Fighting for Justice: Are Progressive Prosecutors Capable of Ending Mass Incarceration?

A growing number of prosecutors are confronting the challenge of ending mass incarceration and reforming a criminal justice system that disproportionately punishes people of color and poor individuals. They are part of the progressive-prosecutor movement, which presents reform-minded prosecutors as the most promising solution to the problems plaguing the criminal justice system in the United States.¹ Progressive prosecutors seek to reduce mass incarceration and address racial disparities in the criminal justice system by using their vast discretionary powers.² Citizens across the U.S. seem to resonate with their message, as voters are increasingly electing progressive prosecutors: Larry Kasner in Philadelphia, Kim Foxx in Cook County, Rachel Rollins in Boston, and Wesley Bell in Saint Louis, among others.³ Given the scope of this phenomenon, it is important to seriously consider whether these prosecutors will be able to create the substantive change they promise. Progressive prosecutors are indeed making a noteworthy contribution to the fight against mass incarceration. However, to uproot the structural problems of the criminal justice system, it is not enough to vote progressive prosecutors into office — institutional change is necessary to ensure long-term criminal justice reform.

Prosecutors wield enormous power in the current criminal justice system. Legal scholar William Stuntz wrote that “checks and balances are an illusion” in the American justice system and that “the criminal justice system seems characterized by diffused power, but its real difficulty is that it concentrates power in prosecutors.”⁴ Prosecutorial discretion refers to the prosecutor’s authority to decide whether to take enforcement action, what charges to bring, and whether to seek cash bail or pretrial detention.⁵ Importantly, prosecutors have significant influence over a defendant’s sentencing by controlling the plea-bargaining process. According to the Pew Research Center, more than 97 percent of federal criminal convictions are gained through plea bargains instead of going to trial.⁶ This poses a significant threat to justice because prosecutors have been known to use coercive plea-bargaining tactics to secure countless convictions.⁷

Progressive prosecutors take advantage of this institutional design to advance their agenda of ending mass incarceration. In making use of their discretionary power, they can refrain from prosecuting individuals for low-level offenses like marijuana cases, call for police accountability, and launch diversion programs.⁸ Diversion programs deflect select cases away from the system and into the community, consequently maximizing limited resources and sidestepping the harshness of the criminal justice system. For example, in King County, the Prosecuting Attorney’s Office works with Young Women’s Christian Association (YWCA) to connect criminalized survivors of intimate partner violence to intervention services, such as housing resources and advocacy.⁹ Many survivors of violence, particularly women of color, have been accused of a crime related to domestic violence.¹⁰ By utilizing diversion programs, the King County Prosecuting Attorney is diverting these survivors-defendants away from the cruelty of the criminal justice system while simultaneously better addressing their needs. Given these various mechanisms to reduce the incarcerated population and reform the criminal justice system, the impact of progressive prosecutors should not be understated. Larry Krasner, the District Attorney for Philadelphia, remarks, “not so many years ago, there were 15,000 people in county custody. By the time I took office, there had been some good efforts to reduce it. When I took office in January 2018, we had 6,500.”¹¹ By recommending lighter sentencing and conditions of probation, Krasner’s progressive approach to prosecution led to a 46 percent shrinkage in the average length of sentences.¹² Progressive prosecutors have also made notable advances in making the legal system less punitive for poor people. The No-Cash-Bail reform in Philadelphia increased the number of defendants released without any monetary conditions by 25 percent.¹³ Thus, people who were previously not able to afford bail no longer had to spend a night in jail. These impressive results suggest that progressive prosecution might be one of the most effective ways to end mass incarceration and create substantive change in the criminal justice system.

The novelty and radical nature of the progressive prosecution movement has made it subject to various criticisms, some of which are more plausible than others. A widespread objection brought up by legal scholars in favor of the traditional “tough on crime” approach is that progressive prosecution represents an alerting driving force behind rising crime rates.¹⁴ However, there is little empirical evidence that substantiates this narrative. In a recent study that examined 35 cities and counties, researchers found that progressive prosecution does not have any detectable effects on the number of violent crime incidents.¹⁵ Rather, other factors, like unemployment levels appear to be a more reliable predictor of crime rates.¹⁶ Thus, the progressive prosecution movement meaningfully reduces the jail population without causing an increase in crime rates.

Still, progressive prosecutors cannot single-handedly reform the criminal justice system. District attorneys are vulnerable to the volatile will of the electorate, so the changes progressive prosecutors implement last only as long as they remain in office. Apart from the fact that their successors could undo the changes they implement, progressive prosecutors are confronted with the standard principal-agent problem.¹⁷ Elected prosecutors supervise line prosecutors, who run many, but not all, charging decisions by head prosecutors. Head prosecutors define the general goals of the office and instruct line prosecutors on how to approach cases, but line prosecutors are in charge of their caseload.¹⁸ Thus, while lead prosecutors might have a progressive agenda, line prosecutors can subvert their reformist goals if they oppose them. For instance, the line prosecutor can threaten a witness with charges if they refuse to testify at trial.¹⁹ A progressive prosecutor might seek to put an end to this practice, but would be for the most part unaware of line prosecutors engaging in these coercive tactics.²⁰ Therefore, to create sustainable and comprehensive change in the criminal justice system, prosecutors need to call for an institutional overhaul that would reduce the powers of prosecutors. By relinquishing some of their power, prosecutors would ensure that reforms last longer than their term of office and are not susceptible to being challenged by line attorneys who do not subscribe to their progressive agenda. Legislation that would diminish the power of prosecutorial offices across the U.S. is key to making the reforms initiated by progressive prosecutors long-lasting and far-reaching. Otherwise, the advances made in keeping Americans out of the criminal justice system would be subject to constant change and reversal.

One concrete way prosecutors can limit their authority is by pushing for a policy of open discovery across all U.S. states.²¹ Expanded discovery would grant the defense access to the prosecutor’s files, thus preventing prosecutors from withholding exculpatory evidence. The chilling revelations of prosecutorial misconduct and wrongful convictions prompted some states like North Carolina to adopt full open-file discovery rules.²² DNA evidence has exonerated close to four hundred people, so the need for more transparency in sharing information is clearer than ever.²³ The wider enactment of open-file discovery rules would create a mandatory practice of exchanging all evidence in the custody of the state, which in turn will offer the defendant the opportunity to make an informed plea.²⁴ By limiting the possibility of suppression of material evidence, this procedure will reduce complications during trials as well as the number of reversals on appeal, thereby making the criminal justice system more just and efficient. The American Bar Association has long called for open discovery policies in criminal trials.²⁵ While some prosecutors have voluntarily opted to turn over all evidence to the defense, there are many jurisdictions in the United States that have narrow discovery policies.²⁶ Therefore, to uphold the fundamental right to due process, states ought to pass laws mandating more expansive discovery rules, analogous to those that are already being used in civil cases. Such a move would also limit the prosecutor’s power and consequently solidify the reforms progressive prosecutors are spearheading.

The progressive prosecutor movement sheds light on an increasing number of action-oriented attorneys who are determined to put an end to the trends that have made the United States the largest incarcerator worldwide.²⁷ Tactics such as nonenforcement and diversion programs have proved to be effective in reducing the jail population.²⁸ However, volatile voter preferences and the principal-agent dilemma that may arise between the head district attorney and their line prosecutors represent just some of the reasons why progressive prosecutors cannot by themselves reform the American criminal justice system. Structural changes codified in state and federal laws are more enduring and far-reaching. Therefore, prosecutors should leverage their authority to pave the way for institutional reform that would reduce the nearly unfettered discretionary power that they currently possess.

References

1. Darcy Covert, “The False Hope of the Progressive-Prosecutor Movement,” The Atlantic (Atlantic Media Company, June 14, 2021), https://www.theatlantic.com/ideas/archive/2021/06/myth-progressive-prosecutor-justice-reform/619141/. ↩

2. Ibid. ↩

3. Jeffrey Bellin, “Defending Progressive Prosecution,” Defending Progressive Prosecution | Yale Law & Policy Review, accessed March 23, 2022, https://ylpr.yale.edu/defending-progressive-prosecution. ↩

4. William J. Stuntz, “The Pathological Politics of Criminal Law,” Michigan Law Review 100, no. 3 (2001): p. 505, https://doi.org/10.2307/1290411. ↩

5. “Prosecutorial Reform,” Brennan Center for Justice, December 3, 2018, https://www.brennancenter.org/issues/end-mass-incarceration/changing-incentives/prosecutorial-reform. ↩

6. John Gramlich, “Only 2% of Federal Criminal Defendants Go to Trial, and Most Who Do Are Found Guilty,” Pew Research Center (Pew Research Center, May 30, 2020), https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/. ↩

7. Clark Neily, “Prisons Are Packed Because Prosecutors Are Coercing Plea Deals. and, Yes, It's Totally Legal.,” NBCNews.com (NBCUniversal News Group, August 8, 2019), https://www.nbcnews.com/think/opinion/prisons-are-packed-because-prosecutors-are-coercing-plea-deals-yes-ncna1034201. ↩

8. “The Paradox of ‘Progressive Prosecution,’” Harvard Law Review, December 10, 2018, https://harvardlawreview.org/2018/12/the-paradox-of-progressive-prosecution/. ↩

9. “Survivors First,” YWCA Seattle | King | Snohomish, March 24, 2022, https://www.ywcaworks.org/programs/survivors-first. ↩

10. Ibid. ↩

11. Jamil Smith, “‘Progressive Prosecutors’ Are Working within the System to Change It. How Is That Going?,” Vox (Vox, July 30, 2021), https://www.vox.com/2021/7/30/22600669/larry-krasner-philadelphia-reform-prosecutors-crime. ↩

12. Allison Young, “The Facts on Progressive Prosecutors,” Center for American Progress, January 28, 2022, https://www.americanprogress.org/article/progressive-prosecutors-reforming-criminal-justice/. ↩

13. Aurelie Ouss and Megan Stevenson, “Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail,” SSRN Electronic Journal, 2019, https://doi.org/10.2139/ssrn.3335138. ↩

14. Charles Stimson, “‘Progressive’ Prosecutors Sabotage the Rule of Law, Raise Crime Rates, and Ignore Victims,” The Heritage Foundation, accessed April 22, 2022, https://www.heritage.org/crime-and-justice/report/progressive-prosecutors-sabotage-the-rule-law-raise-crime-rates-and-ignore. ↩

15. Ibid. ↩

16. “Are Progressive Prosecutors to Blame for an American Homicide Wave?,” The Economist (The Economist Newspaper), accessed March 23, 2022, https://www.economist.com/graphic-detail/2022/02/19/are-progressive-prosecutors-to-blame-for-an-american-homicide-wave. ↩

17. The Paradox of ‘Progressive Prosecution,’” Harvard Law Review, December 10, 2018, https://harvardlawreview.org/2018/12/the-paradox-of-progressive-prosecution/. ↩

18. “Your Local Prosecutor Represents You,” Vera Institute of Justice, accessed April 22, 2022, https://www.vera.org/unlocking-the-black-box-of-prosecution/for-community-members. ↩

19. Ibid. ↩

20. Ibid. ↩

21. Rachel Barkow, “Can Prosecutors End Mass Incarceration?,” Michigan Law Review, no. 119.6 (2021): p. 1365, https://doi.org/10.36644/mlr.119.6.can. ↩

22. “Pursuing Discovery in Criminal Cases: Forcing Open the Prosecution's Files,” NACDL, accessed March 23, 2022, https://www.nacdl.org/Article/May2013-PursuingDiscoveryinCriminalCas. ↩

23. “Exonerate,” Innocence Project, August 20, 2020, https://innocenceproject.org/exonerate/. ↩

24. “Expanded Discovery in Criminal Cases:A Policy Review,” The Justice Project, accessed March 24, 2022, https://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/death_penalty_reform/expanded20discovery20policy20briefpdf.pdf. ↩

25. Ibid. ↩

26. Ibid. ↩

27. Published by Statista Research Department and Jun 2, “Ranking: Most Prisoners per Capita by Country 2021,” Statista, June 2, 2021, https://www.statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants/. ↩

28. Allison Young, “The Facts on Progressive Prosecutors,” Center for American Progress, January 28, 2022, https://www.americanprogress.org/article/progressive-prosecutors-reforming-criminal-justice/. ↩