Issues

The most contentious action taken by reform prosecutors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate. Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides. How should we think about democracy and categorical declinations? The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray. In this essay, I hope to continue the work begun by Murray, offering additional insights that bear on the relationship of categorical declinations and democracy. Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory—a vision of democracy that is extremely influential, but not taken up by Murray. Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination. State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures. Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined. Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law. The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.

To ensure fairness and safety for all citizens, it is crucial to evaluate the impact of criminal justice reforms. In this article, I argue that some recent statewide criminal justice reforms legislated with the avowed goal of making the criminal justice system fairer have had the opposite result. As a case study of this phenomenon, I focus on New York State’s discovery statute, which went into effect in January 2020. I detail specifically what the law changed and explain the profound impact of those changes on the functioning of local district attorneys’ offices. I then analyze data showing a substantial shift in New York state court outcomes and explore their relationship to discovery reform. Throughout, I highlight ways in which the law has actually created a less fair system for defendants, crime victims, and society as a whole. In particular, I argue that, by forcing local prosecutors to make decisions around expedience and exigence rather than around considerations of justice, the state legislation has harmed overall fairness to the people of New York, whom district attorneys represent. And I propose that the state legislature should—after an honest and thorough evaluation of the data—amend the law to allow local prosecutors to operate in a fairer way.

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level. While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review. Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington. We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched. This local variation is fully consistent with the legislative design. In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole. The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see. This flexible and localized approach in the resentencing arena comports with the dominant model of criminal law enforcement in the United States. In contrast to our European counterparts, we have long eschewed mandatory prosecution models and unified prosecutorial services in favor of letting local prosecutors decide what is best for their communities— subject only to constitutional rules and discipline at the ballot box.

This Article advises caution against over-reliance on local prosecutors’ offices to effect second-look reforms and to filter cases worthy of review. Using the lens of New York’s recent second-look law, the Domestic Violence Survivors Justice Act (DVSJA), I analyze the ways in which the local prosecutor can serve as a functional barrier to statewide implementation of sentencing reform. The New York State Legislature enacted the DVSJA—after advocacy from hundreds of directly impacted individuals, stakeholders, and organizations and after significant opposition from only the District Attorneys’ Association—to change the way the State sentences survivors of domestic violence. The DVSJA also allows incarcerated survivors to seek resentencing under a reduced sentencing scheme. Data from the cases decided in the ’DVSJA’s first five years of implementation suggests that consent from prosecutors is correlated with success in securing resentencing. It also suggests that this consent is unevenly distributed throughout the state. In some jurisdictions, the DA’s office has served almost entirely to obstruct the path to relief. Even in those counties where prosecutors have demonstrated an openness to taking a second look, some categories of cases expose the limits of their willingness to pursue reform. This, I argue, should give us pause about the power of the local prosecutor both to implement and to thwart such statewide resentencing efforts. It offers, in turn, reason to be skeptical about second-look measures that depend on prosecutorial initiation or consent.

Prosecutors face criticism for prosecuting too many minority members and too few police. Recently, some reformers have won prosecutorial elections by pledging to change these priorities. Yet scholars have identified two impediments to police prosecutions. First, county prosecutors often answer to suburban voters indifferent to the excesses of city police. Second, prosecutors depend on those police to investigate their cases and to endorse them as effective. This Article argues that the influence of residents and police on prosecutorial decisions depends on the political geography of a prosecutor’s office. As a result, whether a prosecutor’s office is “city-based,” “regional,” or “state-appointed” shapes a prosecutor’s motivation and decision to prosecute police. Examining nationwide data on charging police, we find that prosecutors are indeed more likely to prosecute police when a greater proportion of their constituents are served by the same police department. This effect is further amplified at higher levels of Black (but not Hispanic) residency. Case studies of specific prosecutorial districts suggest an explanation for this finding. Urban party organizations and Black civil society networks offer a political infrastructure for mobilizing residents against the abuses of police departments. The degree and impact of this mobilization is greater when more of the prosecutor’s constituents fall under the same police jurisdiction, especially when the prosecutor relies on the same political infrastructure to win elections.

Urban reform prosecutors, who are generally elected at the county level, find themselves in a tricky political spot. On the one hand. most urban counties are in many ways “too big” for reformers: they include large numbers of suburban voters who generally dislike reform, in no small part because they are relatively unaffected by the decisions prosecutors make. On the other hand, these counties are also often “too small”: they lack the political power to resist efforts by conservative state legislatures and governors to rein in, if not outright remove, reformers. This Article examines both vulnerabilities. It first maps out the political challenges that more-conservative, whiter suburbs pose for reform efforts in urban counties. And then this Article examines the rising role of state-level pre-emption. Perhaps surprisingly, the results here suggest that the latter threat may be less severe than it initially appears. While state legislators introduce a lot of bills targeting reform prosecutors and reform efforts more broadly, almost all appear to die before passage. It is still important not to understate the risk state-level preemption poses for reformers, but it is also important to acknowledge the limits of such threats and the opportunities available to reformers to push back against them.