Excerpted From: Cynthia Godsoe, The Place of the Prosecutor in Abolitionist Praxis, 69 UCLA Law Review 164 (March, 2022) (341 Footnotes) (Full Document)


CynthiaGodsoeIt is now widely accepted that mass incarceration must be rolled back and that the criminal legal system operates to subjugate communities already marginalized by race and class. Also widely agreed upon is the fact that prosecutors have played a significant role in the building of the modern carceral state. The recent elections of self-described “progressive prosecutors” have been greeted with great enthusiasm, even hailed as a possible solution. It has also generated a good deal of legal scholarship, most of it focused on the exciting possibilities of prosecutorial reform. This optimism is understandable in our world of legislative “pathological politics” and largely powerless courts, and it is borne out in these prosecutors' platforms for change on three axes: procedural, substantive, and in relationship to their constituencies. District Attorneys (DAs) such as Larry Krasner in Philadelphia, Rachael Rollins in Boston, Parisa Taft in suburban Virginia, and others, have, among other things, implemented bail reform; categorically declined to prosecute lower-level offenses, such as shoplifting, drug possession, and trespassing; and issued unprecedented data on racial disproportionality in the criminal system. Not just their policies but also their demographics look very different from the vast majority of DAs who are white male career prosecutors. In November 2020, a reformer, George Gascon, was elected DA in the country's largest prosecutor office, Los Angeles, while one of the most fast-moving progressive prosecutors, Kim Foxx of Chicago, was reelected. These prosecutors, however, also face rabid opposition, including intervention from other politicians, lawsuits from their own employees, and even recall votes. As the movement is growing and some of this first wave of progressive prosecutors has been reelected, it is a particularly important time to assess their impact, potential, and limits.

At the same time, the murder of George Floyd and long-overdue recognition of state violence against people of color are bringing--for the first time-- widespread traction to imagining alternatives to the criminal system. Abolitionist visionary Angela Y. Davis explained that she has never seen an opportunity like this, “an extraordinary moment ... that rapidly shifts popular consciousness and suddenly allows us to move in the direction of radical change.” Scholars are interrogating the role of police. Some are even concluding that the structural racism and violence endemic to law enforcement make reforms impossible; instead, dismantling and transformation are needed. These calls to defund and reimagine, however, seem to skip over progressive prosecutors who pledge to reform and “fix” the system. What makes prosecutors different?

I argue here that they are not different. In making this argument, I build on the ideas of community movements who recognize that even this new type of prosecutor remains an arm of law enforcement, contributing to the carceral state. Structural racism, the criminalization of poverty, the system's ineffectiveness at preventing injuries, and the immense harms it brings to the accused and their families and communities are systemic features, not bugs. Prosecutors are antithetical to abolition because they maintain systems of harm, enact state violence, and retain the power to break up families and communities; accordingly, true transformation of the system includes the abolition of prosecutors along with policing and other forms of state surveillance and punishment. In short, progressive prosecutors are only the solution if they work themselves out of a job.

In this Article, I analyze prosecutors through an abolitionist lens, which allows for a comprehension of the criminal system's history as rooted in slavery and other forms of racialized social control. In her seminal article Abolition Constitutionalism, Dorothy Roberts describes abolitionism as both “destructive and ... creative,” dismantling harmful, racist systems and rebuilding safer and more equal ones. An abolitionist lens also allows for the assessment of all reforms against the horizon of dismantling the carceral state, revealing that true change is impossible without a reimagining of how we prevent and redress interpersonal and societal harms. As Mariame Kaba explains in the context of policing, “the only way that we will address oppressive policing is to abolish the police. Therefore all of the 'reforms' that focus on strengthening the police or 'morphing’ policing into something more invisible but still as deadly should be opposed.” Similarly to Kaba's concerns about police reforms, progressive prosecutors may “smooth out the wheels of injustice” and render less visible the institution's inherent brute force, thus prolonging its existence. Nonetheless, abolitionist organizers also recognize that this is a “long-term project” that will sometimes entail working with and through state actors, albeit always keeping an eye on the end goal. Accordingly, while a number of Black Lives Matter activists have acknowledged that “[n]o people have ever voted their way to freedom or to liberation,” they have also very effectively mobilized in recent elections, for instance, to vote out the punitive Los Angeles DA. As organizer Joseph Williams explained, “we also know that during this time, we have the opportunity to do the most concrete thing in our power to make sure that Jackie Lacey is not still our district attorney ....”

Through this abolitionist lens, I consider two key questions that scholars, while theorizing numerous aspects of progressive prosecution, have largely left unanswered: (1) Should the system be changed from within? and (2) Can the system be changed from within? In short, can reformers prosecute, and can prosecutors transform? These questions raise issues about prosecutor and defense attorney ethics and roles, and surface the complicity of lawyers in the broader political economy of the criminal system. I answer the first question, whether reformers should prosecute, with a cautiously optimistic yes. Historically, prosecutors have almost exclusively interpreted justice as maximizing convictions and punishment. Recently, some scholars, and these prosecutors themselves, have countered that justice can be repurposed to mean ending racial disparities and reducing mass incarceration. I agree. The exercise of discretion is not new--just its direction. Boston DA Rachael Rollins thus had good reason to point out the hypocrisy of those who challenge a more lenient use of prosecutorial discretion: “None of you cared about prosecutorial discretion as this train was flying 100 miles an hour towards mass incarceration.”

As to whether prosecutors can fix the system from within, I conclude that they cannot--not as they are currently operating. The problem is both literal--the numbers are such that meaningful decarceration cannot occur without including serious crimes--and conceptual. The racial hierarchy and dominant narrative of punishment are so central to the American national identity that system actors cannot imagine a different way to address harm. Despite their many positive changes and some rhetoric around “transforming” the system, none of these progressive prosecutors are actually ceding power and funding; indeed, many seek ever more resources and influence over their communities. They do not discuss reducing the footprint of prosecutors or, usually, the criminal system more broadly. Much of their platforms' content, such as wrongful conviction review and discovery reforms, simply raise the practice up to a floor it should already be at or fix egregious errors of their predecessors. Other changes, like expanding diversion programs, are “reformist reforms” that can further entrench or expand the system rather than “unravel[ing] the net of social control through criminalization.” Even those changes that are transformative, like eliminating cash bail or categorical declinations, are vulnerable because they are based on discretion alone and could be summarily reversed by a new prosecutor.

Three challenges in particular impede prosecutors from being truly transformational, despite their best intentions: (1) exceptionalism, (2) net-widening, and (3) the “hero” syndrome that often characterizes prosecutors (and maybe lawyers more broadly). This last is perhaps the most “sticky.” The very persistent--literally think of any episode of the Law & Order franchise--cultural narrative of the prosecutor as “good guy” or “hero” impedes reflection about their role in the system and obscures what most prosecutors actually do--the vast majority of their cases are not homicides or even assaults, but rather low-level drug and property offenses. Most problematically, this narrative distracts from systemic change efforts, analogous to how the focus on a few “bad apple” police officers obscures structural problems. I do not mean to suggest that traditional prosecutors are better or to demean the importance of these changes for the people living in these communities; the impact of progressive prosecutors' reforms is real and significant. Rather, I want to point out that well-intentioned reforms often bring unintended long-term consequences, as could the focus on building up prosecutorial power as the only solution to the excessive punishment and structural racism of the criminal system. Progressive prosecutors are useful as a half measure, but truly changing the system requires a great deal more.

What would further movement toward an abolitionist horizon look like? I develop that argument throughout the four parts of this Article. I begin in Part I by mapping the political economy of progressive prosecution, including prosecutors' outsized role in building the carceral state, the progressive movement's stated goals, and the backlash against them, and I finish with a brief consideration of statist and non-statist paths to reform. In Part II, I turn to the question of whether reformers can prosecute. Considering separation of powers issues, legal ethics, and the day-to-day work of prosecutors, I cautiously answer yes. As to the second, more difficult, question, whether prosecutors can truly create change, I answer no--or at least not unless they dramatically downsize and cede their epistemic and material power.

In Parts III and IV, I argue that truly transformative change requires prosecutors to cede expertise and power to communities, as well as divest from prosecutorial and other law enforcement funding while supporting investment in truly independent community supports. This entails not just listening to a variety of voices but also giving up decisionmaking power and control. Addressing harms outside of or far removed from the criminal system in restorative and transformative justice programs is another way to empower communities, particularly communities of color harshly impacted by the criminal system; to better serve many victims; and to diminish prosecutorial power. Progressive prosecutors are not doing this; indeed, none have decreased their budgets, and many have asked for more resources rather than redirecting investments in their offices to other social supports, such as housing and mental health treatment. Reallocating resources to support communities not only effectively addresses the root causes of most crime but also “challeng[es] the belief that caging and controlling people makes us safe .... [B]asic necessities such as food, shelter, and freedom are what really make our communities secure.”

I conclude by suggesting the limits of lawyers. As much as lawyers are loath to admit it, we are not the solution to the excesses of the carceral state. The profession is, almost by definition, focused on tradition and history, resistant to change, and cautiously incremental when change does occur. And while legal scholars and reformers view police and prisons as carceral institutions, we avoid recognizing lawyers and courts as such. Part of this is reluctance by lawyers to give up status and power, a reluctance that legal scholars share. Scholars also should expand limited definitions of expertise and learn from movement actors who are shaping law on the ground. Most importantly, true change necessitates recognizing that transformation must come from the ground up, and honoring communities' exhortations for elites to “get out of the way.” The Movement for Black Lives tells us this is essential so that “those most impacted [can] ... control the laws, the institutions, and policies that are meant to serve [the people].” From this people's perspective, progressive prosecutors are at best a harm reduction stop on the way to the final goal--“not co-strugglers, but targets we can push on the path to eliminating prosecution altogether.”

[. . .]

In returning to the question I asked at the opening of this Article, whether progressive prosecutors, as opposed to courts and legislatures, are the best hope for change, I need to add one more locus of change--the people themselves. Progressive action is not enough to meaningfully change the criminal system. Instead, only radical action can work, and lawyers are not by professional culture, or perhaps nature, radical. Indeed, their ethical rules and training may make them incapable of being so. As a result, social change mostly comes from beyond the narrow confines of the legal system--including individual cases, appeals, and impact litigation--and from community self-defense, organizing, and protest. This is a reckoning for lawyers: It goes against our professional culture to cede expertise, to listen rather than talk, to follow rather than direct. This is true of legal scholars, too. As Mari Matsuda has pointed out, scholars “should listen” to the voices of marginalized people, and “build coalitions with others,” since we “will never be [at] the center of any successful [change] movement.” All lawyers and scholars, not just prosecutors, should allow the true change agents, those in the system and those touched by it, to exercise their autonomy from the bottom up.

This does not mean there is no role for lawyers in transforming the carceral state. We are part of the solution--but only a supporting role, not the lead. Defenders and prosecutors both “are part of the pathway to the future we seek to create. They are the start of how we reposition community, but they are not of themselves the ultimate goal.” So, while communities will organize to help elect prosecutors like Gascon in Los Angeles, they will never forget that all prosecutors “remain part of an unjust system” and that it is not lawyers who will dismantle that system and rebuild a better world. Rather, they themselves must keep striving toward the horizon of a truly free and equal state.

Professor of Law, Brooklyn Law School.