As Gascón’s challenges reveal, change is hard—especially when it comes to our criminal justice system. In the last few years, there has been a push toward “progressive prosecution” in California and throughout the United States. While there is no single definition of progressive prosecution, it represents a move beyond the traditional adversarial model—in which prosecutors seek to convict and have the courts impose the most severe punishments—to a more collaborative model addressing the underlying reasons for crime and acknowledging alternatives to mass incarceration.
What is most impressive about Miriam Aroni Krinsky’s Change from Within: Reimagining the 21st-Century Prosecutor (2022) is that it tells the story of the people who have taken up the mantle of making these changes. Many of them have suffered the consequences—most typically, short-lived tenures as prosecutors. But they have stepped up to try to follow a new vision. And, like many moments in history, understanding their efforts and motivations is a lesson that outlasts their tenure. Change is hard, and there are many obstacles along the way. But, as the Reverend Martin Luther King Jr. so famously said, “the arc of the moral universe is long but it bends toward justice.”
To understand progressive prosecution, one must understand the people who have made it their cause. Krinsky, a former federal prosecutor and the executive director of Fair and Just Prosecution, begins her book with Chesa Boudin, elected district attorney for the city and county of San Francisco in 2019. He was a Rhodes Scholar and graduated from Yale Law School. He is also the son of parents who spent most of his life behind bars for their role in a deadly armored car robbery as members of the Weather Underground. Boudin’s story is unique—but so is the way by which Krinsky introduces him and his fellow prosecutors. Krinsky begins by seeing these prosecutors—really seeing them in moving and spectacular portraits painted by a team of formerly incarcerated artists. Looking at Boudin’s portrait, one not only sees the prosecutor but also the people who have been most affected by our criminal justice system—the formerly incarcerated. One sees all the talents and contributions these citizens could have made had they not been sitting in jail waiting for their lives to pass. Krinsky’s chapter on Boudin is aptly titled: her goal is to present “The Human Faces of Our Systemic Failures.”
Books about the justice system often focus first and foremost on the law or legal proceedings. But the better way to see what progressive prosecution is all about is to focus on the people. Hearing the stories of people’s lives, one will eventually learn about the discrimination against poor people and people of color by our bail system that detains far more people than need to be held behind bars while still legally presumed to be innocent. However, identifying the problem is only the start. This book pushes us to understand why it is so difficult to change the culture of offices that have the power to make needed reforms.
Here are some of the challenges. First, prosecutors generally want to do the right thing, but the right thing has always been defined as doing whatever needs to be done to keep the community “safe.” That construct involves relying on police to use their traditional tools—arrest, prosecution, detention—to protect society. It is a relatively new development to think of other approaches that might keep society safe, and there is some risk in those approaches. Giving lower sentences runs the risk that a defendant will reoffend; granting bail takes the risk that someone who has just been arrested will abide by the law until their case is decided.
Another challenge is illustrated by the work of Satana Deberry, the district attorney of Durham County, North Carolina. She moved from being a criminal defense lawyer to the chief prosecutor of her county. She had grown up Black in the South before attending Princeton University and Duke University School of Law. Yet, for as much as she embraced new opportunity, the people of her community were not necessarily ready for someone or something new. This included Black victims. How were they to believe that new approaches would leave them less vulnerable? She had to prove to them that her new approaches would help them as well. To do so, she would have to prove that being different is the secret to being better, even though the traditional approach to our criminal justice system would make such individuals outsiders. Black, queer, poor—they must be respected and embraced as much as the criminal justice system promoted white, male, and rich as the standard bearers for justice.
Yet another challenge for progressive prosecution is seeing beyond the criminal case. As Parisa Dehghani-Tafti—commonwealth’s attorney for Arlington County and the city of Falls Church, Virginia—put it, progressive prosecutors deal with “the System’s Wreckage.” And one needs to do that by mending fences with political opponents, including police chiefs and others who had argued that a new progressive prosecutor would ruin everyone’s lives. To be a progressive prosecutor, one needs to work with all those within the system, including police, to move from punishment to repair. That is not easy and cannot happen in one conversation. It is a daily practice of listening, understanding, and speaking openly with others in power.
Many progressive prosecutors seek shortcuts to the hard process of reform. For a while, the creation of conviction integrity units was seen as proof that there would be real change. In some offices, that proved to be the case, such as in the Wyandotte County, Kansas, district attorney office led by Mark A. Dupree Sr. It was a sign that district attorneys are ministers of justice. But the creation of such units is not a panacea for all prosecution offices. Large counties may have such units, but they may not result in the release of defendants unless DNA proves they didn’t commit the crime. In other words, conviction integrity units, like the prosecutors who create them, are only as good as those who lead them.
One of the most notable progressive prosecutors in the book is Kim Foxx, the state’s attorney for Cook County, Illinois. Antonio Howard’s portrait of her says it all. In it, Foxx holds a brick and builds on a vision she has had all her life—creating a new foundation for justice—with a quote in the background: “A Nation Can Rise No Higher Than Its Women.” It is a powerful portrait, as is the chapter on how Foxx went from being a “Project Kid” to a major force in the criminal justice system. What is most powerful about it is how honest Foxx is about the challenges she faced from those who would ally with law enforcement to portray her as anti-police. She is not anti-police; she is pro-people, all people. She is a social justice warrior who can take criticism and use it to fuel her future work. The book portrays her well, but if there is any criticism of what this book tries to do, it is that it underplays how powerful people like Foxx are in person. She appears regularly at conferences, and she pulls no punches. She is an effective orator who speaks from the soul. In that way, she does not allow others to redefine her message. When she autographs the chapter in Change from Within that tells her story, she makes sure to include “Thank you for your service,” thereby ensuring that others feel connected to her mission by acknowledging their contributions to reform.
Change from Within covers many progressive prosecutors across the nation—including Sarah George, the state’s attorney for Chittenden County, Vermont, and Eric Gonzalez, district attorney for Brooklyn, New York. Each has their own challenges. Brooklyn is not Vermont; progressive prosecution in Vermont focuses on the treatment of drug cases; progressive prosecution in New York involves handling immigration issues and the charging of noncitizens who are arrested for offenses that might mean their automatic deportation. How does one make community members partners when the community may not trust the institutions that exist to serve them?
Finally, no book on progressive prosecution would be complete without pioneers like Larry Krasner, district attorney for the city and county of Philadelphia, and Marilyn Mosby, state’s attorney for the city of Baltimore. Neither one had a smooth trajectory for implementing change; they were attacked and challenged at every turn. And some of these prosecutors have become targets of the criminal justice system themselves: Mosby is scheduled to stand trial in November on fraud charges, and Rachael Rollins is currently facing allegations of corruption that have forced her recent departure from the US Attorney’s Office in Massachusetts—crimes that include allegedly leaking sensitive information for political reasons and lying under oath.
Becoming a progressive prosecutor is not for the faint of heart. No mistakes will be forgiven. You often stand alone. And no matter how sincere you might be, you will have detractors. Yet, if one can at least convince enough prosecutors in his or her office of the righteousness of the cause, some change is possible.
Not every progressive prosecutor is discussed in this book. In fact, Los Angeles County District Attorney George Gascón is noticeably absent. Much has been written criticizing him, and he has been the target of two recall efforts. Nevertheless, if there is a moral to the stories in this book, it is that justice reform isn’t about just him or any one individual leader; it is about moving the hearts and souls of others in the criminal justice system, which requires skill, communication, transparency, and good will. As books are written about progressive prosecutors, an honest assessment must be made of what mistakes have been made in the movement. Has there been enough critical assessment of what has been accomplished? Has the movement tried to separate itself from politics, or has it fallen victim to it? How much do individual personalities affect the success or failure of reforms?
Indeed, as one reads this book, it is interesting to contemplate what the portrait of other progressive prosecutors will look like. From the stories told thus far, there must be personal conviction. But success also requires leadership skills that will inspire those within and outside of prosecution offices to support reforms.
Change is hard, and the adversarial system makes it particularly difficult to take a collaborative approach. Yet, it seems to be the only viable avenue to lasting reform. In all honesty, progressive prosecution today is still more of an ideal than a reality. It will likely take at least another decade before the success of the movement can be assessed. Meanwhile, our best hope is that those in a position to make change can effectively convince others to trust and follow them. The criminal justice system is not a “system.” It is a collection of people who are imagining and reimagining how we can deal with one of the toughest challenges we face in our society: keeping people safe while treating people—all people, regardless of their race, gender, immigration status, economic level—fairly. That is a chapter still waiting to be written.
Laurie L. Levenson is a professor of law at Loyola Law School and was a federal prosecutor from 1981 to 1989 in the US Attorney’s Office for the Central District of California.