Imagining the Progressive Prosecutor

By Benjamin Levin. Full Text. 

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutor.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: What exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic and public perceptions of the criminal system and its flaws.

This disagreement or definitional slippage matters, and not just for semantic clarity. Some commentators hail the progressive prosecutor as a new champion of fixing the criminal legal system, while others express skepticism about the transformative potential of even the most progressive DAs. To the extent that there are fundamental disagreements, it is critically important to surface them. If resources are being devoted to advancing a progressive prosecutor movement, how unified is that movement? And, do all the voices pushing for a new approach to prosecution actually agree on what that approach should entail?

In an effort to answer these questions and clarify the terms of debate on progressive prosecutors, this Essay offers a typology of progressive prosecutors. Rather than mapping all of the candidates and elected officials who have sought or received the mantle, I offer four ideal types: (1) the progressive who prosecutes; (2) the proceduralist prosecutor; (3) the prosecutorial progressive; and (4) the anti-carceral prosecutor. Each ideal type reflects a different vision of what is wrong with the criminal system and whether (or to what extent) prosecutors might help in righting those wrongs.