In the criminal justice system, it’s a near universally accepted principle that prosecutors hold a lot of power at their fingertips.
As growing numbers of so-called “progressive” prosecutors take office around the U.S., many reformers have come to believe that their power can be used to restore fairness to the justice system and end mass incarceration.
But the developing narrative of electing progressive attorneys to reform the system — while well-intentioned — might not achieve what it hopes for in the long run unless it is backed up by systemic change, argues a forthcoming paper in the Wisconsin Law Review.
“Transformative” change can only be accomplished if prosecutors relinquish some of their power in the system, according to Darcy Covert, a deputy public defender from King County in Washington.
Covert believes the power and money that currently buttress prosecutors’ offices must to go to places and programs that will help stop criminality at its core. Leaving the current system in place is a middle-man approach to criminal justice reform, she maintains.
“If you are a prosecutor truly committed to transforming the criminal system, relinquish your power,” Covert wrote in her paper.
In an argument that echoed activists’ calls to “defund the police,” Covert called on prosecutors to “advocate for the reallocation of funds from prosecutors’ offices — rather than the expansion of diversion programs — to social services to keep the mentally ill, substance- addicted, and poor out of the criminal system.”
As a line public defender, Covert described herself as being “face-to-face with the damage the criminal system causes each day,” and acknowledged she welcomed the leniency towards her clients and the push for reform reflected by the goals of the progressive prosecutor movement.
But she argued that it’s unlikely that the movement’s objectives of ending mass incarceration and finding alternatives to punishment for individuals with mental health or substance abuse issues can be accomplished without radical changes to the prosecutor’s role.
“The success of the progressive prosecutor movement is a once-in-a-generation opportunity for fundamental reform of the criminal system,” Covert wrote.
“This (progressive) movement must go much further to stand any significant chance of achieving its goals.”
The Limits of the Progressive Prosecutor Movement
To gain a deeper understanding of what the movement needs to focus on, Covert explained that learning about its history and place in criminal justice is vital to understanding how to push the “progressive prosecutors” movement into the next phase.
Falling crime rates over the last two decades created space in the public imagination to envision a justice system without harsh punishment and the championing of guilty pleas. Prosecutors like Dan Satterberg in Seattle, George Gascón in Los Angeles, Larry Krasner in Philadelphia, and Cyrus Vance Jr. in Manhattan came to office through reform campaigns that took advantage of the change in public perspective.
The movement brought great value, Covert wrote. In cities where prosecutors followed progressive approaches either overtly or without calling themselves progressives, prosecution of low-level offenses declined.
A premium was placed on treatment and counseling for those whose mental illness or substance abuse had brought them into contact with the justice system. Prosecutors in many jurisdictions have supported diversion programs, decreased reliance on cash bail, and created systems aimed at reversing wrongful convictions and ending racial disparities.
See Also: Bail Reform and Racial Justice
Even those relatively easy reforms elicited angry responses from tough-on-crime conservatives who warned they endangered public safety. The most public opposition came from then-Attorney General Bill Barr, who accused progressive prosecutors of “undercutting the police, letting criminals off the hook and refusing to enforce the law.”
The criticism has left uncertainty in its wake, and doubts about whether the reforms already accomplished will stick are growing.
In Los Angeles, for example, newly elected DA George Gascón is facing open rebellion from some of the attorneys in his own office who do not share his progressive approach.
That’s why reforms should not depend on the political fortunes of a single individual in the prosecutor’s chair, but on systemic change, wrote Covert.
Changing the ‘Political Economy’ of Prosecution
Covert observed for example concerns that critics have raised regarding whether reform is possible outside urban areas.
But overcoming those criticisms requires a transformation of “the political economy of prosecution in a way that will materially advance the movement’s goal.”
That would mean changing the often blunt way “violent crime” is defined in the system. Harsh sentencing guidelines that fail to recognize differences in the severity of offenses or do not take into account contributing factors like poverty and abuse currently constrain prosecutors’ actions.
See also: The ‘False Dichotomy’ of Non-Violent vs Violent Crimes, The Crime Report, Feb. 3, 2021
A lack of transparency means that the public is not provided with all the mitigating factors in a case, and as a result is likely to support harsher forms of punishment—and oppose “progressive” approaches.
Getting support for progressive approaches to mental health care also depends on the public seeing offenders as human beings rather than criminals. But that also means getting greater legislative support for funding alternatives to punishment, where the prosecutor’s office isn’t involved at all.
Covert wrote that prosecutors in the progressive movement should actively lobby for a “stronger indigent defense system” that puts more external limits on prosecutorial power.
Other recommendations offered by Covert include:
- Shift the community rhetoric around crime and criminals;
- Support state and local initiatives to revive criminal defendants’ equal protection rights;
- Support legislative and judicial limits on prosecutorial power; and,
- Demand transformation rather than be satisfied with progress.
The answer to long-term prosecutorial change is to shift the focus from emboldening the prosecutor’s powers to empowering citizens caught up in the system, Covert wrote.
“Prosecutors who are committed to transforming our broken system must be willing to weaken the power their own office wields in order to protect criminal defendants from themselves and their assistants, as well as their successors,” Covert wrote.
“Through these shifts, we can harness this moment when criminal justice reform tops the national agenda to implement truly transformative change.”
Darcy Covert is a Staff Attorney at King County Department of Public Defense in Seattle.
The forthcoming paper can be accessed here.
Andrea Cipriano is a TCR staff writer