Rural Spaces, Communities of Color, and the Progressive Prosecutor.

• Author: Romero, Maybell
• Position: Conference on Progressive Prosecution

INTRODUCTION 804 I. WHAT IS RURAL? 806 A. Defining "Rurality" 806 B. Rural Whitewashing 809 II. THERE ARE NO PROGRESSIVE PROSECUTORS 811 A. Defining "Progressive" 811 B. The Impossibility of the Progressive Prosecutor 813 III. RACIAL INEQUITIES IN PROSECUTORS' OFFICES AND INCARCERATED 818 POPULATIONS CONCLUSION 821 INTRODUCTION

A burgeoning number of prosecutors and district and state's attorney candidates have begun to identify as progressive prosecutors. These prosecutors generally favor decriminalizing low-level offenses, using alternatives to incarceration, examining the police more critically, and exercising discretion. (1)

Races pitting progressive prosecutors against often-entrenched incumbents have spurred important and necessary discussions about reform in the criminal legal system. These races also make for interesting politics. Often these contests pit a new, progressive prosecutor against an incumbent from the same party. Wesley Bell, the St. Louis County prosecutor, defeated another Democrat, Bob McCulloch, who had won seven elections in a row, usually unopposed. (2) Tiffany Caban, a Democrat public defender running for Queens District Attorney, nearly pulled off a similar upset against Melinda Katz, the Democratic Queens Borough President who was expected to enjoy an easy victory at the polls. (3)

All of these prosecutors, though, operate in large urban areas. This focus on urban progressive prosecutors is part of a large pattern of policymakers and scholars ignoring rural jurisdictions and the systemic issues within those areas. The political divide between urban and rural communities has grown sharper during the past twenty years. (4) Democrats and liberals "have reinforced their party loyalty and progressive leaning over time with a similar development occurring among geographically dispersed Republicans." (5) Studies of and reflections on progressive prosecutors, while informative, often completely discount this acute political divide between urban and rural areas and ignore the state of prosecution, progressive or not, in rural jurisdictions. (6)

Ignoring rural jurisdictions erases a number of communities of color throughout the United States. People of color now represent nearly twenty percent of the rural American population, with the percentage only increasing each year. (7) Rural Hispanics (8) usually lived in the Southwest but have begun to move into areas such as the Pacific Northwest for work. (9) The reported Native population has grown thanks to more accurate accounting during the last few Censuses; the 2010 Census reported a thirty-nine percent increase in the Native population from the 2000 Census. (10) This is a marked increase, especially when compared with prior Census data, and is likely due to a greater ability to claim Native ethnicity in combination with others given that it was the first year one could report more than one ethnicity. (11) There are still a substantial number of Black nonmetro residents living throughout the Deep South, whose proportion of the rural population has remained constant for decades. (12) The Hispanic population in this region has increased as well. (13)

This Article argues that the notion of the progressive prosecutor is only that--a notion. This is because the progressive prosecutor is one who still participates in and buys into a criminal legal system that can never be progressive given its own terms and purpose. Further, this notion is completely cut off from the ways that the criminal legal system operates in rural areas and the communities of color that exist there. Part I explains the concept of rurality and discusses the often-ignored diversity that exists in rural areas. Part II interrogates the progressive prosecutor, especially in the rural context. Part III offers a survey of disproportionate incarceration rates in some of the most rural states in the country, as well as some thoughts on how to bridge the gap between urban and rural.

1. WHAT is RURAL?

   Rural communities, rather than being monolithically white and conservative, are, rather, exceptionally diverse in character, culture, and social fabric. They do all share some common characteristics, including that they are so very difficult to categorize. Additionally, the general American public makes a great deal of undeserved judgments about these communities as a whole. Both these points--the difficulty of defining and categorizing "rural" and the fact that "rural" is largely stereotyped in this country--are highlighted in the following two subsections defining rurality and rural "whitewashing."

   1. DEFINING "RURALITY"

      One of the greatest difficulties in studying and writing about rural America from any standpoint is deciding on a definition of "rural." There have been many attempts to advance a workable definition of rurality. These efforts may be categorized in two ways: (1) empirical and (2) sociological. Traditionally, census definitions have prevailed in defining "rural" in a quantifiable, empirical fashion; these definitions, though, have consistently defined rural in the negative, viewing rurality simply as the opposite of urban. This view not only makes the studying of rurality complicated, but also confounds courts who have to define "rural" for themselves. (14) However, different agencies and groups have recently tried to set formalized definitions of "rurality" based on a select set of metrics. (15) For example, starting in 2017, the Census Bureau started formulating rural statistical areas, which would purport to establish sets of characteristics to define "rural" rather than relying on the traditional approach of defining it as the opposite of urban areas. (16) As Davies and Clark remarked, "[t]here are a variety of approaches to measuring rurality in the United States, and choices among them depend on their appropriateness both to the questions being asked and the analytic approaches employed." (17)

      There are also more sociologically based definitions of rurality that have been deployed in foundational studies of rurality and the law. In her work examining access to justice in rural America, Ann Eisenberg posits four rural Americas: "(1) amenity-rich rural America; (2) chronically poor rural America; (3) declining resource-dependent rural America; and (4) amenity/decline rural America." (18) The Deason Center for Criminal Justice Reform at the SMU Dedman School of Law has only recently begun to study what they have started to term "STAR" communities--small, tribal, and rural communities--in an attempt to be inclusive and recognize the commonalities inherent in these different communities. (19) There do seem to be some commonalties, however, across these different rural Americas. "People living in small towns tend to know their neighbors and interact with them in multiple settings." (20) Perhaps because of that, there is generally a high level of community trust and high levels of community participation among rural dwellers, no matter if they live in an amenity-rich rural community or one struggling with economic decline. (21)

      Though a number of definitions exist that each attempt to define exactly what "rural" means and each definition seems only slightly different, each actually stands apart from the others in important ways. Suburbs, exurbs, and rural areas are also often lumped together in a category called nonmetro, (22) though each of these is vastly different from the other, but also hard to distinguish from the other given a lack of established definitions. (23) For the purposes of this Article, I adopt a more flexible, yet perhaps more workable, definition. Specifically, it derives from Professor Pruitt's article Latina/os, Locality, and Law in the Rural South: "I use the term here to refer to an inchoate concept of rurality, the general idea of sparsely populated areas, including small towns, and associated cultural aspects." (24) I do not attempt to lump all of rural culture and life together, given the great diversity within rural settings throughout the United States. Rurality in Utah is very different from rurality in Illinois, which is very different from rurality in Kentucky, and so on.

      For the purposes of this Article, I also adopt a view of rurality focusing on the highest number of rural dwellers per state--specifically, on the ten states with the greatest proportion of rural residents. (25) In that sense, I have made a somewhat utilitarian choice to focus on states where I believe the most people, including the most rural people of color, would benefit from some attention brought to their circumstances. While much attention is placed on reform of the criminal legal system, especially in the wake of George Floyd's tragic murder at the hands of police, much of this focus is placed on urban centers. (26) This Article also benefits from narrowing its focus to these ten states because data already exists about disproportionate minority involvement with the criminal legal system, and these states are conclusively rural. This focus, however, should not take away from the fact that even the most urbanized states, such as Nevada and California, may not have large rural populations, but still consist of vast stretches of unpopulated, open space. Readers should realize that rural spaces exist in every state, even those states with large cities and those states thought of in the wider imagination as urban. States like these face substantial challenges providing services to their few rural dwellers, and those challenges should be acknowledged.

   2. RURAL WHITEWASHING

      In 2019, Paul Krugman wrote a New York Times op-ed entitled "Getting Real About Rural America." (27) His piece is telling of how many people think about rural places and their rural residents as a "world apart," one not necessarily part of "real America." (28) Krugman unfairly characterizes rural America as analogous to the former East Germany, which suffered from a lackluster economy and...