A growing number of district attorneys nationwide have been elected to office on a “progressive” platform. But, how can you tell if your local prosecutor is as progressive as he or she claims?
As U.S. voters prepare to go to the polls this fall, a recent Harvard Law & Policy Review offers a consumer’s guide to “help advocates separate the bona fide progressives from those in sheep’s clothing.”
An analytical framework is necessary “because not all seemingly progressive district attorneys are in fact pursuing meaningful criminal justice reform,” warns Heather Pickerell, the author of an article that provides 14 metrics against which a DA’s commitment to criminal justice reform can be measured.
The metrics run the gamut of prosecutorial policies from bail reform to the death penalty, from decarceration to diversion and non-prosecution, and from wrongful convictions to police brutality and accountability.
For each benchmark, the author grouped prosecutors’ potential actions into three categories: theoretically most progressive, potentially progressive, and “outer limit.”
For example, within the bail reform metric, the most progressive stance would be to refuse to seek cash bail in any case, including felonies and violent crimes.
A potentially progressive stance includes requesting cash bail only for non-major or nonviolent crimes, supporting efforts to eliminate cash bail, and promoting bail funds.
Meanwhile, an outer limit would be to refuse to reduce requests for cash bail in any case.
The author generated the metrics by reviewing existing research and literature on the criminal justice system, relying particularly on the Brennan Center for Justice’s 21 principles for modern prosecution, Fair and Just Prosecution’s briefs for prosecutors, and Stanford University law professor David Sklansky’s “handbook” for progressive prosecutors.
These metrics, and the framework they provide, strike an appropriate balance between accounting for “the totality of each DA’s circumstances” and “drawing clear lines between progressive and non-progressive prosecution practices,” explained the author.
Constituents who wish to assess the extent to which their district attorney is progressive should follow three steps.
First, they should review the 14 metrics and “add weights to each metric depending on the specific context and history of the county’s DA office, criminal justice system, politics, and community needs.”
To explain the need for weighting metrics, the author wrote, “No two prosecutors serve the exact same community.
For this reason, “not every metric applies to every prosecutor in equal fashion.”
For instance, “readers cannot compare the capital policies of DAs in non-death penalty districts with DAs in death penalty states,” according to the article.
Second, and arguably most important, voters should compare the district attorney’s policies and actions against each metric.
This includes analyzing:
- Whether the prosecutor in question falls outside the metric’s outer bounds;
- How far away the prosecutor is from the most progressive version of the metric; and
- How the prosecutor’s policies for each metric compare with those of their peers.
Third, the assessor ought to conduct a “totality analysis,” summing up the analyses conducted in steps one and two.
Doing so enables voters to label their county’s district attorney as progressive, non-progressive, or even regressive.
To illustrate the three-step process, Pickerell compared 21 seemingly progressive prosecutors’ policies against seven metrics.
These district attorneys included Beth McCann of Denver, Co.; Kim Foxx of Chicago, Il.; Larry Krasner of Philadelphia, Pa.; and Wesley Bell of St. Louis, Mo.
As for bail reform, the author found that “there is no record of any prosecutor adhering to the most theoretically progressive version of the metric.”
The author explained that individuals like Bell, Krasner, and Foxx who ended cash bail requests for nonviolent and minor crimes fall in the potentially progressive category.
Meanwhile, McCann is a bit less progressive than the three previously mentioned because she refused to eliminate cash bail for such crimes.
With respect to capital punishment, McCann, Krasner, and Bell are among the most progressive district attorneys in the country. All three work in death penalty states, yet they publicly oppose and do not seek the death penalty.
Actions like these place McCann, Krasner, and Bell in the most theoretically progression version of the metric.
As for holding law enforcement officers accountable, the author explained that many prosecutors “have made progress condemning and addressing police brutality against people of color.”
For instance, Foxx and Bell defeated their counties’ incumbents by emphasizing their opponents’ failure to prosecute officers who shot and killed LaQuan McDonald and Michael Brown, respectively.
Likewise, Bell works with 55 police departments to expedite and ease law enforcement’s interactions with his office.
Krasner created and released a list of 29 untrustworthy police officers who are not to be called as witness in criminal cases.
However, McCann failed to file charges against the Denver police chief and deputy chief, both of whom illegally withheld a letter requested under the Colorado Open Records Act.
Despite the comprehensive nature of her three-step framework, the author conceded that “promulgating a list of metrics is difficult because it is impossible to generate a single progressive roadmap for prosecutors.”
Nevertheless, she added, “in an era when the public is increasingly interested in electing prosecutors who stress criminal justice reform, academics must educate communities about what their district attorneys are doing and how to evaluate them.”
She continued: “This framework and these comparative illustrations merely provide the groundwork for members of the polity to size up their local prosecutor and vote wisely.”
Pickerell’s full paper can be accessed here.
Michael Gelb is a TCR News Intern. Readers’ comments are welcome.