PROSECUTING THE CRISIS.

• Author: Levin, Benjamin

Introduction 989 I. Criminal Law and Crises 992 A. Crisis Narratives and Crime Control as Governance 993 B. Prosecuting the Crises 996 II. A Case Study in Crisis 998 III. (The Problem of) Prosecution as Governance 1005 A. Tough-on-Crime Backlash 1006 B. Entrenching Criminal Institutions 1008 Conclusion 1012 INTRODUCTION

Over the past decade, activists and academics have celebrated the rise of the so-called "progressive prosecutor" movement. (1) District attorney (DA) candidates--often former public defenders or civil rights lawyers--have promised to use prosecutorial discretion to address the injustices of the criminal system. (2) A proliferation of such campaigns, and the electoral successes of some of these candidates have raised questions about progressive prosecution: what does it actually mean to be a progressive prosecutor? (3) Does progressive prosecution work? (4) Do progressive candidates follow through on campaign promises? (5) And, how enthusiastic should defense attorneys, reformers, and critics of the carceral state be about progressive prosecution? (6) The election of "progressive prosecutors" also has led to backlash, with resistance from police departments and efforts to impeach or recall prosecutors seen as "soft on crime." (7)

In this Essay, I examine media and popular reactions to progressive prosecutors and what those reactions reveal about societal understandings of the prosecutorial function. Looking at media coverage of the recall election and ouster of public defender-turned-San Francisco-DA Chesa Boudin as a case study, I focus on popular expectations of what it means to be a prosecutor. I argue that the specter of governmental failure and urban disorder continues to haunt contemporary discussions of prosecutorial policies. And, the common focus on prosecutors as either the solution to or cause of social problems reflects the continued resonance of a model of "governing through crime." (8)

My claim is not that there is a single explanation for Boudin's recall. There is good reason to be wary of overemphasizing the national lessons from a single local election. (9) Instead, I see media treatment of Boudin's time in office and recall as useful illustrations of popular discourse about the promises--and limits--of "progressive" prosecution. Media narratives about declining urban quality of life frame the issues--from homelessness and drug addiction to interpersonal violence--as crises that must be resolved via criminal law. Whether prosecutors are imagined as tough-on-crime punishers tasked with administering harsh justice or progressive regulators tasked with providing services and addressing structural inequality, they remain some of the most visible state actors on the local level. And so, for each issue--each crisis--the prosecutor becomes the responsible party and the face of the state's response.

Ultimately,I express concern about an overreliance on prosecutors--whether understood in traditional "tough on crime" terms or "progressive" ones. I argue that the common understanding of the DA's office as the place where the government solves social problem will remain a significant impediment to any project of dismantling the carceral state.

My argument unfolds in three Parts. In Part I, I set out the theoretical claim that the language of "crisis" has shaped U.S. crime policy and, by extension, the contemporary understanding of prosecutors' social and political functions. (10) Drawing on the work of cultural theorist Stuart Hall and criminologist Jonathan Simon, I argue that criminal law and prosecution have come to operate as primary sites of governance--as the vehicles for the state to respond to social problems." And, I argue that the turn to criminal law and the demand for harsher punitive policies often come in response to public perception of a crisis or exceptional amount of crime. (12)

In Part II, I describe media coverage of the election and subsequent recall of public defender-turned-San Francisco-DA Chesa Boudin as a case study of this phenomenon. (13) I suggest that Boudin's election was commonly characterized as responsive to crises (e.g., the racial disparities of mass incarceration and harms done by law enforcement), but so too was his ouster (e.g., the rise in crimes against Asian Americans and increases in homelessness and associated "quality of life" offenses).

In Part III, I step back to argue that a path forward towards decarceration and dismantling the carceral state requires a different frame and different understanding of prosecution. (14) Rather than arguing for "progressive prosecution" or DAs' offices as promising sites for social change, I argue that DAs' offices must recede as sites of governance. Without rejecting the DA's office as the place to solve social problems and respond to crises of governance, I argue, we will not be able to escape the politics of crime control that have led to the current moment of hyper policing and hyper-incarceration.

1. CRIMINAL LAW AND CRISES

   In academic and popular discourse, criminal law is often framed as the state's response to crises. Criminal law and punishment address the small-scale crisis (e.g., an individual case of interpersonal violence) and the large-scale crisis (e.g., widespread interpersonal violence in the community). This crisis frame and "[t]he language of exceptional misbehavior justifies punishment, new laws, and new methods of social control." (15) There certainly are other state (and private) institutions designed to respond to wrongdoing, harm, and risk creation. But, criminal law is frequently understood as exceptional--as the response that targets the worst conduct, that carries the greatest moral condemnatory force, and that imposes the most severe sanctions. (16) Criminal law and the discourse surrounding crime therefore imply that there are "normal" social problems that may be regulated but that there are exceptional areas, exceptionally bad conduct, and exceptionally serious problems that demand a specific, punitive response. (17) In the U.S. system, it is the prosecutor who operates as the state's chief law enforcer and therefore the actor responsible for managing crises and responding to exceptional dangers.

   1. Crisis Narratives and Crime Control as Governance

      Writing in the late 1970s, cultural theorist Stuart Hall and a group of scholars from the Centre for Contemporary Cultural Studies at the University of Birmingham framed questions of crime policy in terms of media portrayals and popular consciousness. (18) They argued that media should be central to our understanding of crime and law enforcement and how they are constructed in the cultural imagination. (19) In their influential book, Policing the Crisis: Mugging, the State, and Law and Order, Hall and his coauthors focused on the contemporary British media coverage of muggings. (20) Through a close analysis of reports and media narratives, they argued that media had constructed a "crisis," tapping into raced and classed fears of urban disorder. (21) As the state and the media amplified "street crime," they argued, "society [came] to perceive crime in general, and 'mugging' in particular, as an index of the disintegration of the social order." (22) The political reaction to these narratives was an amplification of state violence, particularly against Black people and poor people. (23)

      Hall's work has enjoyed renewed interest of late, as U.S. legal commentators have adopted an increasingly critical posture with respect to police and criminal legal institutions. (24) But, Hall's insights into how the relationship among ideology, culture, and criminal law have been applied perhaps most comprehensively in the U.S. context by criminologist Jonathan Simon. Simon has argued that criminal law has become the dominant tool that U.S. state actors use to respond to social problems. (25) As Simon describes it, society "governs through crime." (26) That is, "people are seen as acting legitimately when they act to prevent crimes or other troubling behaviors that can be closely analogized to crimes." (27) Therefore, Simon suggests that "we can expect people to deploy the category of crime to legitimate interventions that have other motivations." (28) And as a result, "the technologies, discourses, and metaphors of crime and criminal justice have become more visible features of all kinds of institutions, where they can easily gravitate into new opportunities for governance." (29)

      In a neoliberal (or, perhaps, a post-neoliberal) moment when the welfare state has shrunk, criminal institutions have come to replace it. (30) Policing and prosecution have remained state functions largely insulated from other deregulatory impulses. So, where legislative reticence has defined much social policy since at least the Reagan years, criminal law and criminal legal institutions have thrived. Fed by the language of crisis and fear, the modern U.S. state does much of its governing through crime.

      Two decades into the twenty-first century, then, Hall's insight about the centrality of media to our cultural understanding of crime remains important. The changing media landscape plays a role in constructing crisis narratives and crime scares--and in amplifying perceived public concerns. (31) Certainly, long-established, or so-called "legacy," media outlets continue to play a significant role in fomenting fear of crime. But the rise of social media provides new dimensions in the construction of crime scares. (32) And, in particular, there's something powerful and troubling about the way that legacy media organizations aggregate and feed off of social media posts. The use of one-off stories or socially salient anecdotes is hardly a new practice. In the 1970s, Hall made much of letters to the editor as drivers of the British mugging panic. (33) Yet the contemporary aggregation of such stories easily allows for the impression of widespread phenomena. Anecdotes become...