Volume 60

Progressive Prosecutors or Zealous Defenders, From Coast-to-Coast

by Brooks Holland and Steven Zeidman

This Article challenges the narrative that the progressive prosecutor movement can meaningfully transform the criminal legal system and argues that the myopic focus on prosecutors as the solution to all that ails this system further diminishes the critical, and chronically under-resourced, role of the public defender.

In presenting this claim, we do not question the sincerity of many self-styled progressive prosecutors’ desires to make a difference in the criminal legal system or whether these prosecutors have in fact modified norms and practices positively in some jurisdictions. But in our view, the record reveals mostly modest changes and substantial, multidirectional resistance to anything more. And this record should not be a surprise, as prosecutors are executive branch officers with a job description primarily of charging and punishing crime in an adversarial system. The progressive prosecutor movement nevertheless has become another way for prosecutor offices to expand their mission, deepen their resources, and accrue power to do justice.

We emphasize a different path to meaningful change: well-resourced, highly functioning public defense systems. We do not claim that public defenders are a panacea or a comparable solution to abolition. But we explore how a greater commitment to public defense more meaningfully can change the lives of people and communities impacted by our criminal legal system by empowering the professionals with the role and training, the professional incentives, and the institutional values to pursue material and sustainable change. In our view, truly progressive prosecutors would cede more resources and power to the defense rather than expand the mission and power of prosecutors.

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