ABSTRACT
Progressive prosecutors have been widely hailed as the solution to mass incarceration. This Article argues, to the contrary, that the legal arm of law enforcement can never be the full answer to its problems. While scholars critique police and call to defund and dismantle them, they overlook prosecutors. Building on the work of abolitionist organizers to theorize and critique progressive prosecutors, the Article asks two key questions that scholars have left unanswered: 1) Should the system be changed from within? and 2) Can the system be changed from within? In other words, can reformers prosecute, and can prosecutors transform? I answer the first question with cautious optimism, concluding that prosecutors’ institutional power and ethical mandate to “do justice” can be repurposed to start reversing decades of building the carceral state. As to whether prosecutors can transform the system, I conclude they cannot. Transformation entails ceding power to communities, divesting criminal system resources, and investing in societal supports that actually keep people safe. Prosecutors’ essential function to convict and punish people cannot meaningfully achieve the dismantling of the carceral state or the buildup of alternatives. Three pitfalls in particular impede them: exceptionalism, net widening, and the hero complex.
This inquiry is particularly timely as the progressive prosecutor movement grows and some of the first wave of them face reelection. Despite their rhetoric and reforms, progressive prosecutors are not shrinking their own footprint. None are decreasing their budgets; indeed, most are asking for more resources to “help” people. This Article demonstrates that these prosecutors are not the magic bullet. They are at best a half-measure to achieve real change, and at worst, a “reformist reform” which risks reentrenching and relegitimating the criminal system under new cover. I conclude by gesturing to the limits of all lawyers in fixing the carceral monster they largely created and calling for greater attention to grassroots, bottom-up change.
