Exterminating Angels

The American myth of the progressive prosecutor

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When Kamala Harris spoke in front of the Commonwealth Club of California in the winter of 2010, the presidency wasn’t yet on her mind. Or, if it was—as it usually is for any ladder-climbing politician with a pulse and a dream—she wasn’t going to talk about it. Harris was San Francisco’s district attorney, one year away from narrowly ascending to statewide office. The following year, she would be sworn in as California’s attorney general; in 2016, she was elected to the Senate and is now a top-tier candidate for president, at least in the view of many pundits.

It is unlikely the Harris of 2010 believed that what she was about to say to the Commonwealth Club would be held against her in a future primary race. While the criminal justice reform movement had gained ground in the early days of the Obama presidency, the tragic deaths of Michael Brown, Freddie Gray, and Eric Garner were still several years off.

Harris, then, was on safer ground laughing about locking parents up.

“I believe a child going without an education is tantamount to a crime. So I decided I was going to start prosecuting parents for truancy,” Harris said that day. “Well, this was a little controversial in San Francisco.”

Harris, laughing, broke into a wide smile, the subtext clear enough: the granola-crunching investment hippies in Haight Ashbury weren’t going to like this one.

“Frankly, my staff went bananas. They were very concerned because we didn’t know at the time whether I was going to have an opponent in my re-election race,” Harris continued. “But I said, ‘Look, I’m done. This is a serious issue and I’ve got a little political capital and I’m gonna spend some of it.’”

Harris went on to describe her office as a “huge stick,” with letterhead alone that could compel people to do what she wanted. In a letter to every parent in the school district, Harris outlined the connections between elementary school truancy and a future life of crime. “A friend of mine actually called me and he said, ‘Kamala, my wife got the letter, she freaked out, she brought all the kids into the living room, held up the letter and said if you don’t go to school, Kamala is going to put you and me in jail.’”

A clip of the event, unearthed anew in January, quickly went viral. Progressive critics faulted Harris for joking about jailing parents and misdiagnosing a problem that runs much deeper than a morality deficit or lack of supervision. California public schools are still woefully underfunded, and criminalizing truancy can have the unintended consequence of sending more young people of color to prison. In every sense, Harris’s remarks at the Commonwealth Club have aged terribly, especially as she vies to become the nominee of a diverse Democratic Party that has rejected wholesale its tough-on-crime heritage.

So, fittingly, Harris’s candidacy has sparked new questions on the left. Should a former prosecutor—someone who celebrated putting human beings in cages—be elevated to the presidency? Can someone who held such a position be considered an ally of the ascendant progressive movement? Is prosecuting an original sin? Is the institution, even in an age of reformist prosecutors, beyond redemption?

The final question is the most pressing for the left and arguably the most difficult to answer. Conservatives—even those who have called into question decades of punitive and wasteful policy that imprisoned a generation of black people and shattered countless communities—do not seriously question the role of the prosecutor. They are there to keep us safe. The judge and jury referee but the prosecutor plays; the courtroom, in every sense, belongs to the prosecutor in the United States of America, and it’s on this field where the lives of the country’s most vulnerable are decided every day.

Liberals don’t usually challenge these assumptions either. Legislators and executives are asked to make better laws that help keep innocent people out of prison. Prosecutors, then, are expected to seek justice within this framework. Good laws, it can be argued, make better prosecutors. And prosecutors, with their enhanced sense of discretion, can change lives for the better—as long as good people are elected to these positions.

American Mythdemeanors

It’s important to consider the relative absurdity of Harris’s remarks in a historical and global context. The United States is a hegemon and cultural trendsetter, but it does not see its governing structures replicated elsewhere. Many countries will take our fast food and pop music. They will pass on our uniquely demented presidential system, preferring the suppleness of parliamentary government and executives who do not enjoy virtual immunity. We are both leader and mutant on the world stage: an example of everything to avoid, yet inarguably an influencer.

The second half of the twentieth century would make local district attorneys and federal prosecutors into crusading protagonists of a dangerous myth, one that would destroy the lives of countless black and brown Americans.

American prosecution endures as an anomaly par excellence. The United States is the only country in the world that elects prosecutors. As Michael J. Ellis explained in the Yale Law Journal, local public prosecutors were an invention of colonial America. They were originally appointed and lacked prestige. By the time of the Revolution, the job was only part-time. In state court, prosecutors were paid by the case or conviction; defense lawyers were the stars of the era.

In the nineteenth century, popular democracy fueled the American imagination. Americans wanted more elections, at least for the white men who could vote in them. Reformers believed electing prosecutors would combat corruption and patronage. In 1832, Mississippi changed its constitution to give local voters the power to elect district attorneys, and by the Civil War, most states had followed suit.

At the time, supporters of electing prosecutors gave little consideration to how this trend would affect the criminal justice system. The chief concern was expanding the franchise and making yet another office accountable to voters. The rise of elected prosecutors allowed for the conferral of new power on a post that was once a bureaucratic afterthought. District attorneys, liberated from their status as de facto clerks, gained discretion over when cases could be prosecuted and began to collaborate with newly formed police departments. Almost every state that joined the United States after the Civil War adopted the election of prosecutors, mirroring already existing state constitutions. Today, there are only five states that appoint prosecutors: Alaska, Connecticut, Delaware, New Jersey, and Rhode Island.

The twentieth century brought the cult of the prosecutor. Though no president in modern times served as a district attorney or top prosecutor, one came very close: Thomas Dewey. A Republican from New York, Dewey was emblematic of the institution’s growing glamour. As a young Manhattan district attorney in the 1930s and early 1940s, Dewey crusaded against the mafia, successfully prosecuting organized crime kingpins and other nefarious figures. Destined for stardom, Dewey was elected governor of New York in 1942. In 1944, he was the Republican nominee against Franklin Roosevelt when the New Deal architect sought his fourth term. Roosevelt’s margin of victory was narrow enough to assure Dewey the Republican nomination in 1948, when most pundits predicted he would be elected the thirty-third president of the United States.

One seismic political upset later, Dewey’s political career was over, but Harry Truman could not reverse the tide. The prosecutor was now the leading man. Sure, the American public could swoon over their Clarence Darrows and Atticus Finches. But the prosecutor stood atop the machine, inspiring fear and awe while attracting the attention of a fawning press.

Before he debased himself as Trump’s orcish counsel, Rudy Giuliani was a hustler in the Dewey mold, a New York prosecutor bound for greatness. The two poles of prosecutorial eminence in New York are the Manhattan district attorney and the U.S. attorney for the Southern District, often referred to, half tongue-in-cheek, as the “sovereign district” for the wide discretion the office enjoys. Giuliani was a U.S. attorney and, like Dewey, a Republican reformer who chased the mob.

By winning convictions against mobsters like Carmine “The Snake” Persico, the murderous Colombo crime boss, Giuliani became a hero to New York and national media alike, a young Hercules cleansing the city’s Augean stables. Even otherwise cynical reporters were not immune to the Giuliani mythos. In City for Sale, their investigative tome of 1980s municipal corruption, Wayne Barrett and Jack Newfield portray Giuliani as a white knight with a moral compass that always pointed true north.

Giuliani parlayed his local fame into two terms as New York City’s mayor, and for a time, he was viewed as serious presidential timber. The dream would die quickly in 2008 following humiliation in the Florida Republican primary. It would take another New York Republican, a thuggish real estate developer and tabloid obsession, to propel him into the White House’s inner circle.

In retrospect, Giuliani’s turn as prosecutor-as-hero was exceedingly well-timed: the second half of the twentieth century would make local district attorneys and federal prosecutors into crusading protagonists of a dangerous myth, one that would destroy the lives of countless black and brown Americans. In the late 1960s, violent crime spiked across America and continued to climb over the next two decades—against which Democrats and Republicans united to endorse policies that would fuel an unprecedented incarceration boom. The number of people locked up in the United States has quintupled since the 1980s, ballooning to nearly 2.3 million, a population larger than almost every American city. It is a level of imprisonment far beyond all other liberal democracies.

Enemy Combatants

We are a prison state, but how exactly did we end up that way? Were the police and political elites simply out of control? The journalist Emily Bazelon thinks she has an answer. In her well-researched, provocative new book, Charged, she traces a line directly from punitive prosecution to the prison explosion. “American prosecutors have breathtaking power, leading to disastrous results for millions of people churning through the criminal justice system,” Bazelon writes in the book’s introduction, noting that local prosecutors handle more than 95 percent of America’s criminal docket. “Over the last forty years, prosecutors have amassed more power than our system was designed for.”

In the American system, prosecutors stand even above judges. They answer to no one and make virtually all key decisions in a case.

Bazelon argues that the “unfettered power of prosecutors is the missing piece” in explaining America’s unconscionable incarceration boom. “Our justice system regularly operates as a system of injustice, grinding out unwarranted and counterproductive levels of punishment. This is, in large part, because of the outsize role prosecutors now play.”

Prosecutors and defense lawyers, in the layperson’s conception of the criminal justice system, are perceived as quasi-equals. On shows like Law and Order, a charismatic assistant district attorney jousts with a suave, sometimes garish defense lawyer. They have their own bags of tricks. One will win, one will lose, yet they each have a reasonable shot at victory. It’s simply a matter of who makes the best case, who produces the most scintillating comeback.

Any person who has the misfortune of entering the criminal justice system knows prosecutors and defense lawyers are asymmetrical combatants. This is Bazelon’s point. One has a cache of sophisticated weaponry, each carrying the power of annihilation, while the other waves around a stick, or hopes words are enough. They usually aren’t.

In the American system, prosecutors stand even above judges. They answer to no one and make virtually all key decisions in a case. They choose the charges, make the bail demands, and regularly determine the plea bargains. They can add charges on a whim. They can delay trials indefinitely, letting defendants rot in jail cells. They are the angels of mercy and the executioners. It all depends on which one you run up against.

Prosecutors have another weapon at their disposal: the press. Powerful prosecutors can selectively leak favorable tidbits of their investigations before indictments are even brought. In larger media markets, this is the preferred mode of operation, endangering defendants long before they even make it to trial. Striking details of former U.S. Attorney for the Southern District of New York Preet Bharara’s most high-profile investigations often reached daily newspapers weeks or even months before formal charges were filed. His targets could be tried and convicted in the court of public opinion. His successor, the Republican Geoff Berman, is not so flamboyant, and overeager journalists have been forced to subsist without regular leaks.

Crime Organized

An overwhelming majority of cases in the United States of America end in plea bargains, never even going to trial—a trend that has only worsened in the last half century. Prosecutors can intimidate defendants into avoiding trials and pleading guilty, even if they didn’t commit the crime. The pressure to plea is immense: heading to trial always carries the risk of a far worse sentence if a jury or judge finds a defendant guilty.

For the vast number of people, many of them low-income and nonwhite, faced with this devastating choice each day, there is no way out. Either take the plea and leave with a criminal record or go to trial with an underpaid, outmatched public defender, facing a jury ready to convict you because you match their media-inflected conception of a criminal.

It’s no coincidence that the culture of the late twentieth century valorized a man like Giuliani, a conservative white prosecutor who, when he became mayor, encouraged his militarized police force to crack down on the African American and Hispanic residents of his city in the name of controlling crime. Prosecutors are human beings who take cues from the culture; if the zeitgeist cries out for prisoners, prisoners they will make. More important, many prosecutors are politicians, typically elected in four-year cycles, responsible for meting out justice and glad-handing with the very people (other politicians, the police they work with) they are theoretically charged with trying to lock up.

There is a reason other countries choose not to elect prosecutors—they do not want to reproduce scenes like Kamala Harris’s at the Commonwealth Club in which prosecutors yuck it up about political capital. This is the danger of the system we have inherited from our ancestors. The gravest matters—guilty or innocent, life or death—are reduced to whether prosecutors believe such choices will alter their political futures.

Status Quo Economy

Some have argued that electing prosecutors itself is dangerous. An elected official must single out tangible results for the district he or she represents or champion certain votes that led to direct positive outcomes. The lines of argument are clear: I’ve done enough for you, return me to office so I can do more.

Prosecution is murkier. What is a deliverable? What counts as a win? Most elected prosecutors point to convictions and crime rates. They believe racking up guilty convictions or appearing “tough” on crime will help them get re-elected. One 2015 study found that 95 percent of prosecutors in America are white, fueling a process that is inevitably tortured and toxic: powerful white people, usually men, campaigning to imprison large numbers of people who do not look like them. The progenitors of Jim Crow would be proud.

Elected prosecutors are expected, in most instances, to bring justice in cases where police officers have killed civilians, many of them black. The construct of the office and local electoral politics make this all but impossible. Police unions endorse district attorneys, donating to their campaigns and mobilizing votes. To lock up more people, district attorneys must constantly collaborate with police. Again, Law and Order—accurately this time—regularly illustrates this reality. How can the same district attorney who was endorsed by police and relies on the police to put more people in cages also prosecute them when they break the law? In New York, at least, cases of police killings of unarmed civilians are now in the hands of the state attorney general instead of local district attorneys. The attorney general is also elected but has more remove from individual localities, allowing a degree of impartiality. District attorneys, predictably, have decried this change.

Politicians fall into a similar camp. A district attorney, with rare exceptions, does not get elevated without support from the political establishment and does not remain in power without the help of elected officials and party organizations. The same dynamic that thwarts adequate investigations of police misconduct rears its head when district attorneys, particularly those who want to stick around, target the very politicians who donated money and lent their endorsements and volunteers to the cause. Even when district attorneys pursue political corruption cases, the public is left to wonder how fair they can really be. The party boss helped put the district attorney in office; the young black man just prosecuted on a marijuana possession charge did not.

Shiny and Merciful

We are now in the era of the reformist prosecutor. This is a new phenomenon. The criminal justice reform movement, which has gained most of its steam in the last decade, only recently expanded its focus to electing new prosecutors. The liberal billionaire George Soros began spending millions in 2016 on efforts to elect African American and Hispanic district attorneys who share his goal of reducing racial disparities in sentencing. Soros knows how to get bang for his buck. It costs less to elect a district attorney than a senator, and the senator will never have such a tangible and immediate influence on the lives of thousands of people like a district attorney can.

For progressives, there are now shining beacons. Larry Krasner, the new Philadelphia district attorney, is a former public defender who ended cash bail in many cases, sought more lenient sentences, and forced his prosecutors to explain for the public record why taxpayer money should be spent to incarcerate a particular defendant. In 2018, Krasner’s office worked to expand a public list of police officers who lied on duty, used excessive force, violated civil rights, or racially profiled.

In Chicago, State Attorney Kim Foxx raised the threshold for felony theft prosecution to reduce the number of shoplifters who go to jail. Mark Dupree, the district attorney in Kansas City, Kansas, created a unit to scrutinize old cases with questionable police practices. And Rachael Rollins, the new district attorney in Suffolk County, Massachusetts (which includes Boston), won office last year promising to end prosecution for low-level, nonviolent crimes.

Bazelon and other observers believe the best hope for undoing the damage of the mass incarceration age is the election of more progressive prosecutors. They are optimistic that this groundswell, a product of the Civil Rights movement, Black Lives Matter, and even libertarian skepticism of government overreach, can begin the work of permanently altering a system that has existed largely to shackle poor and black people.

Eric Gonzalez, elected Brooklyn’s district attorney in 2017, got his start in the tough-on-crime 1990s. He is now one of the leading progressives and a subject of Bazelon’s book, in part because he is guiding the criminal justice system of one of the most populous counties in America. In April, he announced he would no longer contest most parole cases. This is the mode forward-thinking prosecutors now operate in, and it’s a welcome change from fifty years of deliberate punishment. The progressive sets aside (some) of their weapons in the name of justice.

In terms of how the word “progressive” is understood in our political context, the prosecutor who champions reform is not like the senator or presidential candidate proposing a bevy of new policies and laws to strengthen the social safety net. Progressive prosecutors don’t want more government in people’s lives—ultimately, they want less. Progressive prosecution concerns the restriction and negation of power. It’s about discretion.

“The Progressive Prosecutor’s Handbook,” a guide published by UC Davis Law Review, suggests the new breed of prosecutors allow for internal appeals and reviews of wrongful convictions; disclose exculpatory evidence; avoid the pursuit of fines, forfeitures, and fees; reduce case delays; pursue independent and transparent investigations of police shootings; and diversify staff. The new progressive prosecutors adhere to many of these benchmarks, and candidates for the office, at least in Democratic-leaning areas, are in support of many of these initiatives.

Cutting the Dragnet

Reform movements are confined by institutions until they seek to topple them altogether. Progressive policing practices can’t negate the reality of an armored human being with a uniform, a gun, and handcuffs. Prosecutorial reformers—or those who look to elections as the answer—are dependent on the wisdom of individuals and a political climate that encourages their best instincts. Give Eric Gonzalez or even Larry Krasner another violent crime wave of the likes we saw forty years ago, and will they keep restraining themselves? As voters, who do not pay much attention to the nuances of a district attorney’s office, cry out for more convictions in the erroneous belief that these alone will halt rising crime, will these prosecutors be able to defy popular appeal and stay the course?

Today’s progressive prosecutor is working to strip away the armaments, to present a softer veneer—but they haven’t quite vanished. Crime is a social and economic problem, and the prison-industrial complex has not brought healing. Most reform comes at the provisional discretion of sage prosecutors; few laws are being written to strip them of their awesome power.

Few have called for defunding or shrinking prosecutor offices altogether. This is still a radical suggestion outside the lexicon of most reformers.

Prosecutors’ offices are complicated organisms. The largest employ hundreds of lawyers, investigators, and support staff. The elected district attorney can only keep so much watch over the so-called line prosecutors who are in the grind, handling cases daily. Just as important, the elected district attorney is not about to shrink the office permanently or limit its scope. He or she merely sets some power aside for what is, naturally, a limited amount of time, since they can all only serve in office or live so long.

The institution will only allow reforms to go so far, so maybe progressives should place less faith in well-meaning prosecutors operating in a retrograde system. This is thrust of a recent argument in the Harvard Law Review, “The Paradox of ‘Progressive Prosecution.’” Reformers ask prosecutors to restrain themselves in an environment that allows for near unlimited leverage over defendants. In sprawling offices that process many thousands of people a year, this is a daunting task, especially when most lawyers who seek to work in district attorney’s offices are conditioned to “win” cases and score convictions.

What about the jurisdictions that won’t embrace progressive prosecutors at all? Many of the African Americans most victimized by our system are clustered in the Republican-controlled Deep South. If a conservative majority won’t allow Krasners to take bloom in all the counties and municipalities that regularly send Republicans to the state legislature and Congress, criminal justice reform remains theoretical to those who desperately need it most. There are more than 2,300 prosecutor offices in America and the zeal for change has not taken root in many of them.

Few have called for defunding or shrinking prosecutor offices altogether. This is still a radical suggestion outside the lexicon of most reformers—much like calls to end cash bail, which can lead to questions about the morality and efficacy of jails existing in the first place. To keep black and brown bodies outside the dragnet of prosecution, it only makes sense to reduce the net or cut it altogether. What this will look like remains to be seen.

Any movement toward a narrower, weaker mode of prosecution is guaranteed to spark backlash, especially in an era that so readily manufactures psychological threats, whether it’s terrorism, immigration, or fears of fresh crime waves. Even the most noble-seeming people, when handed power, are loath to surrender it permanently. Kamala Harris enjoyed it, after all. As she said, she had a little political capital. Now she’s spending it.

Ross Barkan's debut novel, Demolition Night, was published last year. An award-winning journalist and former candidate for office, he is a columnist for the Guardian and a frequent contributor to Gothamist. He has been a columnist for the Village Voice and his journalism and essays have appeared in a wide variety of publications, including the New York Times, the Washington Post, The New Yorker, and the Columbia Journalism Review.

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