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June 16, 2021

"The False Hope of the Progressive-Prosecutor Movement"

The title of this post is the title of this recent notable Atlantic piece by Darcy Covert that is summarized via its subheadline: "Well-intentioned reformers can’t fix the criminal legal system. They have to start relinquishing power."  I recommend the piece in full, and here are some excerpts (links from the original):

[P]rogressive prosecutors’ approach won’t bring about meaningful change.  The progressive-prosecutor movement acknowledges (as research has shown) that prosecutors’ “breathtaking” power is a major source of America’s criminal-justice problems.  It asks its adherents to use that power for good, and trusts them to do so. But true reform won’t come from using that power for good; instead, prosecutors will need to have less of it in the first place.  It is unrealistic to expect that even reform-minded prosecutors (or anyone, for that matter) can and will dispense justice when they have virtually boundless power and almost unlimited discretion to use it against criminal defendants.  To transform the criminal legal system, prosecutors must stop resisting — and indeed start supporting — efforts by courts and legislatures to reduce their power....

Declining to prosecute minor offenses won’t end mass incarceration, when most individuals in prison are there for violent crimes.  Diversion programs, which offer treatment only to those willing to comply with onerous supervision requirements and face jail time if they slip up, won’t keep large portions of people affected by mental illness, addiction, and poverty out of the criminal legal system.  Studies show that — because of their position in this adversarial system — prosecutors are often unable to evaluate cases with the neutrality needed to systematically identify the innocent and decide how much punishment is necessary for the guilty.  Nor will gathering and publishing data address the disproportionate representation of people of color in the criminal legal system, because transparency is not a cure for the disparities that data show.

Here is a better prescription: If you are a prosecutor committed to transforming the criminal legal system, support the reallocation of power away from your office — by your office, and by the legislature and courts.

Expand the consideration of who should not face criminal punishment beyond those who commit only very low-level offenses.  For example, recognize that even more serious crime is driven by people’s circumstances, including mental illness and trauma, and support treatment rather than jail time for those cases.

Advocate for the reallocation of funds from your office’s budget to social services that keep people out of the criminal legal system entirely, and to the indigent defense system that advocates on behalf of those who are prosecuted.  A first step would be to push for budget increases for the public defenders who represent more than 80 percent of those charged with crimes in criminal courts.  They labor under crushing caseloads that often prevent them from being able to ensure that their clients are not wrongfully convicted or punished overly severely.

Lobby for more external limits on prosecutorial power, such as the elimination of mandatory minimum sentences and other laws that enable coercive plea bargaining.  Advocate for stronger equal-protection rights for defendants of color, including for state courts to recognize greater protections against racist jury selection and pretextual traffic stops, in which police use a minor traffic violation as a pretext to stop and search someone.

June 16, 2021 at 03:35 PM | Permalink

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