The wave of so-called progressive prosecutors elected around the nation signals a return to the “checks and balances” originally envisioned in the U.S. justice system, according to a law professor at William & Mary Law School.
The eclipse of so-called “kings of the courtroom” —prosecutors with unchecked power—could restore fairness to the system, but it depends on the willingness of prosecutors themselves to change their culture, writes Jeffrey Bellin.
In an essay reviewing Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, a book by Emily Bazelon, a New York Times journalist and member of the Yale Law School, Bellin argues that reformers who focus on lobbying legislators, judges and other political players to curb prosecutorial power are pursuing the wrong strategy.
The Bazelon book represents a critical reframing of that traditional argument, effectively “flipping the script” by placing the onus for change on prosecutors themselves, he wrote.
“This framing of the District Attorney as a check on government overreach can radiate beyond progressive strongholds,” Bellin wrote.
He cited a quote from Bazelon he believed offered a useful roadmap for other jurisdictions:
The power of the D.A. makes him or her the actor—the only actor—who can start to fix what’s broken without changing a single law.
Bazelon has made an important contribution to the debate by establishing that prosecutors “hold the key to change,” wrote Bellin.
Still, he added, the prosecutor-led reform movement also carries with it some dangers.
There’s a contradiction between trying to curb prosecutorial powers and using a prosecutor’s clout in the system to make changes in the administration of justice that critics could justifiably call political overreach or an abuse of the political process, Bellin noted.
Instead, he argued, prosecutors should use their influence to reduce the “severity” of modern U.S. justice.
“Reform-minded prosecutors animated by a principle of lenience would work to broadly ratchet down, not redistribute, the system’s severity,” he wrote.
“As a result, a more robust prosecutorial role would not exacerbate worries about the accumulation of prosecutorial power or the erosion of the system’s separation of powers. A new wave of aggressively lenient prosecutors would be performing, not repudiating, the American ideal of checks and balances.”
According to Bellin, the movement has a greater chance of success if it accepts a dimunition of prosecutorial power in the system.
“Local prosecutors are not (and should not be) benevolent dictators presiding over the criminal justice system— even if we like their politics,” he wrote.
“Instead, the movement can highlight limits on prosecutorial might. Prosecutors can exercise power across two dimensions, and both are restricted. When prosecutors exercise lenience, the local electorate can enforce limits at the ballot box.”
The full essay is available here.
TCR intern Nia Morton contributed to this summary.