PROSECUTORS AS PARTISANS.

• Author: Ouziel, Lauren M.

Introduction 1094 I, Politics and Prosecutors: A Brief History 1096 A. A Bipartisan Space 1096 B. Reactive Prosecutors 1099 II. The Current (and Future?) Politics of Prosecution: Rising Partisanship and Proactive Prosecutors 1100 III. Assessing Partisan Prosecution, and the Path Forward 1105 A. Upsides and Downsides 1105 1. The Upsides of Partisan Prosecution 1105 2. The Downsides of Partisan Prosecution 1107 B. Future Pathways 1111 1. Changing the Message 1112 2. Changing the audience 1113 Conclusion 1116 INTRODUCTION

Prosecution in the United States has long been inseparable from politics. The relationship is embedded in the structure of American criminal enforcement, characterized by a vast array of penal statutes, limited enforcement capacity, and elected or politically appointed prosecutors marrying the two. For nearly half a century, from the late 1960s though roughly the early aughts, two key features characterized the politics of criminal enforcement. First, it was largely bipartisan. Democrats and Republicans, Liberals and Conservatives alike shared a vision of how to approach crime and punishment--where to invest resources, what crimes and offenders to prosecute, and how to approach sentencing--even if the motives underlying that vision differed. (1) Second, prosecutors played a mostly reactive role: they tended to respond to the politics of criminal enforcement rather than drive it. (2)

In recent years, these two defining features of prosecutorial politics have receded. After an initial bipartisan shift in the politics of crime--from emphasis on broad and aggressive enforcement and reduced sentencing discretion to more targeted enforcement and increased sentencing discretion --the bipartisan consensus has begun to unravel. (3) Perhaps more importantly, prosecutors are no longer simply reacting to the politics of criminal enforcement; they are, in many ways, making it. (4)

On the left, the progressive prosecution movement has become a driving force in these politics, seeking to change both the targets of prosecution and the penalties they face even in the absence of legislative reforms. (5) An abolition movement is also building, as are calls for reducing spending on policing and incarceration. (6) In the center and on the right, criminal justice agendas are increasingly defined in opposition to these forces. (7) This burgeoning rift reflects, and amplifies, larger partisan cleavages in American society. If these trends continue, the future of prosecution (on which the organizers of this symposium have asked us to reflect) may well be not one future but multiple ones, clustered along different points on the political spectrum and different places on the American map.

This Essay develops these descriptive claims and considers their normative implications. A more partisan politics of prosecution could pay dividends in the form of more transparent political tradeoffs, greater public engagement and participation, and enhanced local political agency. But it also carries risks--to societal cohesion, critical assessment, stable and efficacious policy generation, and perceptions of prosecutorial legitimacy. Is there a way to yield the benefits of a more contested and partisan politics of prosecution without succumbing to the downsides of intense partisanship that have infected other aspects of American political life? The Essay sketches some paths that might lead us there. Part I offers a brief overview of the politics of prosecution from the 1960s through the early years of the 21st century, focusing on the two defining features discussed above. (8) Part II argues that we are entering a new politics of prosecution, one characterized by rising partisanship and polarization, with prosecutors playing more proactive roles. (9) Part III considers the upsides and downsides of a more partisan politics of prosecution and sketches some ideas to maximize benefits while minimizing risks. (10)

Before proceeding, some clarification on terminology (and a caveat). The "politics of prosecution" refers to the ways in which prosecution intersects with, and embodies, public preferences on criminal enforcement as negotiated and refined through elections, appropriations, lawmaking and other political processes. I do not here delve into the political pressures of prosecuting politicians and other public officials (a worthy, but distinct, inquiry). "Partisanship" refers to ideological identification along the left/right political spectrum. (11) "Polarization" refers to the process by which people's stance on a given issue or candidate is more likely to be influenced by their identification with a particular political ideology. (12) And the caveat: the political dynamics discussed here are mostly limited to large, urban jurisdictions. In thousands of rural jurisdictions across the United States, the politics of prosecution remains, for now, relatively uncontested. (13) In prosecution, as with much else in American political life, there is a significant urban-rural divide. (14)

1. POLITICS AND PROSECUTORS: A BRIEF HISTORY

   Work on the politics of criminal enforcement can fill library stacks, and I will not summarize it here. Instead, I wish to amplify two points that quietly echo though much of this scholarship. The first is that, since at least the late 1960s up until relatively recently, this particular political space has been almost entirely bipartisan. The second is that prosecutors during this era were, for the most part, reactive rather than proactive; they responded to political shifts but didn't often drive them. Section A makes the first point and Section B the second.

   1. A Bipartisan Space

      To appreciate the relative political uniformity that characterized the tough-on-crime era and its immediate aftermath, it is important to distinguish between political rhetoric and political action. The former did operate in partisan fashion at least at the national level, with Republicans often weaponizing crime against Democrats, and Democrats appearing to succumb to the attacks (George Bush's infamous Willie Horton ad is perhaps the most oft-used illustration of this dynamic). (15)

      But beneath the rhetoric, at the level of political action--lawmaking, government spending and prototypical enforcement practices--during the last third of the 20th century it would be difficult to distinguish the conservative approach to criminal enforcement from the liberal one. Though he ran on attacking the "root causes" of crime though investments in education and job-creation and civil rights reform, President Lyndon Johnson spearheaded massive investments in local police departments through the Law Enforcement Assistance Act of 1965 (16) and the Omnibus Crime Control and Safe Streets Act of 1968. (17) President Nixon campaigned on a "law and order" platform, but his policies were more nuanced, a reflection of the shifting views of the era: he doubled down on the local law enforcement funding begun by Johnson, but also championed bipartisan federal drug legislation that invested heavily in treatment and rehabilitation and reduced penalties for many narcotics offenders. (18) By the 1980s views were no longer in flux; rehabilitation had been thoroughly discarded in favor of incapacitation as the dominant approach to crime policy, reflected in bipartisan federal and state legislation that stiffened penalties for drug crimes and violent crimes and invested further in policing. (19) The punitive turn became even more pronounced in the 1990s, which witnessed a wave of recidivist penalty enhancements across red and blue states and an aggressive federal crime bill enacted by a Democratic Congress and signed by President Bill Clinton. (20)

      By the early 2000s, the bipartisan pendulum began to reverse. From the libertarian right, which emphasized greater freedom from government overreach, to the conservative Right, which emphasized prison spending reductions, to the Left, which emphasized racial and socio-economic disparities in prison populations and the downstream effects of incarceration on Black and Brown communities, a sudden consensus emerged in favor of reform. (21) Between 2007 and 2016, 31 states of varying political leanings, along with the federal government, had taken measures to reduce incarceration through reforms to sentencing laws, pre-trial release and/or post-incarceration supervision. (22)

      Bipartisanship on criminal enforcement between the 1960s and the early 2000s is in many ways a "strange bedfellows" story, in which differing motives led to similar policy stances. In the 1980s, liberal reformers, believing that indeterminate sentencing and parole had enabled racial and socio-economic disparities in punishment, joined with tough-on-crime conservatives to push for determinate sentencing, sentencing commissions, andthe abolishment of parole. (23) Feminists and women's rights groups--"not the usual suspects" in Marie Gottschalk's retelling--aligned with the anti-rape movement in bolstering punitive penal policies. (24) The various constituencies on either side of the debate on New York's Rockefeller Drug laws (widely considered a herald of the tough-on-crime era) (25) defied traditional political alliances, (26) and the final bill ultimately passed with bipartisan support overcoming bipartisan opposition. (27)

   2. Reactive Prosecutors

      Throughout this era, prosecutors tended to react to political shifts rather than drive them. Sometimes they supported legislative change, and sometimes they resisted it. Though the politics of the tough-on-crime era has been portrayed as a form of prosecutorial windfall, (28) prosecutors did not always see it that way. District Attorneys Associations at times lobbied against the harshest penalties. (29) Once harsher sentencing regimes were enacted, some prosecutors' responses were, at least at first, to quietly buck them. (30) These positions and reactions do not appear to have been ideologically...