Race, Reform, & Progressive Prosecution.

• Author: Fryer, Daniel
• Position: Conference on Progressive Prosecution

INTRODUCTION 770 I. RETHINKING PROSECUTORIAL POWER 773 A. Prosecutorial Accountability 775 B. Leveraging Prosecutorial Power For Reform 776 II. PROSECUTORIAL POWER: CONTINGENT, NOT UNILATERAL 778 A. Exaggerating Prosecutorial Power 778 B. The Contingent Power Of Prosecutors 779 C. Another Look at Prosecutorial Power 781 D. Prosecutors and Other Criminal Justice Officials 785 III: PROGRESSIVE PROSECUTION AND RACIAL JUSTICE 790 A. Decarceration and Racial Justice 791 B. Prosecutorial Leniency as a Tool for Injustice 797 CONCLUSION 801 INTRODUCTION

Whatever else one might think about prosecutors, it is generally believed that they hold the power to right the wrongs of our criminal justice system. For example, while discussing a political action committee (PAC) created to help reform-minded prosecutors win elections, the activist Shaun King commented: "No position in America, no single individual has a bigger impact on the criminal justice system--including police brutality, but the whole crisis of mass incarceration in general--than your local district attorney .... They are the gatekeepers of America's justice system." (1) Similarly, Danielle Sered, the executive director of the alternative-to-incarceration program Common Justice, (2) noted: "[m]ass incarceration is made or broken by a bunch of assistant D.A.s and their supervisors and the decisions they make between 10:00 a.m. and noon." (3) And, of course, one cannot forget President Obama's recommendation to those dissatisfied with our criminal justice system: "If you are really concerned about how the criminal justice system treats African-Americans, the best way to protest is to vote .... Do what they just did in Philadelphia and Boston, and elect state's attorneys and district attorneys who are looking at issues in a new light." (4)

These sorts of statements are common in discussions about criminal justice reform. The message they convey is obvious: if you want to end the problems of our criminal justice system--such as mass incarceration and racial injustice--get prosecutors on your side. Since "[t]he American prosecutor rules the criminal justice system, exercising almost limitless discretion and virtually absolute power," (5) prosecutors should be able to unilaterally correct its wrongs. Or, as Professor Angela J. Davis puts it: "just as the power and discretion of prosecutors have contributed to mass incarceration and racial disparities in the criminal justice system, that same power and discretion may be used to institute reforms to correct these injustices." (6) Thus, if we are really concerned with how the criminal justice system treats black people, the message of what we should do is abundantly clear: vote for the right prosecutors.

If these responses to the oppressive aspects of our system of criminal justice strike you as too simple to be true, you are right--they are too simple to be true. Our penal society is shaped by longstanding stereotypes of black criminality, (7) a complex relationship between racial capitalism and carceral punishment, (8) and a general desire to promote white supremacy. (9) Thus, although the recent movement of "progressive prosecution" is lauded as the solution to the flaws of our system, we may be skeptical about the potential reach of these prosecutors who are viewing issues in a new light. This is not to say that the movement isn't promising. Yet endorsements encouraging those "concerned about how the criminal justice system treats African-Americans" (10) to focus their energy on electing prosecutors should be met with caution. The first thing to note is that these proposals often rely on exaggerated claims about prosecutors' power and naive statements about the potential to limit such power. To the extent prosecutors have a lot of power, it is because other actors permit them to have it. Despite claims to the contrary, our justice system is not set up as one ruled by a "prosecutor king" (11) who "answer[s] to no one else." (12) The second thing to note is that reform-minded prosecutors rarely articulate methods to address the specific racial harms of the criminal justice system. Instead, they often articulate neutral principles that are susceptible to being used in a racially discriminatory manner. Thus, the ones we expect to be the obvious beneficiaries of a reform movement--black Americans--have the potential to bear the biggest burden.

These are bold claims. And in the pages that follow I will try to unpack them. My task here is not one of criticism (full disclosure: in 2018 I joined the first class of assistant district attorneys hired as part of Philadelphia District Attorney Larry Krasner's "campaign to end mass incarceration" (13)), but rather to consider some underlying assumptions that appear to be guiding a promising reform movement. We are unlikely to make substantial progress in our reform efforts unless we examine the principles underlying the movement and the aims it expects to achieve. Too often, promising reform efforts improve community perceptions of criminal justice without actually improving criminal justice. (14) Indeed, sometimes liberal reform efforts (15) exacerbate problems they intend to correct. (16) My purpose here, then, is to point out some of the assumptions of the progressive prosecution movement and indicate some of the areas where it is susceptible to a fate resembling past reform efforts.

In Part I, I briefly describe what I take to be the rationale behind reformists' support of progressive prosecutors. In Part II, I examine the assumption that prosecutors have unilateral power to change the system and show why this is based on a mistaken view of prosecutorial power. Rather than possessing the unilateral power to control the system, prosecutors possess a contingent power that depends on other officials deferring to their actions. In Part III, I address a second assumption--that black Americans will be the primary beneficiaries of the policies advanced by progressive prosecutors--and explain why it is problematic. The difficulty is not simply aiming to reduce mass incarceration by attending to the disparities that currently exist in the system. Instead, progressive prosecutors ought to develop a decarceration program that actively seeks to advance racial justice and avoids asymmetrically harming our most vulnerable populations. I explain how ignoring the complex problems of marginalized communities could exacerbate, not alleviate, the racial injustice in our society. I conclude with some thoughts about moving forward. To start, though, let's see how we ended up here in the first place.

1. RETHINKING PROSECUTORIAL POWER

   Many say the American system of prosecution is in urgent need of reform. (17) But what type of reform are we after? Conventional critiques sought to limit prosecutorial discretion and point out its anomalous position in our scheme of limited government. (18) Sometimes the critique was made by comparison. When assessing prosecutorial power in relation to other powerful criminal justice officials, for example, scholars have been straightforward in their assessment: "No government official in America has as much unreviewable power and discretion as the prosecutor." (19) This point was typically buttressed by appealing to the public's ignorance of what goes on in prosecutors' offices. "Unlike judges," David Sklansky points out, "prosecutors generally do not announce the grounds for their decisions." (20) "And unlike the police," he continues, "prosecutors carry out most of their work behind closed doors." (21) Our system has observable metrics to keep judges and police accountable for their decisions, but "[w]e have nothing like that for prosecutors." (22)

   This lack of accountability might not be worrisome if prosecutors were thought to have minimal power. But the prosecutor has long been thought to have "more control over life, liberty, and reputation than any other person in America." (23) As former United States Attorney General Robert H. Jackson put it eighty years ago:

   [A prosecutor] can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. (24) Scholars still share Jackson's view of prosecutors. (25) But until a few years ago, reformists were less likely to echo Jackson's sentiment that this power could be used as a "beneficent force" in our society. Given widespread dissatisfaction with the criminal justice system, prosecutorial power is instead consistently viewed as the cause of all our problems. For instance, some scholars complain that "prosecutors have ended up with almost unfettered, unreviewable power to determine who gets sent to prison and for how long." (26) Others describe their ability as "the power to wreck lives, to put people on trial, and to lock them up--in short, to create dire outcomes." (27) And Professor Paul Butler--who previously served as a prosecutor (28)--has explicitly rejected the notion that "good people" should become prosecutors. (29) These sorts of statements caused one scholar to claim that "[p]rosecutors...