A backlash fueled by fear of rising crime threatens to undermine the “progressive prosecutor” movement, just as it has begun to gain traction across the country.
“We can never, ever, underestimate the power of fear to create bad policy,” warns Milwaukee District Attorney John Chisholm. “We are at a time in our nation when people do not feel safe. I think somewhere around the range of 20 million to 25 million handguns were sold in the U.S. last year alone.”
The comparatively small group of elected prosecutors who are using their power to change the administration of justice in their jurisdictions are not only the targets of judges, police unions and legislators who claim they are putting public safety at risk―but of some of the attorneys who work for them.
“There are people in our own offices who believe they are doing good work, who are foregoing opportunities to make more money by working for a big law firm, for whom it’s difficult to hear that what they’ve been doing for five years or 10 years is actually causing more harm than it’s helping,” says San Francisco DA Chesa Boudin.
“They don’t want to believe that an outsider like me, a (former) career public defender, knows better than they do how to be a prosecutor that helps promote public safety.”
Chisholm and Boudin spoke at a panel exploring the prospects for the progressive prosecutor movement at the 16th annual John Jay/Harry Frank Guggenheim Symposium on Violence in America, which ended Friday.
Chisholm, elected in 2007 as one of the nation’s first prosecutors to embody the concept of developing alternatives to incarceration, blamed “false information” and “deliberately manipulated” scare stories about rising crime for the sense of unease that is powering the opposition.
“The progressive message is very difficult to get through,” he acknowledged, noting that he has repeatedly been the target of “conservative dark money” campaigns aimed at unseating him.
Boudin, who has been under fire for his policies since he was elected in 2020, told the panel that the only way to counter the opposition was to “let the data speak for itself.”
“There are so many people in police unions and conservative TV talk shows who would swear to you that if you reduce the jail populations (and) the prison populations, crime will surge,” he said. “They would have you believe that people who are incarcerated are all dangerous and violent, and if we don’t have them behind bars, they will harm us.”
However, he added, since San Francisco began reducing the number of people sent to jail―by about 40 percent—”we saw a virtuous cycle where crime rates also fell. And because police were bringing fewer people to jail, it was easier for us to focus resources on finding safe re-entry for those who were still there.”
The progressive movement captured media attention in 2016 when a handful of self-described reformist prosecutors swept into office in Chicago, Philadelphia, Boston and a sprinkling of other major cities.
Although they represented only a small percentage of the nation’s 2,400 DAs, the jurisdictions where they emerged as victors accounted for a large portion of the nation’s jail population, noted Miriam Krinsky, founder of Fair and Just Prosecution, an advocacy group supporting progressive reforms.
The movement continued to gain traction in last fall’s elections.
”In November, reform-minded new prosecutors were elected in jurisdictions that represent over 20 percent of our nation’s population,” Krinsky told the panel.
That was a notable change from just a few years ago, when most incumbent prosecutors were re-elected with little opposition.
“Eighty-five percent of the time there wasn’t even a conversation about the job they were doing,” she said, adding that “incumbents are no longer feeling that they hold the job for life.”
Nevertheless, they ignited a ferocious counterattack, epitomized by former Attorney General William Barr, who charged in a speech to the Fraternal Order of Police in August 2019 they were “demoralizing to law enforcement and dangerous to public safety.”
Barr has since been joined by legislators, police unions, judges and even other DAs. In Los Angeles County, newly elected DA George Gascón has faced a revolt from some of his own deputy prosecutors, backed by the California Association of District Attorneys.
Krinsky noted other ominous signs of trouble for the victors.
“We are seeing increasing numbers of women and women of color elected to these offices, but sadly they are receiving a harsher degree of pushback than any other elected prosecutors in the nation,” she said.
Krinsky and the other speakers agreed that just electing more “progressives” would have limited long-range impact unless other parts of the system were transformed.
“Changes are only going to be as good as the weakest link in the system,” Krinsky said, adding that it was just as critical to elect reform-minded judges and sheriffs.
Critique from Reformers
That underscored another increasingly vocal critique of the reform movement from the other side of the spectrum. According to this argument, putting too much emphasis on the role of prosecutors as change agents deflects both resources and attention from the need to rethink how the justice system currently operates.
“(Progressive) policies can be done away with at the stroke of a pen, if these district attorneys are replaced,” observed Darcy Covert, a deputy public defender in Seattle, who recently wrote an article calling for, in effect, a “defunding” of prosecutors by diverting the resources spent on them to community services aimed at helping justice-involved people avoid incarceration.
“In thinking about whether this (progressive) movement will achieve what it wants, my answer is no,” Covert told the panel. “It sets its sights on big change, systemic change, reducing or eliminating mass incarceration…but it’s premised on prosecutorial power, on the idea that if you put good people in these offices, they will use that power for good.
“I am skeptical. Prosecutors who are truly committed to making meaningful and substantive changes in the system should support the reduction of power and resources from their offices, and build up power and resources elsewhere.”
Chisholm said he accepted the point.
Nevertheless, he added, “the perennial [challenge] faced by every prosecutor committed to reform is that there is nothing to divert to.
“We have failed atrociously as a country, because we don’t have a public health system, we have not prioritized giving people safe, affordable housing, we’ve done the exact opposite.”
Still, the system needed a “new generation of prosecutors who are not going to be enamored with the classic law and order vision, of dramatic adversarial contests in court,” he said.
Boudin observed that elected prosecutors were hampered by the political realities of their jurisdictions.
“We are dealing with a world in which, if I get out of the way and stop prosecuting the drug cases that I know are ineffective as a response to the serious challenges we have with overdose fatalities, the money will not be given to public health services or harm reduction or safe consumption sites.
“As a practical matter, the U.S. Attorney will start prosecuting people for the same exact cases, and the U.S. Attorney cooperates with ICE (Immigration and Customs Enforcement Agency) and these people get deported.
“I have defense attorneys who practice in federal court calling me and begging me not to stop prosecuting drug cases.”
Boudin argued that the greater hurdle was to find effective ways to respond both to people who commit violence and to those who feel under attack. Just punishing people would not satisfy the aims of justice to hold people accountable for their crimes, he said.
As an example, Boudin cited his parents, Katherine and David, members of the Weather Underground, who were convicted and imprisoned for their role in a 1981 robbery that left two police officers and a security guard dead.
“When one of the victims of my father’s crime went to visit him, in his prison, when he came face to face with her and understood from seeing her humanity, and hearing her story, the harms that his crime caused, it did more for his understanding and for his compassion, and for his remorse, than any number of decades in a cage could do.”
Additional Reading: 21 Principles for the 21st Century Prosecutor (Fair and Just Prosecution)
Editor’s Note: The 16th annual John Jay/H.F. Guggenheim Symposium was organized by the Center on Media, Crime and Justice at John Jay College, publisher of The Crime Report. A fuller account of last week’s Symposium panels will be available later this week.