THE POOR REFORM PROSECUTOR: SO FAR FROM THE STATE CAPITAL, SO CLOSE TO THE SUBURBS.

• Author: Pfaff, John F.

Introduction 1013 I. The Rise of the Reform Prosecutor 1018 II. So Close to the Suburbs 1028 III. So Far From the State Capital 1040 Conclusion 1047 "Poor Mexico: So Far from God, So Close to the United States." --Former Mexican President Porfirio Diaz (1)

INTRODUCTION

One of the most significant developments in the criminal legal system over the past decade or so has been the rise of the "progressive," or "reform," prosecutor. As recently as 2010, perhaps only three or four elected district attorneys fit the profile of a reformer, presiding over ~2% of the U.S. population. By 2022, however, there were upwards of 70 such officials, running offices in counties that are home to nearly one in five people in the U.S., Furthermore, by the end of 2022 at least 50 other counties, many of them among the most populous, had seen unsuccessful campaigns by reformers to unseat more-punitive incumbents. After decades of flying below the academic, political, and media radars, local prosecutor elections now often become national news. (2)

It is inarguably good that politicians and voters are focusing more energy on who we elect as prosecutors. It has become increasingly clear that the ways prosecutors wield their vast and generally unreviewable discretion has played a central role in driving up U.S. prison populations over the past several decades, and in all the other ways our punitive criminal legal system has expanded its control over more and more people. (3) And it stands to reason that replacing punitive prosecutors with less punitive ones could help us scale back our exceptional punitiveness. (4)

It is important, however, for reformers to not overstate the extent to which reform prosecutors can be the primary drivers of reversing our 40 to 50 year punitive project. Politics and policy are not always symmetric: that which drives something up does not always have the same power to push things back down. And the more I have studied reform prosecutors over the past decade, the more aware I have become of their limitations.

This concern--that perhaps reformers are putting prosecutors too much at the center of efforts to scale back mass punishment--really struck me in the wake of the Supreme Court's 2022 decision in Dobbs v Jackson's Women's Health, (5) which reversed the abortion-rights protections established in Roe v Wade. (6) Within days of the Court handing down Dobbs, which opens the door for states to criminalize those who receive or perform abortions, dozens of prosecutors signed a letter written by Fair and Just Prosecution ("FJP"), an association of reform-minded prosecutors, pledging to not prosecute abortion-related cases should their states recriminalize abortion. (7) Tellingly, no parallel letter was signed by, say, mayors, police chiefs, sheriffs, or governors (although some such officials obviously quickly spoke out against criminalization on their own). Opponents of the criminalization of abortion immediately turned to prosecutors for assurance.

But there are a lot of problems with this focus on prosecutors that quickly become apparent. Some of the issues are structural. Prosecutors, for example, have no direct authority over the police. Even if they refuse to prosecute cases, they can almost never prevent arrests, (8) and those arrests create permanent criminal records and can result in people spending (harmful) time in the local lockup or county jail before prosecutors dismiss the cases. (9) They also have limited ability to implement less-punitive, more public-health based responses to violent and anti-social behavior. They can push for more diversion programs, but those only come into play once the person has been pulled into the criminal legal system to start with. And, at least in the bigger offices--which process most cases (10)--reform prosecutors at the top also face the challenge of compelling compliance from often-recalcitrant mid-level tiers of managing assistant district attorneys."

These are all important limitations, but I want to focus here not on structural impediments but on two inter-related political ones, limitations that are tied to the geography of prosecution. That prosecutors in the U.S. are elected is itself peculiar--we are the only country that does this. Yet while there has been some empirical analysis on this unique design in general, (12) the challenges posed by electing them specifically at the county level has not gotten as much attention. And counties are... peculiar jurisdictions for electing prosecutors. On the one hand, as we will see in Part II below, they are too big. Crime, or at least street crime, tends to be disproportionately concentrated in cities, but most urban counties include both the city and many of its adjacent suburbs. (13) County-level elections thus give communities that are disproportionately unaffected by crime--and thus by how the prosecutor responds to that crime--a large, arguably too large, voice in who that prosecutor is, and likewise dilute the political voice of those who bear the brunt, good or bad, of what prosecutors choose to do. That these suburban communities are generally whiter, richer, and more conservative than the cities they surround only makes this political disconnect all the greater.

On the other hand, counties are in some ways too small and too far (symbolically, if not literally) from the state capital, leaving local reformers at the mercy of increasingly punitive state officials. While the U.S. Constitution provides the states with at least some imprecise safeguards against federal usurpation, counties explicitly have no such protection from state-level intervention; some states may choose to grant their cities a degree of home-rule, but the threat of preemption is always lurking. (14) Historically, outside of gun control, state governments have generally not wielded their preemption power when it came to criminal legal issues, but that has changed in recent years, especially (but not solely) in Republican-led states with more-liberal cities pushing for broader criminal legal reforms. The calls for police defunding in the wake of George Floyd's murder in 2020 already prompted a wave of state laws aimed at limiting how cities fund police; (15) the signs of prosecutorial resistance in the wake of Dobbs have, in turn, accelerated nascent state efforts to preempt reform-minded prosecutorial discretion as well. (16)

Taken together, these two effects are like a vise pinching reform efforts from two ends. The suburban power likely limits the places where reformers can prevail. It is not surprising, for example, that many reform prosecutor wins have been in places like Philadelphia, Brooklyn, the cities of Baltimore and St. Louis: all cities (or boroughs) that are also the relevant county. None of these races involved suburbs, all of which are in adjacent counties. It is similarly unsurprising that reformers have lost in places in like Orange County, CA (which has no core city) or San Diego County, CA (where the core city's population is well under half that of the county as a whole). The suburbs likely impose a clear limit on where reformers can be elected, at least with the current emphasis on racial social justice. (17)

Then, once they manage to get elected, reformers need to be cautious about drawing the ire of the state capital, against whom they are mostly defenseless. A good example of this is how Steve Mulroy, the reformer recently elected in Shelby County, TN (Memphis), refused to explicitly say that he would not prosecute abortion cases in the waning post-Dobbs days of his campaign, likely in an effort to avoid the attention of state officials in Nashville. (18) This is a serious issue in red(der) states, as we will see in Part III, but it is not confined to them. (19) Early on in her first (partial) term, for example, Democratic New York governor Kathy Hochul made it clear she knew she had the power to unilaterally remove Manhattan's recently-elected reformer, Alvin Bragg. (20)

Now, to be clear, my point very much is not a nihilistic one. A lot can be accomplished in bluer cities in bluer/purpler states, and even in more conservative states there is still some (perhaps a fair amount of) room for officials in more-liberal cities to flex reformist wings. And given how concentrated people--and thus crime, and thus punishment--are, even just a handful of cities can shift national-level trends, and many of our largest cities are in Democratic or divided-government states, where preemption is far less likely (although, as Hochul's words make clear, not impossible). But it is essential to be aware of the limits imposed by suburbs and the threats posed by state governments, none of which can be confronted legally: states are not about to redraw prosecutorial jurisdictions, and the current Supreme Court is not going to find urban home rule lurking in the US Constitution. That does not mean there are no solutions, but those solutions will be political, not legal. (21)

1. THE RISE OF THE REFORM PROSECUTOR

   For much of the past 50 years, as prison populations steadily rose and mass punishment took root, prosecutors managed to fly mostly under the radar, both politically and academically. A study of prosecutor elections in ten states from 1996-2006, for example, found that incumbents running for re-election faced no opposition in primaries or general elections in 85% of their races and won in 95% of them; the jobs were more sinecures than competitive elected positions. (22) Academic studies of incarceration and punishment likewise tended to overlook the role of prosecutors. (23) Perhaps most glaringly, the National Research Council's effort in 2014 to provide a definitive account of the drivers of mass incarceration failed to assign any responsibility to prosecutors at all. (24)

   Yet while prosecutors evaded attention, they were playing an outsized role in driving up prison populations, especially during the 1990s and...