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December 13, 2020

"Transforming the Progressive Prosecutor Movement"

The title of this post is the title of this notable paper newly posted to SSRN and authored by Darcy Covert. Here is its abstract:

It is a near universally accepted principle that prosecutors are the most powerful actors in the criminal system.  In response, a new movement has emerged: Its proponents argue that, by electing progressive district attorneys, we can use the power of prosecutors to end mass incarceration and restore fairness to the criminal system without changing a single law.  They propose to accomplish these goals primarily by declining to prosecute certain low-level crimes, expanding diversion programs, and replacing hardline assistants with reform-minded outsiders.  Academics, activists, presidential candidates, and even a Supreme Court Justice have endorsed this movement as the key to change.

With little sustained scrutiny of this development, this Article takes this movement’s objectives as they are and asks whether, as currently framed, it is likely to achieve them.  The conclusion is simple: no.  This movement acknowledges the “breathtaking” power that prosecutors yield, then asks its candidates to use that power for good and trusts them to do so.

This Article offers a more efficacious prescription: if you are a prosecutor truly committed to transforming the criminal system, relinquish your power.  Do not trade the rhetorical appeal of being tough on violent crime for political capital to spend on lenience for low-level offenders.  Advocate for the reallocation of funds from prosecutors’ offices — rather than the expansion of diversion programs — to social services to keep the mentally ill, substance addicted, and poor out of the criminal system.  Rather than hoping to prevent wrongful convictions and over-punitiveness by changing who works in your office, lobby for a stronger indigent defense system and more external limits on prosecutorial power.  To combat racial inequities in the criminal system, support efforts to strengthen defendants’ equal protection rights, instead of simply publishing statistics.  Through these shifts, we can harness this moment when criminal justice reform tops the national agenda to implement truly transformative change.

December 13, 2020 at 09:46 AM | Permalink


Asking people to voluntarily give up power is unlikely to succeed.

An approach that might have more hope is to give/restore more power to other actors in the criminal justice system. Probably the easiest step that could be taken is to allow juries to know about their nullification power. This obviously gives juries more power at the expense of prosecutors.

And if prosecutors know that they can nullify (by choosing not the prosecute), why shouldn't juries be allowed to know that they, too, can nullify?

Posted by: William C Jockusch | Dec 14, 2020 8:44:40 AM

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