The public’s growing familiarity and frustration with America’s criminal legal system has brought a new type of prosecutor to power. These so-called progressive prosecutors promise to end mass incarceration and bring fairness to the criminal legal system—by doing things such as declining to prosecute certain low-level offenses, expanding diversion programs, and replacing hard-line assistants with reform-minded outsiders. Liberal activists and politicians, and even a Supreme Court justice, have endorsed this movement as the key to criminal legal reform.
But progressive prosecutors’ approach won’t bring about meaningful change. The progressive-prosecutor movement acknowledges (as research has shown) that prosecutors’ “breathtaking” power is a major source of America’s criminal-justice problems. It asks its adherents to use that power for good, and trusts them to do so. But true reform won’t come from using that power for good; instead, prosecutors will need to have less of it in the first place. It is unrealistic to expect that even reform-minded prosecutors (or anyone, for that matter) can and will dispense justice when they have virtually boundless power and almost unlimited discretion to use it against criminal defendants. To transform the criminal legal system, prosecutors must stop resisting—and indeed start supporting—efforts by courts and legislatures to reduce their power.
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