Progressive Prosecutors Pushing ‘Social Reform’ Earn Praise and Criticism

File photo of a correctional facility. Tom Blackout/Unsplash

Across the country, a small but growing number of non-traditional district attorneys, known as progressive prosecutors, are being elected to office.

From Larry Krasner who vowed to end mass incarceration in Philadelphia, Pennsylvania, to Kim Ogg who promised to decriminalize low-level possession of marijuana in Harris County, Texas, these prosecutors have won office by seeking to implement what they claim to be a more balanced approach to criminal justice. Their policies steer away from the traditional tough-on-crime approach toward less punitive measures, while they pledge to increase police accountability.

Leaders at the Justice Department (DOJ) have accused these “social reform” prosecutors of “shirking that duty in favor of unfounded decriminalization policies they claim are necessary to fix a ‘broken’ system.”

U.S. Attorney General William Barr reprehended the movement in a speech to the Grand Lodge Fraternal Order of Police in August, saying that these district attorneys “style themselves as ‘social justice’ reformers” and “spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”

His views were echoed by his second-in-command, Jeffrey Rosen, who in a speech in November similarly reproached the trend by saying that it threatens to undo the DOJ’s progress in reducing crime across the country.

Some experts share the same frustrations over the inadequacies of the criminal justice system but, like Barr and Rosen, they have also expressed concern over whether prosecutors should lead the change while signaling caution on the trend’s potential risks.

Frustration With the Criminal Justice System

Many of these social reform prosecutors were elected on platforms where they vowed to fight the criminal justice system, with many promising fundamental reforms such as curbing enforcement on low-level drug and property offenses and changing the rules about bail. Experts and prosecutors are in agreement that the criminal justice system is not perfect and they have identified areas that are in need of repair. The greater issues in the system have resulted in high recidivism, prison overcrowding, a drain on taxpayers’ dollars, risks to public safety, and a sense of injustice in the community—and this is only a small sample of the concerns.

Prison overcrowding has been cited as one of the top hot-button issues in the case for reform. Statistics show that the U.S. jail system that includes local, state, and federal prisons holds almost 2.3 million people, which gives the United States an incarceration rate of 698 per 100,000 residents in 2018, according to the Prison Policy Initiative, a criminal justice public policy think tank.

When looking at the staggering number of people who are behind bars, progressive prosecutors have immediately pointed to overcriminalization as a significant factor responsible for sending people to prison. Many have promised to not prosecute categories of non-violent offenses such as drug possession or shoplifting because they do not agree with the policy or law.

In 1787, there were only three federal crimes stipulated by the Constitution: piracy, counterfeiting, and treason. When the first Congress passed the Crimes Act of 1790, 23 separate offenses were named. Now there are more than 4,500 federal crimes and over tens of thousands of regulations but trying to tally up the actual number of federal crimes is a task that even staff at the Library of Congress finds nearly impossible.

Some of the laws have been criticized for being “immoral” or “ridiculous” because they regulate conduct that an ordinary person might not deem criminal. Meanwhile, many of the laws do not require a mens rea—or guilty mind—component, leading to people being arrested and incarcerated for crimes that they did not know were criminal. For example, a rafting guide was arrested for helping a young stranded rafter who had fallen out of her boat. He was charged with “obstructing government operations” because police thought he was jeopardizing the rescue operation.

Another area experts say has contributed to overcrowding in prisons is mandatory minimum sentencing. Mandatory sentencing requires judges to impose minimum sentences on defendants for certain types of offenses often with little hope for early release or parole. It also takes away the power of the judge to make decisions on sentencing based on the circumstances of the individual.

Mandatory sentencing in drug crimes accounts for a large portion of inmates in prison, with 451,000 people—or 1 in 5 incarcerated people—locked up for non-violent drug offenses in local, state, and federal prisons on any given day.

The Emergence of Progressive Prosecutors

The need to seek alternatives to locking people up or to change mandatory sentencing, for example, is not greatly disputed among partisan lines—criminal justice reform is widely viewed as a bipartisan issue. Experts believe the differences in approaches to reforms adopted by progressives, such as their views on where the issues originate from and their views on how leadership is dealing with these problems, are the impetus behind this growing trend.

Matt C. Pinsker, a criminal defense attorney and an Adjunct Professor of Criminal Justice at Virginia Commonwealth University, told The Epoch Times he thinks the trend emerged because many progressive prosecutors choose not to enforce certain categories of law out of moral obligation. These prosecutors, he said, have developed the view that some laws are immoral, racist, and unjust as they impact different groups, especially minorities, disproportionately.

“There are a lot of people elected to office who if they can see a different age and social disparity, they won’t say what personal decisions people may make that cause it,” Pinsker said. “They would say what institutions are making people do that. And not only do they blame the institutions, but they‘ll also blame the system, they’ll blame the laws, not the lawbreaker. And because they are blaming the system and laws they view the laws themselves as inherently unjust, immoral, and racist.”

Pinsker, who previously served as a federal special prosecutor, state prosecutor, and a magistrate, said although he feels progressive prosecutors are well-intentioned, he believes their views promote a lack of respect for the rule of law. He added that the role of a prosecutor is to seek justice, not to get a conviction, and to achieve that they need to look at the individual circumstances of each case.

Joe Hoelscher, a criminal trial lawyer, says that leadership has left prosecutors with no choice but to trial ways to address issues with the criminal justice system.

He said change should be coming from the legislative and the executive branches but he said many prosecutors and trial defense lawyers feel that leadership is absent. This lack of leadership has frustrated local prosecutors driving them to take the wheel of reform by spearheading experimental changes with whatever resources that are available to them, he said.

“Nobody’s up for ruining somebody’s life over a small amount of drugs or throwing them in prison, when what they really need is treatment, because we know that that person is just going to come back out and be a problem again later,” Hoelscher told The Epoch Times, adding that currently, many lawyers are already using workarounds and pursuing alternatives to conviction to address some laws deemed harsh and “absurd.”

This is seen more frequently in areas where a progressive prosecutor has been elected. For example, Philadelphia District Attorney Larry Krasner is trialing a police-assisted diversion program designed to redirect low-level suspects of prostitution and drug possession to community-based services.

Hoelscher, who donated to Joe Gonzales, a progressive district attorney of Bexar County elected in November 2018, added that he also thinks other factors are contributing to the trend, such as a demographic shift where moderate urban areas are becoming more progressive, and money injections supporting the campaigns of progressive prosecutors from controversial liberal megadonors like George Soros, which makes district attorney elections more competitive.

Fourteenth Circuit Solicitor Duffie Stone, who was recently sworn in as the president of the National District Attorneys Association, argued in his inaugural remarks in August that prosecutors are by nature progressive and that prosecutors have been effecting reform to the criminal justice system for years.

Meanwhile, Marc Ruskin, a former assistant district attorney in Brooklyn, New York, and an adjunct professor at John Jay College of Criminal Justice, said he believes the trend partly originated because many professionals in district attorney’s offices or in government were students in the 1970s who were either taught, influenced, or adopted many communist-inflected ideologies and countercultural stances prevalent at the time. Ruskin is also a regular contributor to The Epoch Times.

“You have these people running for office, and they’re essentially fighting the system from within, so to speak. And so they’re dancing a progressive, leftist agenda that they were taught in college and law school,” he told The Epoch Times. “That may arguably be part of the root of the problem.”

Should Prosecutors Lead Reform?

The Justice Department does not think so. Rosen pointed out that the prosecutors’ actions risk undermining the separation of powers because they are “effectively legislating through inaction.”

Like Rosen, many experts have raised similar concerns, saying that the job of reform should be left up to the legislative and executive branches.

“The way our government is set up as a representative democracy or Republic, the role for reforming the criminal justice system is properly in the hands of the legislators, not the prosecutors,” Ruskin said.

Pinsker, who is also a constitutional scholar, shared a similar view but noted that achieving legislative changes might not be an easy task.

“There’s a lot of institutional inertia. There will be people with different views. Even if they agree that we need changes they won’t agree what these changes are,” he said. “In theory it’s simple but in practice getting anything done through political systems, especially in this country, is quite a burden.”

Hoelscher also agrees that the legislative and executive branches should be the ones to do the job, but he argued that there has been some hypocrisy coming from the federal leadership. He explained that federal leadership has been silent or even supportive of prosecutors who exercised similar discretion to support law enforcement or increase penalties for defendants.

“It’s a hypocritical argument because we had tons of conservative district attorneys who would ignore the law and impose sort of their own sentencing ranges, for example,” he said, adding that it was a concern because prosecutors who only considered certain parts of the sentencing range or frequently maximized sentences, for example, were not considering the full sentencing range “the legislature has said should be considered.”

“Nobody criticized those from the Department of Justice—Democrats or Republicans,” he said.

Prosecutorial Discretion

A common argument backing progressive prosecutors is that since traditional prosecutors have the discretion to choose to prosecute and charge, these prosecutors should also have the discretion to do the opposite.

Rosen agrees that prosecutors have prosecutorial discretion but disagrees with how progressive prosecutors are exercising it. He wrote in an op-ed in The Washington Post in November that the “categorical refusal to enforce basic laws geared toward public safety goes far beyond prosecutorial discretion.”

Pinsker said what makes progressive prosecutors’ policies so alarming is that they are blanket refusing to enforce certain laws instead of judging individuals on a case-by-case basis.

Meanwhile, Hoelscher disagrees with the viewpoint that progressive prosecutors are not exercising discretion on an individual basis. He said progressive prosecutors still have to evaluate each case individually to an extent in order to see whether there are any aggravating factors that may support prosecution.

He said, for example, if “they get that less than a quarter gram of cocaine case, which is one of the cases here that they’re not filing right now, a prosecutor has to evaluate that and still look at it and say: ‘Yeah, you know what, there’s nothing else going on here. There’s no gun. There’s no prior criminal history, you know, the drugs weren’t around children.’ And they’re saying, ‘So for our policy, we’re going to go ahead and not file the case.’”

But Rosen thinks that the decriminalization policies themselves are problematic, arguing in his op-ed that progressive prosecutors violate “the duty to enforce the laws as passed by the legislature and [fly] in the face of the fundamental concept that no one part of government exercises total control.”

Potential Risks

Rosen said the experiment run by the progressive prosecutors is not without risks, underscoring how their policies are potentially threatening public safety, demoralizing law enforcement, and disrespecting victims.

Ruskin, who also worked as an FBI agent for 27 years and is the author of “The Pretender: My Life Undercover for the FBI,” said some of the progressive prosecutor policies could lead to bad morale for law enforcement.

Police officers may be thinking “why should I be risking my life arresting these dangerous people when the prosecutors or the judges are going to turn around and let them go 24 hours later,” Ruskin said. “So in fact, not only is it a morale problem, but it’s a disincentive to doing their jobs because if it’s not going to be any benefit to society then the police officers going to be thinking that they’re wasting their time.”

He said an example of prosecutor decision’s having an effect on police morale was seen in the Jussie Smollett case. The Chicago Police Department spent weeks and copious amounts of resources investigating the case, looking at countless of footage, and constructing a timeline only for that work to be rendered useless when progressive prosecutor, Cook County State Attorney Kim Foxx, dropped all 16 counts of disorderly conduct against Smollett.

Foxx wrote in an op-ed at the time that “specific aspects of the evidence and testimony presented” made the conviction uncertain but did not elaborate further on why the charges were dropped. A special prosecutor has been appointed to find out why Foxx dropped the charges against the “Empire” actor. Smollett has continued to maintain his innocence in the case.

After Foxx’s decision, former Chicago Police Superintendent Eddie Johnson expressed frustration over the prosecutor’s decision.

“Do I think justice was served? No. Where do I think justice is? I think this city is still owed an apology,” he said. “My job as a police officer is to investigate an incident, gather evidence, gather the facts and present them to the state’s attorney. That’s what we did. I stand behind the detectives’ investigation.”

Then-Mayor Rahm Emanuel expressed similar sentiments, calling the decision a “whitewash of justice.”

“This $10,000 doesn’t even come close to what the city spent in resources to actually look over the cameras, gather all the data, gather all the information that actually brought the indictment by the grand jury on many, many multiple different charges,” Emanuel said at the time, referring to Smollett’s $10,000 bond that was forfeited.

Barr raised a similar point in an op-ed expressing support for police officers in the New York Post on Dec. 16, saying that “officers must look on as the criminals that they have risked their lives to apprehend get turned loose by ’social-justice‘ [district attorneys] and ’progressive' judges who no longer see their role as protecting the community from predators.”

“Some DAs have even exposed police officers to greater danger by announcing that they will not prosecute those who resist police,” he wrote.

Hoelscher, on the other hand, pointed out that with the current system in which police officers are required to turn up at court to help prosecute low-level crimes is actually quite demoralizing for officers. He said reducing low-level crimes actually helps keep officers out of court and allows them to go back on patrol.

“I think they’re more demoralized when they’re not treated respectfully, which happens a lot of times when they’re dragged into court and there are too many cases, so they spend a day in court [and] never get heard because the case gets reset. And this is something that happens a lot when we have highly aggressive prosecutors,” he said. “I  think pretty much any cop you talk to, if he’s got put through that wringer is going to at least see some positives to reducing the low-level crimes and being respectful of his ability to do what he really wants to do.”

Meanwhile, some district attorneys have not developed a good relationship with law enforcement, such as Krasner who has repeatedly clashed with law enforcement, and placed 29 Philadelphia police officers on the DA’s “do not call” list, The Philadelphia Inquirer reported.

William McSwain, the U.S. Attorney for the Eastern District of Pennsylvania who linked an incident in which six Philadelphia police officers were shot in August to Krasner, has criticized his actions, accusing him of creating a “culture of disrespect for law enforcement.”

“It started with chants at the DA’s victory party—chants of ‘[expletive] the police’ and ‘no good cops in a racist system,'” McSwain said in a statement. “We’ve now endured over a year-and-a-half of the worst kinds of slander against law enforcement—the DA routinely calls police and prosecutors corrupt and racist, even ‘war criminals’ that he compares to Nazis.”

The International Union of Police Associations (IUPA), a police union representing more than 100,000 officers, told The Epoch Times in a statement that they believe the trend of progressive prosecutors and their policies “lessen the safety of the communities they serve.”

“These policies make adherence to the law voluntary and the violation of these legally enacted statues without consequence,” Sam Cabral, president of IUPA, said. “We believe it leads to the complete disregard for our laws and for those charged to enforce them that we see entirely too often.”

“We strongly believe in the rule of law. We believe further that victims of crime are being further victimized by elected officials whose duty it is to represent them,” Cabral added. “Small business owners cannot absorb the cost of wanton shoplifting. Property owners should have some recourse to deal with trespassers and vandals. The opioid epidemic will not be lessened by refusing to prosecute drug crimes.”

Cabral also criticized the prosecutors’ “overzealous desire” to prosecute officers based on public outcry, calling the push “troubling.”

“The death of Freddie Gray in Baltimore resulted in a year-long episode of such prosecution, where six police officers were charged in connection with his death. One case resulted in a mistrial, two officers were acquitted, and the rest of the charges were dismissed,” he said.

Progressive prosecutors have been praised for their boldness but also slammed for their disregard for the rule of law and at times law enforcement. Some of the first wave of progressive prosecutors such as Kim Ogg and Kim Foxx are seeking reelection next year, and whether they will stay, along with the trend, will be up to voters.