet this challenge, prosecutors would be well advised to learn

how the business world successfully navigates onboarding new leadership teams.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1496

I. LOS ANGELES: A CASE STUDY IN “PROGRESSIVE PROSECUTION”. . . . . . . 1503

A. Gascón’s Reform Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1506

B. Changing the Culture of a District Attorney’s Office . . . . . . . . 1510

II. A NEW APPROACH FOR PROGRESSIVE PROSECUTORS . . . . . . . . . . . . . . . . 1513

A. Create Alliances and Helpful Dialogue . . . . . . . . . . . . . . . . . . 1514

B. Practical Steps for Success . . . . . . . . . . . . . . . . . . . . . . . . . . . 1514

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1515

* Professor of Law & David W. Burcham Chair in Ethical Advocacy, Loyola Law School, Los Angeles.

Professor Levenson served as an Assistant United States Attorney from 1981-89 and founded the Loyola Project

for the Innocent in 2010. I want to thank the organizers of this symposium and my amazing colleagues who

regularly write in the area of progressive prosecution: Professors Justin Murray, Cynthia Godsoe, Angela Davis,

Bruce Green, Steve Zeidman, Ellen Podgor, Brooks Holland, Abbe Smith, Catherine Hancock, Ronald Wright,

Rebecca Roiphe and Maybell Romero. I also am grateful to the editors, organizers, and staff of the American

Criminal Law Review. © 2023, Laurie L. Levenson.

1. JOHN MAYNARD KEYNES, THE GENERAL THEORY OF EMPLOYMENT, INTEREST, AND MONEY 4 (1936).

1495

INTRODUCTION

It is not enough to have good ideas. It is not even enough to be committed to

fairer prosecutions. And it certainly is not enough to be labeled a “progressive

prosecutor.” To make real change, someone presenting themself as a “progressive

prosecutor” must have the leadership abilities and management skills to inspire

and guide their rank-and-file prosecutors in embracing and implementing their pro-

posed reforms.

2

While there is no one definition of a “progressive prosecutor,” certain criteria

have become associated with that term. They are presented in more detail in this

Article. Briefly, however, the description is most often applied to prosecutors who

understand how the criminal justice system has been used in unfair ways and has

resulted in injustices, especially to defendants of color. “[Progressive prosecutors]

are committed to doing whatever they can, consistent with public safety, to make

the system fairer for all.”

3

As recent events have shown,

4

Since 2020, reform prosecutors have faced a series of challenges. Los Angeles District Attorney George

Gascón faced recall efforts; Chesa Boudin, District Attorney of San Francisco, was actually recalled; Florida

State Attorney Andrew Warren was suspended from his position; Manhattan District Attorney Alvin Bragg was

threatened with removal; and Philadelphia District Attorney Larry Krasner was initially impeached by the

Pennsylvania House of Representatives. See generally Brooks Holland & Steven Zeidman, Progressive

Prosecutors or Zealous Defenders, From Coast-to-Coast, 60 AM. CRIM. L. REV. 1467 (2023) (detailing actions

taken against Gascón, Boudin, Bragg and Warren); see also Jacey Fortin, Pennsylvania House Votes to Impeach

Philadelphia’s Progressive D.A., N.Y. TIMES (Nov. 16, 2022), https://www.nytimes.com/2022/11/16/us/krasner-

impeached-pennsylvania.html.

to be effective in reform-

ing a prosecutor’s office, it is critical that the leadership of that office win the hearts

and minds of their own staff. Directives from above do not work unless the rank-

and-file prosecutors who are in the courtrooms are committed to the proposed

reforms.

A prime example of the problems faced by prosecutors who fail to gain the sup-

port of their line prosecutors is what occurred in the Los Angeles County District

Attorney’s Office. On December 7, 2020, George Gascón became the District

Attorney for Los Angeles County. He ran as a reform candidate

5

Gascón’s four pillars of reform included: (1) holding the police accountable, (2) ending the prosecution of

children as adults, (3) abolishing the death penalty, and (4) limiting outdated sentencing enhancements. He also

endorsed clearing of marijuana convictions, removing cash bail for misdemeanor and nonserious or nonviolent

felony offenses, and generally addressing mass incarceration, racism, and social systemic inequities. See STAND

WITH DIST. ATT’Y GEORGE GASCÓN, https://standwithgascon.org/ (last visited Feb. 2, 2023); GEORGE GASCÓN L.

A. DIST. ATT’Y, https://georgegascon.org/ (last visited Feb. 2, 2023); GEORGE GASCÓN L.A. CNTY. DIST. ATT’Y,

https://da.lacounty.gov/sites/default/files/pdf/DA-Bio_English_03_2022.pdf (last visited Feb. 2, 2023).

against two-term

2. There have been many fine and dedicated reform prosecutors in the last two decades. To learn more about

them, their visions, their struggles, and their accomplishments, see generally MIRIAM ARONI KRINSKY, CHANGE

FROM WITHIN: REIMAGINING THE 21ST-CENTURY PROSECUTOR (2022); KIM TAYLOR-THOMPSON & ANTHONY C.

THOMPSON, PROGRESSIVE PROSECUTION: RACE AND REFORM IN CRIMINAL JUSTICE (2022); see also EMILY

BAZELON, CHARGED: THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END MASS

INCARCERATION 147–73 (2019).

3. Angela J. Davis, The Benefits of the Progressive Prosecutor Movement, THE CHAMPION, May 2022, at 12,

13.

4.

5.

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