State legislators are emerging as the biggest threat to prosecutors leading the movement for criminal justice reform, according to a paper published in the Illinois Law Review online.
The legislative “preemption” of prosecutors elected to office on progressive platforms to reduce incarceration and provide more racial equity to the system has effectively turned many statehouses across America into formidable barriers to change, writes Nicholas Goldrosen, a Ph.D. candidate at the Institute of Criminology, University of Cambridge.
“While progressive prosecutors can be powerful means for criminal justice reform, state legislatures matter just as much, if not more,” Goldrosen writes.
The paper offers numerous examples of legislation or state government policies that have either removed prosecutorial jurisdiction over certain crimes or in some cases even displaced the authority of the prosecutor.
In Missouri, for example, the state attorney general has been granted power over certain homicide cases in cities that are not part of a county. There is only one the city that fits that description, noted Goldrosen: St. Louis, where Circuit Attorney Kimberly Gardner has become a major target of critics of her progressive reforms.
Adding to the pressure on Gardner, earlier this month the state’s chief disciplinary counsel found “probable cause” that she committed professional misconduct in connection with an ethics investigation of former Gov. Eric Greitens—a conclusion that will lead to a misconduct probe.
Gardner denied the charges, and claimed the investigation was another attempt by her “political enemies—largely from outside St. Louis”—to remove her and thwart the systemic reforms she champions,” according to media reports.
Similarly, a provision quietly tacked on to a 2019 budget bill in Pennsylvania gives the state attorney general “concurrent jurisdiction” to prosecute certain firearms crimes. The bill was a “targeted volley from conservative legislators toward Larry Krasner, the first-term, reform-minded district attorney of Philadelphia,” Goldrosen writes.
Public anxiety over rising crime rates may also be playing a role in growing backlash against some progressives. Krasner is currently facing strong opposition within his own party in Philadelphia’s Democratic primary scheduled for Tuesday over his 2019 policy to decriminalize drug possession.
Nevertheless, the Illinois Law Review article claims that the legislative maneuvers in states are “part of a concerted effort by state legislatures to preempt progressive prosecution.”
“Just as state legislatures remove discretion from municipalities to make laws over certain contentious areas, the addition of concurrent criminal jurisdiction undercuts local prosecutors’ discretion not to prosecute,” Goldrosen added,
Many of the preemptive bills in statehouses were aimed at prosecuting individuals arrested during the Summer 2020 racial justice protests across America, Goldrosen writes.
Moreover, Goldrosen says his research shows that many of the emerging preemptive legislative bills were targeted at prosecutors in cities with large Black populations.
Goldrosen argues that reformers need to shift their attention to statehouses if they want to protect the prosecutors who came to power on the strength of widespread discontent with the racial disparities of the justice system, noting that the legislative acts were largely approved by lawmakers representing white majority areas in their states, but had the biggest impact on predominantly Black urban areas.
“Progressive prosecutors do have immense power to lessen the cruelties and inequities of the criminal justice system in the day-to-day decisions they make, especially in the face of legislative inaction.
“While one does not have a right not to be prosecuted, one does enjoy a right against racially motivated selective prosecution.”
Resisting preemptive laws entails a political battle, not a legal one—and it reflects the limits of prosecutors powers, Goldrosen wrote.
“The structural weakness…local prosecutors is that they can be preempted and stymied by the state legislature, just as municipalities can.”
“The lesson of the new preemption is that the battle for criminal justice reform must be fought not only in the courthouse, but also in the statehouse.”
Nicholas Goldrosen is a M.Phil Ph.D. candidate at the Institute of Criminology, University of Cambridge. Goldrosen’s particular area of interest is understanding how police react to criminal reforms, and how we can imagine a society in which we prevent and respond to harm.
The full paper can be accessed here.
This summary was prepared by TCR staff writer Andrea Cipriano.