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December 4, 2023

"'Progressive' Prosecutors and 'Proper' Punishments"

The title of this post is the title of this new book chapter authored by Benjamin Levin and available via SSRN. Here is its abstract:

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform.  That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.”  Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.”  In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor.  Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions of criminal justice reform. 

December 4, 2023 at 02:25 PM | Permalink


"That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor 'progressive.'"

Easy. What makes a prosecutor "progressive" is an ideologically driven instinct to see things as a defense lawyer would see them. This is why quite a few such "prosecutors" have a background as criminal defense lawyers. Fortunately, neighboring Loudoun County recently booted its "progressive" prosecutor and went back to its former, more normal, prosecutor. https://wtop.com/loudoun-county/2023/11/by-razor-thin-margin-bob-anderson-defeats-loudoun-co-commonwealths-attorney-buta-biberaj/

Posted by: Bill Otis | Dec 4, 2023 6:04:38 PM


I would appreciate it if you could provide specific examples of these "ideologically driven instincts to see things as a defense lawyer would see them". What are you talking about?

Posted by: SG | Dec 4, 2023 6:58:14 PM

SG --

How odd that you want me to provide other people's names while declining to give your own. Still, the name of the defeated "progressive prosecutor" is given in the news article I linked, if in your anonymity you'd care to look.

Posted by: Bill Otis | Dec 4, 2023 7:27:22 PM

Don't forget Bill that progressives can be very draconian when it comes to people they don't like ideologically. There's a word for it--anarcho-tyranny.

Posted by: federalist | Dec 4, 2023 7:51:14 PM


Nice attempt at deflection. I simply asked for specific examples of the manifestation of this ideology that you referenced. Didn't ask for anyh "names". Please re-read what I had asked. It's not a very complicated request. So again, what are you talking about?

Posted by: SG | Dec 4, 2023 7:59:38 PM


The “Bronx Defenders” are such an example of progressives and how defense attorneys see things. One thing we know is defense attorneys ❤️ Hamas!

Or, this lovely attorney who enjoys taking a shit into Pringles cans and throwing them at a victim advocacy center. He’s done it at least ten times. This last time because they had the gall to advocate for the family of the child “allegedly” murdered by his client.

He’d make the perfect Soros DA!


Posted by: TarlsQtr | Dec 5, 2023 2:44:28 AM

How about the DAs that did this: https://www.wsbtv.com/news/local/2-accused-burning-down-wendys-where-rayshard-brooks-died-accept-plea-deals/XNNAKY5HRJBX5NOGBBLWK4NP4M/

Posted by: federalist | Dec 5, 2023 9:13:20 AM

I am not sure that any of those four categories are based in reality.

I think that most prosecutors whom I have dealt with -- at least those who do not like having to retry their cases -- are taking the themes of the proceduralist prosecutor to heart. We are constantly learning how we need to change how we do our jobs to avoid setting ourselves up to have to retry cases years or decades later.

Similarly, I have known lots of former defense attorneys who became very strong prosecutors. In the rural parts of the U.S., most attorneys outside of prosecutors office practice some criminal defense (as well as some personal injury, some estate work, some debt collection). As such, when the position becomes open, the candidates to fill the open seat have done some defense work. Being able to think like a defense attorney is a good thing because it helps you recognize the potential holes in your case which are vulnerable to a good defense argument.
When it comes to priorities, based on my experience serving on a bar committee to rewrite our criminal code, most of the criminal defense representatives and the prosecutors agreed on which offenses needed more punishment and which offenses needed less punishment. So when it comes to the prosecutorial progressive, we are really talking slight differences in priorities with most of the perceived differences between conservatives and progressives being how they respond to caseload pressures.

Which leaves us to the last category, the anticarceral prosecutor. I know that there are some examples around the country who come from the hardcore true believer realm of defense attorneys (which is not the majority of defense attorneys) and simply refuse to enforce the law as written because they think it is too harsh. (On some issues,the anticarceral prosecutor is a conservative not a progressive who refuses to accept the legislature's change of opinion on what merits more prison time.) And because some of those folks are in major media centers, they get more attention nationally than their numbers merit.

Posted by: tmm | Dec 5, 2023 10:41:23 AM

SG --

"I simply asked for specific examples of the manifestation of this ideology that you referenced. Didn't ask for any 'names'."

In other words, you asked for names, couching this request in very slightly different terminology, to wit, "specific examples." And now I'm supposed to be bamboozled by this???

Far out!

Not that it makes a difference. You won't be getting any names until you step up and give yours. And it's not that I'm trying just to bug you. To the contrary, as I've admitted before, you made one of the most important contributions to this site by acknowledging (indeed, proclaiming) that defense lawyers have no interest in truth and are just there to pull off the slickest, neatest deal for the client they can.

Thank you!

Posted by: Bill Otis | Dec 5, 2023 10:58:00 AM


For the 3rd time now - I am not now, nor have I ever in the past "asked for names". What gives? Are you that confused?

If this is your attempt to misdirect, mislead, obfuscate, and/or deflect because you are befuddled, confused, or just too plain ashamed to answer that "I have no such examples to offer in response to your inquiry"...then, for God's sake, please just say so. I would expect you to have the courage to answer directly.

Posted by: SG | Dec 5, 2023 1:14:59 PM

SG --

The guy who hides behind the anonymity tree questions the courage of the guy who signs his name every time.

SG, you're going to give irony a bad name.

Posted by: Bill Otis | Dec 5, 2023 10:38:09 PM

Ask Bill just a simple question. Just one. There was no sarcasm, no attack - just a simple question. But apparently, this was just too much for Bill. I was so hoping for a brief but intelligent dialogue with him. Perhaps another time when he is not so paranoid/defensive?

Posted by: SG | Dec 6, 2023 12:37:44 PM

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