Progressive Prosecution: the Oxymoron Reshaping the Criminal Justice System
Lately, public defenders are leaving their positions to work for the other side – the prosecution. To many aspiring public defenders, or even career public defenders, this may appear as a shock that someone who believes in the adversarial system and ending mass incarceration would want to work as a District Attorney. However, because these former public defenders feel so passionately about ending mass incarceration, they are able to recognize that to end racial biases, prosecutorial misconduct, and other factors that have led the criminal justice system to become one of the most punitive in the western world, they must step into the position that holds all of the power – the prosecutor. In the criminal justice system, the prosecutor holds the power to decide whether to bring charges, which type or the severity of charges to bring, and whether to offer pleas. By becoming District Attorneys, former public defenders can begin taking steps to end mass incarceration.
One of the first District Attorneys that has helped lead the progressive prosecutor movement is Larry Krasner. Krasner, a former federal public defender and civil rights attorney, was elected as the Philadelphia District Attorney in 2017. Since he assumed his position, he has advocated for the end of cash bail – which directly impacts low-income clients – for people accused of certain misdemeanors and non-violent felonies; eliminated charging people for possession of marijuana; and implemented reform efforts within the police department by placing unreliable police officers on “do not call” lists, which prohibits them from testifying as witnesses in court. Krasner has even fired thirty-one prosecutors due to their unwillingness to implement these progressive changes.
Not only are former public defenders heading the progressive prosecutor movement, but even former prosecutors themselves are beginning to see that implementing changes within prosecutor officers nation-wide can help to reform the broken criminal justice system. Jamila Hodge, a former prosecutor in D.C., leads the Reshaping Prosecution Project at the Vera Institute. She and a team of former prosecutors train current prosecutor offices to reshape their thinking about delivering justice and promoting public safety. Rather than “justice” meaning winning cases and getting convictions, the Vera Institute teaches prosecutors that “justice” means not only representing the interests of victims and society, but also the best interests of the defendants. Rather than incarcerating each person that comes through the system, prosecutors should be looking at diversion programs – including drug rehabilitation, mental health counseling, and vocational programs – to help defendants reshape their lives. The Vera Institute also helps implement innovative strategies to reduce mass incarceration and promote racial equity. The Institute teaches prosecutors how mass incarceration stems from the abolishment of slavery by incarcerating black and brown people and making inmates perform free labor.
With a new movement comes opposition. Amongst opposing forces are police unions, victim advocacy groups, state and federal politicians, and prosecutors. Attorney General William Barr stated that the progressive prosecutors brand themselves as “social justice reformers,” yet they “undercu[t] the police, letting criminals off the hook and refus[e] to enforce the law,” which is “demoralizing to law enforcement and dangerous to public safety.” While his belief appears justifiable, progressive prosecutors have managed to reduce incarceration rates while simultaneously avoiding increasing crime rates. Rather than undermining law enforcement, progressive prosecutors are working with law enforcement officials to make sure that the system is more fair for people accused of crimes. To do this, progressive prosecutors are reviewing police reports and making sure that defendants’ constitutional rights were not violated, such as their right to privacy under the Fourth Amendment and their due process rights under the Fifth Amendment.
Furthermore, progressive prosecutors ensure that prosecutorial misconduct is not occurring, and if it has, they are holding prosecutors accountable and fulfilling their ethical duty to seek relief for wrongful convictions. Far too often, defendants are convicted while prosecutors intentionally withhold exculpatory evidence, meaning that the prosecutors withhold evidence that shows the defendants are not guilty of the crime they were convicted for. These constitutional violations, known as Brady violations, have led to defendants facing life sentences or even capital punishments. For now, progressive prosecutors are training their employees on ethical duties, reviewing misconduct, and seeking relief for past mistakes. With this, prosecutors can save people from incarceration and change the trajectory of their lives.