How progressive prosecutors can transform the criminal justice system

The district attorney primary race in Queens, New York, went down to the wire last month, pitting a more typical candidate, Melinda Katz, against Tiffany Cabán — a public defender who campaigned on decarceration and other reform policies, like ending cash bail and decriminalizing sex work, drugs, and other crimes of poverty. This nail-biter is the latest proof that people around the country are starting to understand the important role prosecutors have played in causing mass incarceration and racial injustice and the power they possess to start fixing those harms.

Cabán’s strong showing (the election is in the midst of a recount ) proves just how far and how fast the movement has come. Cabán’s run builds off of a number of self-proclaimed “progressive prosecutors” who have swept into office — among them Kim Foxx in Chicago, Wesley Bell in St. Louis, Rachael Rollins in Boston, and Larry Krasner in Philadelphia.

But the policy differences among these prosecutors is often vast. The three dozen or so prosecutors who now claim the “progressive prosecutor” mantle are often bound by little more than a commitment to do slightly better than severely punitive and ineffective predecessors.

As the reform movement gains traction, it can be hard to decipher which candidates are actually walking the walk — taking steps to meaningfully drive down incarceration and tackle racism in the criminal legal system — and which are merely talking the talk with new words to describe the same old behavior.

With that in mind, there are four commitments from prosecutor candidates the ACLU will be encouraging voters to look for in the 2020 elections.

First, the willingness to set a specific decarceration goal — and the ability to design and implement a comprehensive plan to safely achieve that goal — is a baseline commitment that every voter should be looking for in their next elected prosecutor. For example, in Dallas, District Attorney John Creuzot pledged to slash incarceration 15-20 percent by the end of his first term. Prosecutor candidates have made similar commitments in California, Pennsylvania, and Virginia.

We have seen from past elections that only committing to a vague policy change — “bail reform,” for example — is insufficient. Complexity around implementing such changes allows prosecutors far too much wiggle room to make hollow promises, and makes it hard for voters to hold them accountable. Specific decarceration goals are more effective.

Second, progressive prosecutors must pledge radical transparency. Prosecutors’ unparalleled lack of transparency is no accident — it hides gross racial injustice and masks the role prosecutors have in driving mass incarceration. It shields prosecutors from being evaluated by whether they have accomplished anything to improve long-term community health, and instead allows them to skate by simply touting meaningless conviction rates.

The unfortunate result is that communities have no reason to trust anything prosecutors say, and for good reason, after years and decades of prosecutors decimating neighborhoods of color with no measurable benefits for public safety. Truly progressive prosecutors are taking new approaches, like State Attorney Kim Foxx in Chicago and District Attorney George Gascón in San Francisco, who have both made substantial moves to open up the books, radically transforming the office, top to bottom. Their acts here can and should be replicated. After all, this is public, taxpayer-funded information.

Third, prosecutors truly committed to ending mass incarceration must be a vocal force for legislation. We are engaged in legislative battles aimed at decarceration in nearly every state in the country, where local prosecutors and their associations are almost always our biggest hurdle to even modest reforms. Time and time again, the ACLU has seen local prosecutors pay lip service to supporting reform with local voters, all the while working behind the scenes individually or with prosecutor associations to lobby for more punitive laws and to stymie reform efforts.

2020 should be remembered as the year that voters start holding prosecutors accountable at the ballot box, not only for what they do within their offices but also for what they do at state and local legislatures. Candidates should be visible champions of legislative change. Meanwhile, state DA associations should be recognized for what they are: special interest groups that peddle regressive and punitive laws that are aligned with their outdated tough-on-crime philosophy but are vastly out-of-step with the needs of communities and the desires of voters.

Fourth, voters should be looking for prosecutors who see their primary role as safely downsizing a bloated and ineffective criminal legal system. In the debate about whether “progressive prosecutor” is fundamentally an oxymoron, our experience suggests that — at least in the near term — there is indeed a legitimate role for a progressive prosecutor who is not a benevolent dictator, but rather someone who has a clear vision and steady hand for transferring power and resources away from the prosecutor’s office and into community investments like mental health, addiction treatment, wrap-around housing, and schools.

Prosecutors have a critical role to play in the state and municipal budget process by publicly presenting the evidence that such investments would truly improve public safety far better than severe punishment and mass incarceration. And while prosecutors cannot single-handedly dismantle a racist legal system, they are uniquely positioned to name and address the system’s structural biases and harms.

A new generation of candidates is poised to run for their county’s top prosecutor jobs in the next few years, including some who are challenging incumbents who were previously branded as “reformers.” The Queens DA race is a timely reminder that now is a good time to set a new, higher bar for what constitutes real leadership and reform from elected prosecutors — if we ever hope to end our national nightmare of mass incarceration.

Taylor Pendergrass is senior campaign strategist and Janos Marton is state campaigns manager for the ACLU Campaign for Smart Justice.