Over the past five years, few issues related to criminal justice reform have received nearly as much attention as progressive prosecution, and none boasted a thesis statement nearly as bold: that communities can completely transform their local criminal courts if they elect better prosecutors. Five years into the project, many advocates have begun questioning the validity of this thesis. In jurisdictions that elected progressive prosecutors, “transformation” remains chimerical. Prosecutors have been considerably less able to enact humane, decarceral policies than the movement theorized — and that’s assuming they’re even inclined to try, which many are not. At best, change has been modest and incremental. And in many jurisdictions, very little has changed at all.
To be fair, considering the role they’ve traditionally occupied, the argument for the transformative power of prosecutors made a lot of sense. Chief prosecutors were rightfully believed to be the most powerful individual actors in any local system of justice, due in large part to what appeared to be their virtually unfettered discretion to initiate or decline prosecution. Just as discretion had been abused over the years in the form of coercive charging practices, a more humane use of charging powers — and even more critically, powers of declination — seemed to be the answer to many of the criminal legal system’s problems.
I serve as chief public defender for Arlington County and the city of Falls Church, Virginia, which in 2019 elected a reform-oriented prosecutor. Even where I work, which has done a better job implementing reform principles than most progressive prosecution jurisdictions, I have had to adjust my expectations and accept that the movement may not be able to deliver on all its promises. Fairer, more humane prosecutorial practices make a difference, but transformative change will only come once we reexamine the laws and policies prosecutors are expected to enforce, and overhaul the broader system in which prosecutors, as it turns out, are but one significant cog in a complex machinery of injustice.
Fairer, more humane prosecutorial practices make a difference, but transformative change will only come once we reexamine the laws and policies prosecutors are expected to enforce, and overhaul the broader system in which prosecutors are but one significant cog in a complex machinery of injustice.
Last year, while researching whether judges were rejecting plea agreements proposed by progressive prosecutors, my office surveyed public defenders’ offices in more than 30 jurisdictions that had elected a reform-affiliated prosecutor. We looked at a policy statement from Fair and Just Prosecution, a group that promotes the work of progressive prosecutors, to determine which prosecutors had signed on to it, so we could then focus our survey on them. We were happy to find that rejection of plea agreements was uncommon in these offices. What was common among them, though, was more troubling: the response from defenders that “our prosecutor isn’t really progressive.” That was by far the most common response from all the defenders we contacted.
These responses reflect my experience as a public defender and criminal justice reform advocate in Virginia. As noted, Arlington County is roundly considered to have one of the more competent prosecutors — Parisa Dehghani-Tafti — who are aligned with this movement. Outside of Arlington, though, one would be hard-pressed to find that prosecutorial practices follow the tenets put forth in foundational documents like Fair and Just Prosecution’s “21Principles of the 21st Century Prosecutor.”
Almost as soon as she took office, Prince William County prosecutor Amy Ashworth hired several of the toughest line prosecutors who were laid off in jurisdictions that had just elected progressives. There is running Twitter commentary about the Prince William County office, offered by a defender friend of mine, asking whether whatever mundane injustice of the day is considered “progressive prosecution.” Two recent ones: Is it progressive prosecution to tell a public defender that you are more likely to offer diversion to private counsel? And: Is it progressive prosecution to explicitly argue, on the record, that a person should get a greater sentence because they exercised their right to trial?
Another of Virginia’s self-described progressive prosecutors, who runs an office in the Tidewater area of Virginia, very publicly and disingenuously came out against our legislature repealing mandatory jury sentencing, despite Virginia being one of only two states that retained the practice — and despite our version of jury sentencing being the main contributor to the trial penalty in the commonwealth. Another member of the progressive prosecutor group, although ostensiblymore progressive than others, made an appearance at a legislative hearing to argue against resentencing people serving sentences for marijuana offenses — even after Virginia had legalized cannabis.
Fairfax County’schief prosecutor, Steve Descano, has attempted to lead his office in the right direction. But even as he was claiming publicly that his office would no longer request cash bail, his own line prosecutors, according to defenders in his county, were doing exactly that. Some time ago, another line prosecutor in his office took to Twitter to rebut arguments for public defender pay parity — and progressive prosecutors from Loudoun County and the city of Hampton soon offered similar rebuttals. And as for other institutional initiatives, Descano sought dozens of new prosecutor positions from Fairfax County in the same year that the county’s board of supervisors attempted to slash public defender pay.
Even in Arlington, where I work, prosecutors continue to use threats of punishment, including felony punishment, to coerce behavioral health treatment. Their office has secured three life sentences just since September, which is a big number in a low-crime county like Arlington. They are aggressive not just in cases involving violent crime, but also cases involving allegations of drug dealing — about as aggressive as the previous chief prosecutor, to be honest. Sometimes, it seems like these prosecutors’ view of constitutional criminal procedure and the rights of the defendant depends on the seriousness of the allegations, or on how “bad” they believe an accused person to be. That may explain their defense, which our own defenders have had to fight, of some egregious Fourth Amendment violations by our local vice squad, which has raised the ire of some in the local bar.
But that’s not all. The Arlington prosecutor’s office recently objected to the presentation of mental health evidence in a case that didn’t involve a person claiming insanity. Until July 1, 2021, Virginia was one of the minority of states that prohibited defendants from presenting evidence of their own mental illness in any case unless they relied on the so-called insanity defense. I personally helped write the statute that changed this state of affairs. Nevertheless, the prosecutor assigned to the case had the audacity to argue to the judge a cherry-picked version of what the legislature meant to do with this reform. That prosecutor was successful in his efforts to exclude the proffered evidence, which I don’t doubt played a role in our client being convicted by the jury. Our office is appealing the conviction and the exclusion of mental health evidence, which will likely be the first appellate ruling on the topic.
But more to the point: A progressive prosecutor’s office is leading the charge to neutralize a landmark reform — by narrowing the rights of defendants to present evidence relevant to culpability at trial.
A progressive prosecutor’s office is leading the charge to neutralize a landmark reform — by narrowing the rights of defendants to present evidence relevant to culpability at trial.
I am not alone in my observations. Public defenders across the country are frustrated by the pace of change, or the absence of change, in jurisdictions that elected prosecutors who ran as reformers. Why has progress been slow — and in some instances, imperceptible? Surely many factors play a role, including the backlash to Black women leading prosecutor offices, the fear of a recall, and conservative fearmongering about crime. But several are less obvious and have not received much coverage, even within the criminal justice reform movement. These include the challenge of staffing an office with reform-oriented employees who share the decarceral values of the chief; the “Willie Horton effect,” or apprehension about the police and the media exploiting bad anecdotes; and the willingness of the judiciary to disregard the separation of powers and redefine the scope of prosecutorial discretion.
I’ll address each of them in turn.
Staffing and Office Culture
One of the main challenges facing progressive prosecutors is staffing their offices with attorneys who share their values. In 2019, when Virginia voters elected five reform-oriented prosecutors, there was an immediate need for more than 100 line prosecutors between those offices — prosecutors who not only took a more humane approach to the work, but who also were capable of trying cases, including serious cases. That turned out to be very difficult. Because if you believe the criminal justice system is fundamentally unfair, you probably do not want to put people in cages for a living. And to be frank, that is what prosecution entails.
As a hiring manager for my office, there does appear to be an uptick in law students who understand the mission of progressive prosecution and have identified it as a career path. However, this raises another important issue: New attorneys should not be trying serious felony cases. Prosecution in serious cases means people’s lives are at stake. Mistakes matter. Inexperience matters.
Who are the prosecutors who can try serious felony cases, though? They tend to be seasoned attorneys who have spent much of their careers working in regressive prosecutors’ offices. At each progressive prosecutor’s office, you will find multiple prosecutors who fit this description. They are handed the most serious cases because they’re the only ones in the office with the experience and trial skills to handle them. What’s more, as the most experienced prosecutors in the office, they’re also given management responsibilities. They become deputies, senior assistants, and supervisors, responsible for training and mentoring new attorneys, reviewing plea agreements, authorizing indictments or dismissals, and other tasks that shape the culture and practice of the office.
At every single Virginia progressive prosecutor’s office I’m aware of, there is at least one supervising attorney who fits this description. In fairness, some chief prosecutors leading reform-oriented offices are mindful of this issue, but there still isn’t much they can do about it, except for maybe engaging in a form of deprogramming — in an attempt to break formerly “regressive” line prosecutors out of their most carceral habits. But as they say, old habits die hard, and in a busy courthouse, there’s only so much micromanaging that can be done. I believe this to be a major structural flaw; an obstruction that prevents the values of the chiefs from trickling down to their frontline employees in the courtroom.
The Willie Horton Effect
Many progressive prosecutors seem paranoid about the harsh scrutiny that comes from bad publicity. Unfortunately, the news media isn’t generally an evidence-based institution. They aren’t going to report on how many more people in the system are receiving behavioral health treatment instead of jail time, or positive outcomes in cases where restorative practices were used. Increasingly, the media does not even appear to be objective when it comes to criminal justice. “If it bleeds, it leads,” as reporters say. And so what they prioritize is fear, outrage, and the shock value of one bad anecdote. The Willie Horton effect, as it were.
There has long been a natural symbiosis between police and local media, since police are a major repository of the type of shock journalism that drives page views and cable news ratings. The significance of this relationship has been apparent with respect to progressive prosecution. From the beginning, it became clear to me that many affiliated with Arlington County law enforcement wanted to see our chief prosecutor fail. A truly bush league “recall” effort began (for a time, they weren’t even collecting signatures for the right county). There were rumors of officers keeping a log of case dismissals they viewed as unwarranted. And there appeared to be an uptick in crime stories leaked to local media.
The most pernicious of those were out-of-context anecdotes regarding the handling of individual cases that, in the absence of that context, could be construed as overly lenient, if not irresponsible. Of course, none really were, but in a world where most people don’t read beyond the headline and local media are eager to exploit controversy for page views, misinformation spreads easily.
Two Arlington cases come to mind, both of which were covered by our local media (my office was not counsel of record in either, so I’m able to discuss them without violating professional ethics). In one, a man threw a dog off of a tall balcony. He was held without bail, but at his plea, the commonwealth’s attorney recommended a sentence that did not call for additional incarceration. If you’re a dog lover and that’s all you learn about the case, you might be skeptical. As it turned out, however, the person faced serious mental-health challenges, to the extent that he was likely to be found not guilty by reason of insanity at trial. The plea agreement accurately reflected his true moral culpability, while opening the door to mental health treatment.
In another case, the defendant was charged with trafficking dozens of pounds of marijuana, having carried the drugs on a flight that went through Reagan National Airport. He also struck a deal that was below the sentencing guidelines — which local media apparently believed would shock the conscience of the community. The missing context in this case? He was merely a drug mule, he had extremely compelling mitigation related to his upbringing (think “family business”), and — reading between the lines, since this was not my office’s case — it appeared highly likely that he was cooperating with law enforcement to aid in the investigation of others who were much higher up on the chain of command. Although many prosecutors are reticent to speak to the media about active cases, the latter fact about cooperating with police is one no prosecutor could ever speak to the media about, because of how it could jeopardize the person’s safety. Everyone in the courthouse knew what was going on, but none with first-hand information they could share it with the media.e
Fairfax County was home to another well-publicized example of the power of one bad anecdote, when a sitting circuit court judge publicly criticized a plea deal in a child rape case that called for “only” 17 years in prison. This was the high-end of the sentencing guidelines in the case — a fact The Washington Post did not mention until well into the body of their article covering the matter. Furthermore, as any criminal practitioner knows, plea deals are often the product of weaknesses in the case or the risks of taking a case to trial. Unless there’s a confession or damning forensic evidence, child sexual assault cases can often be a coin flip at a jury trial. Moreover, for a defendant in his 50s, any sentence much longer than 17 years would be a de facto life sentence, meaning there would be no incentive at all to plead guilty, and he would simply roll the dice at trial. Understanding those risks, it makes sense that a prosecutor would offer a lengthy sentence in exchange for a guaranteed conviction. But these nuances don’t translate for reporters.
Although progressive prosecutors want to believe these news stories don’t influence their office’s operations, it seems clear that they do. Where I practice, line prosecutors often ask to record bond motions in district court, ostensibly to memorialize their position opposing bond if something bad happens following release. In some serious cases, prosecutors won’t make specific, concrete sentencing recommendations, instead only offering a “cap” or “deferring to the court,” which where I practice is effectively an invitation to the judge to impose the maximum period of incarceration allowed under a plea agreement. Although not an explicit precept of progressive prosecution, many within the movement have asserted publicly that prison sentences should almost never be longer than 20 years. In practice, sentences of that length and longer have been regularly imposed in “progressive” jurisdictions.
Opposition to progressive prosecution was expected from the police, but the same cannot be said about the judiciary. We did not think our judges would embrace progressive prosecution, necessarily, but we did not anticipate the degree of resistance that would materialize. Just a few months into the new Arlington prosecutor’s tenure, for example, one circuit court judge held that the commonwealth’s attorney the people had just chosen lacked authority to decline prosecution of marijuana offenses on policy grounds. Never mind that the very policy grounds the prosecutor cited, such as allocation of law enforcement resources, have been upheld routinely by courts nationwide, or that polling consistently shows that Virginia voters widely support decriminalization. And never mind and the Virginia General Assembly had just voted to decriminalize simple possession of marijuana. It felt as though the judiciary was subverting the will of the local electorate.
Our circuit court judges also began requiring the prosecutors to justify, in writing, every single dismissal or plea agreement they proposed, and to do so days in advance of the hearing. Their scrutiny of plea agreements further led them to reject many plea agreements — I’d estimate they take about 40% of plea agreements “under advisement,” and then reject about half of those. To give you a sense of how unprecedented this is, my office collected and analyzed data regarding an entire pre-pandemic year’s worth of felony cases under the prior, regressive prosecutor’s leadership, and did not find a single dismissal or plea agreement the circuit court judges rejected or even took under advisement. That amounted to more than 400 felony dispositions, all rubber stamped, like they have been across the country for decades until reformers started taking office.
Am I disappointed? I wouldn’t say that; I just think the dialogue surrounding the movement is in need of balance, in the form of constructive criticism. Or perhaps a different way of thinking about why prosecutors, no matter their flavor, cannot be a sole or even primary source of reform. Public defenders need to be elevated, as does legislative advocacy, to change the laws that can under no circumstances be prosecuted humanely.
Our local chief prosecutor is in very good standing with Arlington voters, and plenty has been said both by her office and even the news media about the beneficial changes she has made. Most recently, The Washington Post covered her efforts to vacate a decades-old conviction that placed a noncitizen at risk of deportation. She deserves credit for that and many of the reforms she has implemented. Arlington has ended the felony indictment policies of the prior regime — policies that led to Arlington defendants being three times more likely to face felony punishment than similarly situated defendants in Fairfax County. Wealth-based decisions about pretrial detention have been eliminated. There is now a functioning conviction integrity unit, and a promising restorative justice program, even if it still is in its infancy. There’s also more collaboration between stakeholders on diversion programs and others intended to reduce our local jail population, most with the blessing of our sheriff. I believe we’re on the right track.
But there’s also the risk of standing on the flight deck proclaiming “mission accomplished.” This is what many voters believe: that the movement is doing everything it promised, and we can stop thinking about criminal justice reform for a while, when the reality is that some major issues have not been addressed — and may very well be beyond the reach of the progressive prosecution movement. Mass incarceration, for example, is largely driven by extreme sentences for violent conduct; it is difficult to see how any chief prosecutor will have the ability or the political will to take meaningful action on that front.
And you know which defendants get the fairest sentences? Those with top-notch defense attorneys who can make the case for innocence — or more often, do the hard work to develop mitigation and make the case for mercy. In an adversarial system, this is and will always be the role of the defense. And in a world where 80% of defendants are represented by court-appointed counsel, the defense can only meet its obligations if it has the funding and resources to attract and retain talented and committed attorneys, social workers, and investigators.
Similarly, progressive prosecutors are finding that the behavioral health infrastructure needed to take a truly decarceral approach in many instances simply does not exist. For example, Arlington County is one of the wealthiest communities in the country, with an annual budget exceeding $1 billion, and yet it lacks a long-term residential substance abuse treatment in the community. To access long-term residential drug treatment, you have to go to jail. And not just for a few weeks — the jail-based drug program requires individuals to serve at least nine months behind bars.
There is also the problem of the law itself. Where I work, only about 3% of cases are considered violent felony crimes. Over 80% of criminal incidents are misdemeanors, and the remainder are felony property or drug crimes. We shouldn’t have to rely on declination to keep unhoused people from being jailed for trespassing. Or to direct someone with substance use disorder to treatment rather than tethering them to the court’s through indefinite probation. The progress made through progressive prosecution is only as secure as the incumbent’s electoral chances, after all. Sustained progress will require, among other things, legislative advocacy to change the laws prosecutors are expected to enforce, community buy-in, and a realignment of our budget priorities.
Should we continue to support progressive prosecution? Of course. Should we be honest about its limitations, however, and acknowledge the even greater needs for legislative action and support for other essential stakeholders, like indigent defense and community health services? Absolutely. But most of all, we shouldn’t reinforce a system that, at its core, only inflicts more harm. Instead, we should hope for a world where we no longer reflexively turn to prosecutors, judges, police, and sheriffs to ensure public safety; where we promote decarceral, community-based programs that address the root causes of violence; where we invest in our schools, job opportunities, affordable housing, and access to healthy and nutritious food; and where we take meaningful steps to address systemic racism. When we do those things, we will move closer to true community safety and wellness, and the politics of our local prosecutors will become much less relevant.
Image: Derrick Brooks/Unsplash