Seven Steps for Progressive Prosecutors

Posted in: Criminal Law

As I have often noted, we will not have genuine reform of the carceral state until we change our vision of criminal justice. Without an alternative orienting philosophy, the most we can expect is tinkering around the edges. In prior articles, I suggested the criminal justice system should be radically reorganized around three principles: dignity, community, and equity. People have a right to dignity and respect; communities deserve to thrive; and the state has an obligation to be fair and racially equitable.

Readers have asked me to elaborate on these principles. What do they mean at the practical level? Of course, the answer will mean different things for different actors in the system. But I thought I would take this opportunity to sketch a response for the prosecutorial function. What should a progressive prosecutor do to make these principles a reality?

Piecemeal initiatives are not the solution. Brooklyn DA Eric Gonzalez, for instance, recently announced that his office would consent to parole at the initial hearing for all who entered plea negotiations with his office. And in 2018, the Brennan Center for Justice compiled a list of 21 “practical steps” that prosecutors can take to make their offices more just. But as helpful as they might be, these disparate steps are no substitute for an alternative organizing vision that guides the operation of the prosecutorial function.

Though this is not a comprehensive list, here’s a start at what a progressive prosecutor must do to advance the goals of dignity, community, and equity:

1. Be Purposeful. The defining quality of hegemony is to render itself invisible. Most people unthinkingly adopt the logic of the carceral state because they literally cannot imagine anything else. It is all they have ever known, and therefore presents itself as the obvious and—even worse—the only solution to whatever problem they perceive. Pregnant women are using drugs? Lock them up. The city is broke? Ramp up arrests and increase fines and fees. The hegemony of carceral logic makes it seem the natural solution to nearly any social problem.

For that reason, change must be painstakingly purposeful. Every discretionary choice that advances a defendant into or through the justice system must be taken only after a prosecutor has consciously satisfied herself that the step helps the community thrive, advances the interests of racial equity, and protects the dignity of all involved. At each step, if she cannot articulate how it helps the community, advances racial equity, and protects dignity, she must not go forward. Whether the choice is at the beginning or end of the process—from initial charging to final sentencing—the progressive prosecutor must always keep the organizing principles in mind. Eventually, as a new way of thinking takes hold and becomes intuitive, the process will become automatic. But for now, it is essential that she be deliberate.

2. Minimize Harm. Implicit in the obligation to be purposeful at each step of the process is the corollary obligation to inflict no more damage than is strictly necessary to achieve legitimate goals. It may be, for instance, that a particular case calls for a term of imprisonment, despite its damaging effect on the welfare of the community. But in that case, the term of imprisonment must be no longer than necessary, so that the damage to the community and the interests of racial equity are held to the absolute minimum. And under no circumstances may the conditions of imprisonment deprive a defendant of his dignity. A progressive prosecutor must recognize her awesome power and do no more harm than is necessary to accomplish her properly defined goals.

3. Reject Habit for Habit’s Sake. Few expressions impede reform more effectively than, “Because this is how we have always done it.” Progressive prosecutors must be attuned to the evidence regarding the impact of criminal justice policy on individual dignity, racial equity, and community well-being. They must be prepared to revisit long-held practices and shibboleths that prove inimical to the three principles. For example, a growing body of research demonstrates that community-based alternatives are more effective than incarceration in reducing future illegal behavior among young people. In short, children do better when they stay with their families and communities. Knowing this, progressive prosecutors must adopt the view that incarceration for youth should be a last resort rather than a first impulse, regardless of what their office may have done in the past.

4. Form Partnerships. The best police departments recognized long ago that you cannot build a house with handcuffs. They learned, in other words, that the tools available to the police are not apt to solve the problems that lay at the root of much criminal behavior. If that is true for the police, it is even more so for prosecutors. For that reason, a progressive prosecutor who accepts the challenge of advancing racial equity and improving communities must do as progressive police have done for years: form genuine, transparent partnerships with the many neighborhood organizations, businesses, Houses of Worship, and residents that make up the community, and leverage those partnerships to develop place-based solutions to communal problems.

I have written many times about place-based problem solving by the police. It is far less common among prosecutors, who claim to act on the community’s behalf but are disinclined to spend time in church basements or with neighborhood groups. But progressive prosecutors must learn what every good cop already knows: The community is not the problem; the community is the solution.

5. End the Poverty Tax. In an age of municipal austerity, one of the most pernicious and morally bankrupt developments has been an increasing determination to finance local government on the backs of the poor. Collectively, fines, fees, and bail impose a staggering cost on people of limited means and the communities in which they live. The trend has been abundantly well-documented, and still it continues. Yet the poverty tax violates all three principles of progressive prosecution. It stigmatizes the poor by making wealth the key to the jailhouse door, vacuums billions of dollars out of impoverished communities, and intensifies racial inequity. Because it is so pervasive, the poverty tax affects vastly more people than prison, and bringing it to an immediate end could do more to alter the landscape and logic of the carceral state than any single sentencing reform. Progressive prosecutors must vow to end the poverty tax.

6. Leave the Silo. If a progressive prosecutor adheres rigorously to the three principles, she will do much to dismantle the carceral state. But no actor in the system operates in a silo, and a prosecutor must also use her considerable legal and moral power to influence the behavior of other actors in the system. For instance, very recent research suggests that aggressive, proactive policing strategies like zero tolerance may themselves be criminogenic. At least, police contacts as a part of these strategies seem to increase the likelihood of future delinquent behavior among black and brown youth, even after controlling for other variables like prior involvement in the justice system. This, of course, damages communities and increases racial inequity.

Knowing this, progressive prosecutors cannot shrug their shoulders and say, “I do not control the police.” Instead, they must use their legal and moral power to limit or end such strategies. For instance, they must not charge or seek to detain people arrested during these strategies, and must use their power of persuasion—publicly or privately—to convince the police to end them, replacing saturation policing with more targeted approaches like precision policing, or even better, with alternatives to arrest. In short, leaving the silo means that progressive prosecutors must encourage every actor in the system to abide by the same principles as she does, whether that means opposing the use of solitary confinement by the sheriff, shackles by courtroom deputies, or mandatory minimums by legislators. She is an agent of systemic change, and not merely a step in a static process.

7. Do Justice, Not Law. Finally, prosecutors must recognize that the Supreme Court has long aided in the creation and expansion of the carceral state. As a result, the Constitution tolerates much that a progressive prosecutor must not. The Fourteenth Amendment, for instance, is not offended by criminal justice strategies that have a grossly disproportionate impact on the poor and people of color, since except in very rare cases, the Equal Protection Clause demands proof of intentional discrimination by individual decision-makers, or so the Supreme Court believes. But the question for a progressive prosecutor is what justice demands, not what the Constitution permits. The mere fact that an action may be lawful does not obviate the prosecutor’s obligation to ask whether it is also consistent with dignity, community, and racial equity.


Some will protest that these steps are still too general. But more specificity may be both impossible and unwise. The application of these steps will vary from location to location and will depend on countless variables. Some prosecutors will have an ally in the chief of police or county sheriff but find the state legislature entrenched in a carceral mindset. Others will have a cooperative public but a hostile bench. Many jurisdictions have well-established community groups with robust participation by residents, all of whom may welcome prosecutors to the table. Other neighborhoods have been decimated by years of disinvestment and deindustrialization, followed by an equally long period of over-policing and misguided prosecution. These neighborhoods may not trust that a prosecutor can be part of the solution. At a granular level, progressive prosecution will mean different things in different places.

But despite this inevitable complexity, if prosecutors take these seven steps—and take them seriously—they will go a long way toward winning the trust of the community and the respect of the other actors in the system. They will also take a much needed step toward dismantling the carceral state. And along the way, they will earn the moniker so many of them are so eager to claim. They will become progressive prosecutors.

Posted in: Criminal Law

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