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COMMENTARY | Well-intentioned reformers can't fix the criminal legal system. They have to start relinquishing the power.
The public’s growing familiarity and frustration with America’s criminal legal system has brought a new type of prosecutor to power. These so-called progressive prosecutors promise to end mass incarceration and bring fairness to the criminal legal system—by doing things such as declining to prosecute certain low-level offenses, expanding diversion programs, and replacing hard-line assistants with reform-minded outsiders. Liberal activists and politicians, and even a Supreme Court justice, have endorsed this movement as the key to criminal legal reform.
But progressive 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.
These dynamics are clear in the tenure of Cyrus Vance Jr., who has served as Manhattan’s chief prosecutor since 2010 and who recently announced that he will retire at the end of the year. Many attentive followers of this movement don’t consider him to actually be a reformer. But over his career, he has pledged allegiance to the goals that criminal-legal-reform advocates have identified countless times: reducing mass incarceration; keeping out of the system individuals who are driven to commit crime because they lack resources; ending harsh sentencing practices and wrongful convictions obtained through prosecutorial misconduct and other unethical practices; and eliminating racial disparities at all stages of the criminal legal process. He is also embedded in the progressive-prosecutor movement’s institutions, including as an advisory-board co-chair for one of its main educational centers. And because he has been in office for quite a while, he has a meaningful track record available for study. His tenure illustrates the typical progressive prosecutor’s agenda and its significant limitations.
The policies Vance has implemented to achieve his progressive goals are fairly standard. They include declining to charge minor offenses (such as most turnstile-jumping); “diverting” individuals who are driven to commit low-level offenses by mental-health problems, addiction, and poverty into court-supervised programming rather than sentences behind bars; staffing a conviction-integrity unit (to identify and reverse convictions of innocent individuals) and hiring reform-minded line prosecutors; and collecting data about the racial composition of those prosecuted by his office.
But Vance’s claim to being a progressive prosecutor is widely viewed as illegitimate by those who are watching most closely. His critics (with a few exceptions) do not dispute that he has implemented the policies he promised to; they are instead disappointed that he has failed to achieve the goals he set. For example, his office stopped prosecuting most marijuana possession offenses in 2018. But those cases constituted only 5 percent of the misdemeanors his office pursued that year, and he continues to contribute to mass incarceration by sending a disproportionate number of people, compared with other New York City boroughs, to the main city jail complex, Rikers Island.
Vance has touted his office’s involvement in the reversal of wrongful convictions obtained based on false witness testimony—the type of error that can slip past a defense lawyer if she can’t interview a witness because she isn’t aware of their existence until shortly before trial. Yet he has resisted legislation that would require prosecutors to share evidence with defendants earlier in their case; instead, he seeks to protect his prosecutors’ abilities to conduct trial by ambush.
His tenure demonstrates why the progressive-prosecutor platform is unlikely to accomplish meaningful reform: There is a striking mismatch between the movement’s important goals and the inadequate means it employs to achieve them. Vance has enacted the policies he said he would, but we shouldn’t be surprised that they haven’t brought about the change progressives hoped for.
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.
Some prosecutors are taking promising steps in this direction. A group of Virginia prosecutors has expressed support for legislation that would decrease their negotiating leverage, including the new law ending the state’s death penalty and bills that would end mandatory minimum sentences and “three strikes” enhancements for petty-theft offenses. Chesa Boudin, the San Francisco district attorney, has prohibited his assistants from charging people with possession of contraband discovered during pretextual stops except in extraordinary circumstances.
The progressive-prosecutor movement’s supporters should ask more of prosecutors who claim that they are committed to reform. Some cities are heeding calls to reduce funding for police departments in the aftermath of last summer’s demonstrations against police violence following George Floyd’s death. Like police departments, prosecutors’ offices are an integral part of a criminal legal system that commits everyday injustices against citizens. Systemic change requires shrinking the power those offices hold.
Darcy Covert is a staff attorney at the King County Department of Public Defense, in Seattle.