Prosecutorial Mutiny

• Author: Cynthia Godsoe and Maybell Romero
• Position: Professor of Law, Brooklyn Law School and Felder-Fayard Associate Professor of Law, Tulane Law School
• Pages: 1403-1430

PROSECUTORIAL MUTINY

Cynthia Godsoe and Maybell Romero*

ABSTRACT

Elected progressive prosecutors face resistance on many fronts to their

reforms of the overly harsh and racist criminal legal system. One of these forms

of resistance is particularly corrosive—internal dissension by line prosecutors.

This resistance flummoxes criminal legal system reform and undemocratically

interferes with the will of the electorate. This resistance, which we term “prose-

cutorial mutiny,” is also unethical under the American Bar Association’s Model

Rules. Given the pervasiveness of such mutiny alongside other sources of back-

lash to criminal system change, we argue that progressive prosecutors are not

the panacea to all the criminal legal system’s ills as many have hoped, and that

resources should be focused on supporting other sources of change to the system.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1404

I. PROSECUTORIAL MUTINY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1406

A. Typology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1406

1. Suing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1406

2. Filing Ethics Complaints . . . . . . . . . . . . . . . . . . . . . . . . 1410

3. Opposing Publicly in Other Ways . . . . . . . . . . . . . . . . . . 1412

4. Undermining Internally . . . . . . . . . . . . . . . . . . . . . . . . . 1414

5. Participating in Mass Resignations . . . . . . . . . . . . . . . . . 1414

B. Some Commonalities Among These ‘Mutineers’ . . . . . . . . . . . 1415

II. ETHICAL AND DEMOCRATIC PROBLEMS WITH PROSECUTORIAL MUTINY . . . 1419

A. Historical Context of Prosecutors and Their Ethical Duties. . . 1419

B. Prosecutorial Mutiny’s Relationship to the Violation of Ethical

Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1421

C. Prosecutorial Mutiny Undermines Democracy and the Rule of

Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1424

III. IS MUTINY DESIRABLE WHEN FROM THE LEFT?. . . . . . . . . . . . . . . . . . 1426

A. Historical Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1426

B. “Progressive” Line ADAs in “Traditional” Offices . . . . . . . . 1427

1. Recent Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1427

* Professor of Law, Brooklyn Law School and Felder-Fayard Associate Professor of Law, Tulane Law

School. For thoughtful comments, we owe thanks to the participants at the 2022 Criminal Justice Ethics

Schmooze and ACLR symposium on Reform-Minded Prosecution. We are grateful for excellent research

assistance from Nicholas Connolly, Caroline Golub, and Eliza Reinhardt, and also to the editors of the American

Criminal Law Review, for organizing such an engaging symposium and for their thoughtful editing. © 2023,

Cynthia Godsoe & Maybell Romero.

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1429

INTRODUCTION

A growing movement of progressive prosecutors is working to undo, or at least

remediate, decades of racist, costly, and harmful criminal legal policies that have

subjected communities of color and poor people to overcriminalization and overin-

carceration.

1

Progressive prosecutors have run and won on mandates to change the

way the public and policymakers think about justice and safety, such as declining

to move forward with certain categories of crimes, reforming bail, and making

other changes to the criminal legal system to make it more data-driven, equitable,

and effective in improving public safety and recidivism.

2

Nationwide, district attorneys (“DAs”) who have attempted to make even mod-

erate reforms have faced tremendous pushback from police, judges, and even other

prosecutors.

3

The battle is still raging but continues despite some high-profile set-

backs, such as the June 2022 recall of San Francisco DA Chesa Boudin. The move-

ment continues to grow, with progressive prosecutors elected in numerous

jurisdictions in the 2022 midterm elections.

4

See Matthew Impelli, Progressive Prosecutors Win in Midterms Despite GOP’s Attacks on Crime,

NEWSWEEK (Nov. 9, 2022), https://www.newsweek.com/progressive-prosecutors-election-outcomes-nationwide-

wins-1757651; see also Camille Squires & Daniel Nichanian, Minneapolis Elects a Career Public Defender as Its

New Prosecutor, BOLTS (Nov. 9, 2022), https://boltsmag.org/minneapolis-public-defender-turned-prosecutor/.

While police unions and associations opposed reformist candidates in the past,

for police to be joined by their district attorney counterparts like the Los Angeles

Association of Deputy District Attorneys (“ADDA”) and the National District

Attorneys Association (“NDAA”), is a recent and alarming phenomenon.

5

For the ADDA, see Jeremy B. White, Los Angeles prosecutors overwhelmingly want to oust their

progressive boss, POLITICO, (Feb. 22, 2022), https://www.politico.com/news/2022/02/22/los-angeles-prosecutors-

progressive-da-gascon-00010798. On the other hand, the NDAA has attempted to dilute the meaning of “progressive”

when referencing progressive prosecutors. In his inaugural address, board president of the NDAA Duffie Stone

explained that, in his view, all prosecutors are progressive:

If you’re asking me about somebody being progressive, the way I define that is someone who

wants to innovate, somebody who wants to make the system better. Reform? Absolutely. I don’t

know a single prosecutor that didn’t take the helm of their office with the thought “I’m gonna

make it better than it was.” Every prosecutor in this room, every prosecutor I know has taken over

their office and said “I want to make it better. I want to make it more efficient. I want to make it

fairer.” Every one. So if, Mr. Washington Post, you’re asking me what do I think about progres-

sive prosecutors, I say “Thank you. Prosecutors are absolutely progressive.”

Why

1. See Benjamin Levin, Imagining the Progressive Prosecutor, 105 MINN. L. REV. 1415, 1424 (2021)

(describing the “progressive prosecutor” movement).

2. See Cynthia Godsoe, The Place of the Prosecutor in Abolitionist Praxis, 69 UCLA L. REV. 164, 178–82

(2022) (providing examples of such elected prosecutors); Angela J. Davis, Reimagining Prosecution: A Growing

Progressive Movement, 3 UCLA CRIM. JUST. L. REV. 1, 6–15 (2019) (same).

3. Somewhat ironically, many changes these prosecutors are making are not radical at all, more just meeting a

low bar of ethical and empirically based policy. See, e.g., Brooks Holland & Steven Zeidman, Progressive

Prosecutors or Zealous Defenders, from Coast-to-Coast, 60 AM. CRIM. L. REV. 1467, 1471–73 (2023) (discussing L.

A. District Attorney George Gascón’s career and criticism of him from the left). See also Maybell Romero, Moving Past

“Progressive” Prosecution in the Wake of the Trump Administration, 69 WASH. U. J. L. & POL’Y 275, 284 (2022).

4.

5.

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