When Prosecutors Politick: Progressive Law Enforcers Then and Now.

• Author: Green, Bruce A.
• Position: Conference on Progressive Prosecution

INTRODUCTION 720 I. CRIMINAL JUSTICE REFORM IN THE PROGRESSIVE ERA 722 A. Progressive Era Prosecutors 722 B. Rationalization and Bureaucratization of Criminal Justice 723 C. Professionalization 726 D. Criminal Justice as Social Welfare 730 E. The Legacy of Prosecutorial Professionalism 733 II. TWENTY-FIRST CENTURY "PROGRESSIVE PROSECUTORS" 736 A. Framing the New Progressive Prosecution Movement 737 B. The Rise of the New Progressive Prosecution Movement 738 C. Comparing Progressive Prosecutors to Their Progressive 746 Era Predecessors 1. The Politics of Criminal Justice Reform 747 2. Lenity in Aid of Proportionality and Equality 750 3. Categorical Presumptions of Lenity 757 4. Holistic Prosecuting 761 III. LESSONS FROM HISTORY 762 Conclusion 766 INTRODUCTION

Since 2016, "progressive prosecutors" have won elections on promises to reduce mass incarceration and redress the unfair treatment of the poor and minorities in the criminal justice system.' The progressive politics of the day have filtered into prosecutorial elections, and prosecutors are drawing on a populist movement to fuel their campaigns and platforms. (2) Their election as district and county attorneys marks a significant break from the law-and-order approach to prosecution that dominated for decades. (3)

This is not the first time that reformers pursued a new approach to prosecution. The Progressive Era reform movement in the late nineteenth and early twentieth centuries included a promise to overhaul an outdated, corrupt criminal justice system, including replacing corrupt prosecutors who belonged to the party machines. While the Progressive Era and the present are not the only times when criminal law reform has been pressing, (4) these particular historical periods are worth comparing because, in both cases, prosecutor elections were and are politically salient, drawing significant attention and popular support.

The Progressive Era criminal justice reform movement had several defining features. Its aim was to combat corruption by professionalizing criminal justice: reformers sought to replace political cronies with disinterested experts who applied the law to facts rather than basing their decisions on impermissible personal, partisan, or political considerations. (5) Progressive Era reformers also rejected nineteenth-century notions of free will and personal responsibility, believing instead that biology and environment shaped individuals' conduct. (6) Finally, criminal justice reformers sought to bring rational business management to chaotic courts. During this era, lawyers seeking election as prosecutors under the reform banner, most famously William Travers Jerome of Manhattan, challenged office holders who were beholden to a political party and dedicated to powerful and moneyed interests. (7) The legacy of disinterested and independent prosecutorial professionalism, which Jerome exemplified, is now widely accepted, if not taken for granted.

This Article compares the new progressive prosecutors to the Progressive Era criminal justice reformers to identify the benefits and concerns that accompany a prosecutorial reform movement linked to popular politics. The successes and failures of Progressive Era criminal justice reform offer a cautionary tale to progressive prosecutors who draw on active popular support to feed their campaigns and platforms. While populist energy lends momentum and political will for positive change, it can also be in tension with professional values. The Article concludes that contemporary progressive prosecutors ought to take care not to sacrifice professionalism to broader social justice policy goals. The Article also cautions that, although a focus on the social context in which crime occurs is progress from the cruder nineteenth-century conception of free will and personal responsibility, it too has its dangers.

Part I of the Article describes the criminal justice reform movement during the Progressive Era and its legacy. Part II then turns to contemporary progressive prosecutors. Focusing especially on the exercise of prosecutorial discretion, it highlights how progressive prosecutors have distinguished themselves from their mainstream contemporaries and, in doing so, how they compare with Progressive Era reformers. Finally, Part III offers some lessons from history.

1. CRIMINAL JUSTICE REFORM IN THE PROGRESSIVE ERA

   1. PROGRESSIVE ERA PROSECUTORS

      Beginning around 1870, the progressive movement emerged to address the increasingly complex problems of industrial capitalism in America. The rapidly changing economy brought an influx of new immigrants from southern and eastern Europe, as well as a migration of a large number of African Americans from the South to northern cities. The social problems were complex: overcrowding, increases in crime, clashing of cultures, and more. These new conditions were accompanied by harsh working conditions, poverty, child labor, and more women in the workforce. (8) While the progressive movement was in no way monolithic, its proponents shared a concern about these social conditions and came to a consensus on some common causes and means to address them. (9)

      One target of the Progressive Era reform movement was criminal justice. The conditions of urban America, along with the increased concentration of people from diverse communities, contributed to an increase in crime and corruption. (10) The Progressive Era reformers sought to address this in various ways. This Part highlights three aspects of the Progressive Era criminal justice reform movement that had particular significance for criminal prosecutors: Section B examines Progressive Era reformers' focus on administrative efficiency; Section C looks at their faith in expertise and professionalization; and Section D underscores their belief that crime was a symptom of a larger social problem. Finally, Section E focuses on what we regard as Progressive Era prosecutors' most significant legacy for contemporary prosecutors: their conception of prosecutors' professional role and responsibilities.

   2. RATIONALIZATION AND BUREAUCRATIZATION OF CRIMINAL JUSTICE

      The Progressive Era was the heyday of muckrakers, the journalists and social reformers who sought to shed light on the corruption, inefficiency, and evils of industrial capitalism. The most famous of their works was Upton Sinclair's The Jungle, which described the harsh conditions of immigrant workers in Chicago and exposed the unsanitary conditions of America's meat packing plants." Along these lines--albeit in a far less dramatic way--reformers described, in minute detail, the sluggish inefficiency and venality of municipal courts. (12)

      The municipal courts in Cleveland, for instance, were populated by prosecutors who knew nothing about the cases, carried no papers, and kept few files. (13) Cases were disposed of without public scrutiny. Prosecutors whispered in the ears of the judges, who issued decisions to continue the case or impose a light penalty, while defense attorneys drifted around the room doing little to nothing. (14) Courts were dirty, dark, and noisy, belying any misconceived sense of the administration of impartial justice. (15) As urban planner and reformer Alfred Bettman and his co-author Howard F. Burns put it, anyone would be left with the impression that "results are dependent upon favor or strange influences [rather] than upon a judgment of the court based exclusively on the dictates of law and justice." (16) Drawing on the efficiency movement pioneered by Frederick Taylor and others, criminal justice reformers hoped to make courts look more like businesses than government agencies. (17)

      The inefficiency of prosecutors' offices, like that of the courts, made them susceptible to corruption. The lack of documentation and the individual prosecutors' power to dismiss cases bred a sense that criminal justice was for sale to those with political, social, or financial influence. (18) When asked why he did not discipline his subordinates when they neglected their cases or acted improperly, one reform prosecutor in Cleveland responded that he had no control over the assistant prosecutors, who "were appointed just as he was." (19) A county prosecutor developed a policy of keeping assistant prosecutors in the dark about their cases until shortly before trial so they would not have the time to corruptly drop or block a prosecution. (20)

      Reformers insisted that the municipal prosecutor ought to be like an executive of a large business or the managing clerk of a law office. (21) Specialization, a key goal of the efficiency movement, was seen as critical to the proper functioning of prosecutors' offices. The reformers were convinced that the existing system, in which prosecutors handled all different sorts and stages of cases, had led to both corruption and amateurism. Specialization would breed expertise while helping to ensure oversight such that no one prosecutor could corrupt the system. Thus, as in a factory, some prosecutors should serve as trial assistants and others should manage police-initiated charges, while another set should deal with complaints from the community. (22) Prosecutors would become experts in their work, a key to the impartial administration of justice, the legitimacy of the criminal justice system, and the efficient functioning of the system. As Bettman and Burns concluded in the volume edited by Felix Frankfurter and Roscoe Pound, the efficient and organized administration of justice was critical, but would fail without the skilled and professional exercise of discretion and judgment. (23)

      Reformers understood that increased efficiency would come at a cost to participatory democracy. While susceptible to corruption, the old model was also fluid and informal. In the old system, complainants could speak directly to judges, witnesses, victims, and the accused, and spoke with one another and interacted casually to bargain for a desired...