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

• Author: Brooks Holland and Steven Zeidman
• Position: J. 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
• Pages: 1467-1494

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 difference” in 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.

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III. NON-PROSECUTION STRATEGIES FOR TRANSFORMATIONAL CHANGE . . . . . 1484

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1493

INTRODUCTION

This Article critiques the “progressive prosecutor” movement 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 195–200 (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 order” prosecutor 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 nationalist” and 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, 1416–18 (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.

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