Issues

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of prosecutors received a good deal of popular attention and support. The Progressive Era reformers introduced the notion promoted by current progressive prosecutors that crime is a social phenomenon, which community services are better equipped to address than prisons. The Progressive Era movement also sought to implement professional norms and practices to promote the values of fairness and proportionality. Contemporary progressive prosecutors inherit this legacy but tend not to emphasize these professional values. The Article concludes that the professional values championed during the Progressive Era are critical, in conjunction with new programs and policies, to ensure that as innovation helps achieve social justice, prosecution remains in the hands of those committed to fair and even-handed justice.

The progressive prosecution movement is one of the most recent efforts to reform the United States criminal justice system. In this Article, I analyze two assumptions that appear to be guiding this movement. The first is that prosecutors have unilateral power to change the system. The second is that those who bear the biggest burden of our current system—black Americans—would be the primary beneficiaries of the decarceration proposals advanced by progressive prosecutors. I argue that each of these assumptions is misguided. A successful criminal justice reform movement must recognize the contingent power of prosecutors and actively seek to advance racial justice on top of its decarceration efforts. To avoid exacerbating the problems they intend to correct, reformists must reexamine the principles underlying the movement and the aims they expect to achieve.

The concept of the progressive prosecutor has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large. Many with sincere interests in reforming the criminal legal system have excitedly traced the success of candidates styling themselves as progressive prosecutors. Although located throughout the country, these progressive prosecutors share a geographic commonality—they generally hail from large cities or urban metroplexes. Examples include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago. Meanwhile, in the rural reaches of the country, disproportionate contact between police and minorities has increased. In rural jurisdictions, incarceration rates have increased, and prosecutors have seemingly become less reform minded. This Article casts suspicion on progressive prosecution. It questions whether such an appellation should exist given the current nature of the prosecutor’s job in the United States. It also serves as a warning; although such prosecutors have become more common in large cities, practitioners and scholars should not forget that reforms that occur in large jurisdictions sometimes do not extend to those suffering injustices in small communities.

Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts. Duties to statewide voters derive from the fact that state legislatures create the criminal codes that prosecutors enforce. State government also funds some of the work of local prosecutors, but that funding is not sufficient to allow full enforcement of the criminal law. The state-level polity, therefore, empowers the local prosecutor to allocate scarce resources and to decline charges—even for entire categories of cases—as a means of promoting public safety that matches local conditions. Local prosecutors can meet their obligations to the statewide polity by framing their policies as rebuttable presumptions against filing charges and by justifying those policies as a reallocation of limited resources. Duties to the local polity can add further legitimacy to a prosecutor’s declination policy. Local views about the relative importance of crime should matter, particularly in circumstances where local governments fund aspects of court operations, the effects of crime and law enforcement are concentrated locally, and state law grants autonomy to the local prosecutor.