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The New Prosecutors: Can a new batch of progressive district attorneys make transformative change, or will they tinker at the margins?
This month, at least eight reform-minded prosecutors take office in cities across the country. They won their races against “deeply entrenched tough-on-crime attitudes,” according to the Associated Press, promising to reduce incarceration and increase compassion for those with drug dependencies, those with mental health needs, people of color, and, in general, underprivileged people. But this new crop of prosecuting attorneys is already facing staunch resistance to reforms not only from police and sheriffs, but also from prosecutors in their own offices “who are accustomed to decades-old policies of locking up defendants as long as possible.” [Denise Lavoie / Associated Press]
In St. Louis, Wesley Bell was sworn in Tuesday after defeating longtime prosecutor Robert McCulloch. On his second day in office, Bell made changes to his office’s approach to low-level crimes, bail, and discovery, but he received more attention for another decision: firing veteran prosecutor Kathi Alizadeh, who was primarily responsible for presenting evidence to the grand jury that declined to indict the Ferguson police officer who shot and killed Michael Brown in 2014. [Joel Currier / St. Louis Post-Dispatch] As we discussed in our 12/18/18 edition, assistant prosecutors in Bell’s office took a contrary stance before Bell even took office, when they voted to join the St. Louis police union.
Before she took office as district attorney in Boston, Rachael Rollins, who ran on a promise to stop prosecuting minor crimes, said she wanted to ask the prosecutors she would soon be supervising a question: “Why did you apply for a job where you would be putting people of color in jail every single day?” Now, Rollins and members of her transition team have been meeting with dozens of people who work at the Suffolk County district attorney’s office. “Essentially,” reports the Boston Globe, “they are interviewing to stay in their jobs.” [Maria Cramer / Boston Globe]
The Dallas Morning News reported last week that the incoming Dallas County district attorney, John Creuzot, who ran on a platform of reducing mass incarceration, fired 12 people, including the heads of several divisions, before he took office. One of the prosecutors he fired had withheld evidence in a capital murder case, leading to the conviction being overturned. [Tasha Tsiaperas / Dallas Morning News] During his first year in office as Philadelphia district attorney, longtime civil rights and criminal defense lawyer Larry Krasner, let go about 30 assistant prosecutors—10 percent of the lawyers in his office.
But in a stinging rebuke to the celebrations that usher these new prosecutors into office, the Harvard Law Review has published a note arguing that these political skirmishes are the tip of the iceberg when it comes to the challenges facing progressive prosecutors in their quest to transform the system. The note examines the “agency costs”—those costs incurred by the distance between the principal’s desires and the agent’s desires—and how those will be high when the principal is a progressive elected prosecutor and the agents are line prosecutors and police officers. “Perhaps the most brazenly defiant agents will be fired,” the author writes, but “[t]here exists a range of subtle acts of defiance that can undermine a chief prosecutor’s progressive agenda.” And in an adversarial system, prosecutors want to win. The author also notes that diversion programs can magnify inequality, and that the overall gains of electing progressives might be short-lived as voters’ tastes shift. [Harvard Law Review]
“You have three options when presented with a piece of moldy bread. First, you can eat the bread. Perhaps you think that mold is not that harmful to eat. Second, you can cut around the mold spores, trying to eat just the nonmoldy parts. This is an imprecise process, so sometimes you will eat mold that didn’t get removed. And maybe, in your hunger, you’ll be tempted by bits on the edge with just a little mold—you are hungry, after all. Third, you can refuse to eat any of the bread because, to you, a piece of moldy bread is just not salvageable. Insistence on maintaining the status quo in the criminal legal system due to some delusion that it’s not oppressive is akin to eating the moldy bread. Advocating for more progressive prosecutors is akin to cutting around the spores. That might be better than going hungry, but it’s still unsatisfying, and risky. This Note pleads with people to stop eating moldy bread.” [Harvard Law Review]
“[T]weaking the criminal legal system by introducing nontraditional prosecution methods ignores the fundamental truth that this system was never intended to keep marginalized people safe,” the author continues. “Counteracting the harms of an inherently punitive institution requires transformative reforms.” Progressive prosecution, on the other hand, is a “reformist reform,” which “misdiagnose[s] the depth of the problem” by attempting “to fix broken systems without realizing that these systems are ‘working to re-entrench and legitimize current power arrangements.’” The note argues instead for transformative reforms that disrupt the power imbalance between the prosecutors and the prosecuted, and integrate the prosecuted into the process of crafting these reforms. There is no doubt that people living under progressive prosecutors “have enjoyed meaningful benefits,” but “it is troubling that these benefits are so fortuitous—they are a product of how a prosecutor exercises her power.” Instead, we should confront a “regime controlled by dictators: not by asking them to be nice, but by demanding an entirely different form of government.” [Harvard Law Review]
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