Cross-Examining the Progressive Prosecutor: The Challenges of Reform from the Inside

Posters hang on a D.C. fence after a June 11th rally this year. Photo byTed Eytan.

I am sitting on the phone with Jim Hingeley, the prosecutor for Albemarle County, Virginia, as he walks me through his philosophy in office. As Commonwealth Attorney, known as a District Attorney in most other states, Hingeley occupies the role that Kamala Harris and others have dubbed “top cop.” Yet he illustrates a radically different picture of his job. 

“Roughly speaking, about 5% of the crime in Albemarle is serious, violent felonies. 95% isn’t. We need to discriminate between these,” he says, making an impassioned case for his views on crime and justice. “I think we should work hard to avoid using jail to respond to criminal behavior.”

Amid the myriad of demands for transformative change in this moment of protests and dialogue about policing, prosecutors are an often overlooked piece of the puzzle. Prosecutors, or district attorneys, set the tone for how officers police their communities as the chief law enforcement official of a district. With any given protest, a prosecutor may both choose whether to file charges against protesters and whether to hold an officer accountable for the brutality that motivated the demonstration.

Historically, many District Attorney offices have operated under a more punitive mindset. “Law and order” was a resounding, victorious campaign message, and prison was widely accepted as a corrective force and a social good. Prosecutors went under the radar while aggressively facilitating mass incarceration. 

The position also comes with an unreviewable discretionary authority: District attorneys may determine which charges are filed against a defendant, redirect them to an appropriate program, or dismiss the case altogether. This discretion, an immensely powerful tool, allowed white prosecutors to refuse to try hate crimes in the civil rights era. Prosecutors have covered police lies and routinely struck all potential Black jurors in attempts to win their cases. These intentional, often illegal practices are nearly impossible to stop. In 1976, the Supreme Court unanimously ruled that prosecutors have absolute immunity from civil liability, meaning plaintiffs may not seek justice against any individual prosecutor for actions taken during a criminal prosecution.

The ills of absolute immunity still come into play today— a recent internal investigation uncovered over 20 instances of prosecutorial misconduct in the Brooklyn District Attorney Office. The results revealed a collective 426 years in prison for the wrongfully convicted. Nearly all were low-income Black defendants.

Amid this tense history, the “progressive prosecutor” movement is working to redefine the role of state attorneys. For decades, there was a consensus that D.A. candidates must be “tough on crime” to prevail in their elections. Challengers were also rare—80% of incumbent prosecutors ran unopposed, according to a 2014 study. Only in recent years have progressive prosecutors begun to publicly reimagine how a district attorney office should function. 

As progressive prosecutors win elections across the U.S., some activists are pushing against the idea that reform can mend our criminal justice system. This growing movement for abolition envisions a future without police, and prosecutors may not necessarily fit into that vision either. 

A CASE STUDY IN PROGRESSIVE PROSECUTION

Charlottesville sits in a unique position. As a college town, it is a blue pinprick in a red part of the state. Black Lives Matter signs are scattered throughout residents’ lawns, yet three Confederate statues still sit in the heart of the city. Protests and demonstrations are a common sight, but the city is still haunted by the 2017 Unite the Right rally, in which neo-Nazis marched bearing tiki-torches and a 32 year old woman was killed and several more injured when a white supremacist drove a car into a crowd of counter-protestors. In the minds of many Americans, the word “Charlottesville” is still synonymous with that violence. 

Voters in Charlottesville are also particularly attuned to the power we place in district attorneys. In 2019, Albemarle, the county surrounding Charlottesville, voted out the Republican incumbent Robert Tracci and elected self-described “progressive prosecutor” Jim Hingeley. Tracci wrought the ire of voters that year for failing to prosecute Jason Kessler, the main organizer of the 2017 rally. Tracci cited technical grounds in his failure to convict, which Hingeley criticized as a “rookie mistake.”

The stakes were higher than his infamous blunder, though: Mr. Tracci opposed a civilian review board of police conduct, referred to Charlottesville activist groups as “disruptive,” and failed to bring charges against a group of white supremacists who threatened students with lit torches. More broadly, he operated under the approach that removing people from the community and sending them to prisons and jails was a solution to crime. 

According to a report released this year, race was the best predictor of how many charges would be associated with a single arrest for Black men during Tracci’s time in the Albemarle Commonwealth Attorney Office. The results found that the race of the accused exerted an even “greater statistical influence than both the seriousness of the violation and prior criminal history, combined.” This alarming disparity is the dark side of prosecutorial discretion. 

Jason Kessler marches in D.C. a year after avoiding criminal charges for his role in the deadly Charlottesville rally. Photo by Kashifv.

THE VICTORIES AND VICTIMS OF PROGRESSIVE PROSECUTORS

“A lot of people think that crime prosecution is pretty automatic,” Commonwealth Attorney Hingeley told me in his July phone interview. “That’s a completely erroneous conception of what a prosecutor does and what a prosecutor should do.” 

Their positions are often pointed to as a source of mercy and leniency in a historically unforgiving system. Cook County State’s Attorney Kim Foxx, one of the country’s most prominent progressive prosecutors, recently stated “[prosecutorial discretion] is even more powerful when you choose to not charge.” 

DAs may be the most important elected individuals when it comes to immediate, tangible change in the criminal justice system. While policymakers are hindered by a system that is designed to move slowly, elected prosecutors can swiftly change individuals’ lives. Prosecutors can reduce felony charges to misdemeanors, decide whether to pursue incarceration or probation, or may choose to avoid convicting entirely and ask the defendant to complete a program instead— all options embraced by self-titled progressive prosecutors. Hingeley employs his prosecutorial discretion frequently, describing prison as a “last resort, not a first response.”

Few individuals work as closely with police officers as prosecutors, giving them a unique advantage when it comes to pushing for accountability. The incredible amount of discretion they posess plays a role here, too: if the prosecutor observes a pattern of racial profiling from law enforcement, they are under no obligation to prosecute the case. Moreover, prosecutors have a responsibility to report any dishonesty to the defense council in cases of alleged misconduct, which can be used as exculpatory evidence in prosecuting an officer. 

“Ultimately,” Hingeley noted, “with an observed pattern of dishonesty, an officer will be terminated.” 

Too often, though, this isn't the case. The close working relationship between police officers and district attorneys may actually impede progressive work. In July, three New York district attorneys said they would likely not prosecute all officers who violated a recently passed chokehold ban. City Council member Rory Lancman, who first introduced the anti-chokehold legislation after Eric Garner’s death in 2014, criticized the Democratic prosecutors, arguing that law enforcement has “resisted even the most basic, modest reform” for years. Even in the offices of left-leaning district attorneys, the all-important tool of prosecutorial discretion can squarely benefit officers. 

Prosecutor-officer biases can become rooted far before a prosecutor takes office. Police unions frequently donate large sums to both Republican and Democratic campaigns for district attorney. This practice is more than a bad look for more progressive candidates— in many cases, the union funding an accused officer’s defense team has also funded the campaign of the prosecutor for the same case. These police unions are arguably the most influential unions in the country. Their collective power— and hold on some prosecutors’ offices— make officers notoriously difficult to terminate. While dishonesty is relatively common and has rarely guaranteed an officer’s dismissal, police lying raises the likelihood that innocent people will be incarcerated. 

District attorneys’ closest coworkers are the police, complicating the shift from “chief law enforcement officer” to “progressive prosecutor.” Cop culture, or the “Blue Wall of Silence,” works to foster a dangerous complicity that may extend beyond police badges and handcuffs. Prosecutors must work with officers and agents to build a case, acting as gatekeepers for investigative techniques such as search warrants, electronic surveillance, and grand juries. The line between “reviewer” and “partner” is easily blurred during these investigations. Some prosecutors may even include officers in the legal process by soliciting their advice on plea deals or sentencing. 

There is a growing rift between those calling for basic reform and those calling for defunding as a means of abolishing the police and prison industrial complex. Activists on both sides of this spectrum now face a crucial question: are progressive prosecutors crucial allies, or just as culpable as every actor in the system?

Defund Charlottesville Police, a local police and prison abolitionist group pushing for the reallocation of more than 10 million in police funding, has challenged the very idea of progressive prosecution. Instead, they advocate for a police-free community where the criminal justice system itself has been abolished and replaced. 

In a statement for CPR, organizers likened progressive prosecution to fancy gift wrap on a damaged cardboard box: “Regardless of how impressive the wrapping of paper is, the box is still damaged— much like the system. You can’t be enmeshed in the system without perpetuating it.” The organizers also question any use of incarceration, even sparingly. “Prisons and/or jails are not institutions that can be reformed…we need to develop alternatives outside of the system.” 

PROGRESSIVE PROSECUTION NATIONWIDE

Activists are holding new D.A. offices accountable across the U.S. and putting pressure on the narratives created during their campaigns. District attorneys can cause undeniable harm to their constituents— even when the word “progressive” is in front of their title. 

In Philadelphia, an attempt at progressive reform kept hundreds of legally-innocent people awaiting trial in jail during the peak of a pandemic. District Attorney Larry Krasner entered office in 2018 with a promise to end both the use of cash bail and mass incarceration. After two years without any major change to the cash bail system, he announced that his office would only be seeking one of two bail requests: release without any payment or $999,999. 

“D.A. Krasner’s new policy attempts to skirt the law by seeking million-dollar bails as de facto detention orders.” The Philadelphia Bail Fund wrote in a report, “Of the 237 cases we reviewed in which the [District Attorney Office] requested cash bail in the amount of $999,999, over 90% of those subject to such a request were assigned public counsel because they could not afford an attorney.” An overwhelming majority of those individuals— approximately 80%— were Black. 

Philadelphia District Attorney Larry Krasner. Photo by Jared Piper.

Krasner’s attempt to move away from cash bail only magnified existing inequities. It was also more than a break of promises; his failure reflected the reality of transforming a system that cannot help but penalize poverty. 

Progressive prosecutors are taking on the difficult task of both fighting an oppressive system whilst being a part of it. But policies like Krasner’s only work to incarcerate people in inhumane conditions— even prosecutorial discretion cannot change a preexisting set of laws that criminalize survival crimes and were written to incarcerate Black communities. 

The situation in Philadelphia begs a larger question: is change from the “inside” an effective answer? Vice Presidential nominee and former California Attorney General Kamala Harris argues that it may be the only one. But many activists, particularly abolitionists, are pushing back on the idea of inside reform. 

“It’s obvious that the system won’t disappear overnight, no abolitionist thinks that will be the case.” Prominent abolitionist Ruth Wilson Gilmore said in a New York Times interview, “So many of these proposed remedies don’t end up diminishing the system. They regard the system as something that can be fixed by removing and replacing a few elements.” Gilmore and many others ultimately argue that progressive reform simply opts for lesser cruelties. In framing police and incarceration as redeemable, some policies actually reinforce the larger system. 

This new type of prosecutor runs on a platform of ending mass incarceration in a country that holds 20% of the world’s prison population. They face a simple math problem: reducing the incredible amount of prisoners is an insurmountable task for individual progressive D.A. offices scattered across the country. Moreover, progressive prosecutors’ policies are selective in which criminal defendants benefit, opting to only forgive crimes the public may be easily sympathetic towards. Ruth Wilson Gilmore sees a clear issue with this: “to genuinely end mass incarceration in America, we have to transform how the justice system responds to all offenses.”

There is no question that prosecutors make some of the most consequential decisions for both police reform and the larger criminal justice system. District attorneys moving away from a punitive, carceral mindset may seem like a small victory for activists amidst growing calls for change. Still, they have largely escaped criticism for both their complicity and significant roles in promoting unjust incarceration. Despite the challenges of their office, prosecutors, even progressive ones, cannot be overlooked when it comes to accountability. 

Chloe Lowell is a senior editor with CPR and a sophomore in Columbia College studying Political Science and Human Rights. She is immensely grateful for every elected official and activist who took the time to speak with her while she was researching for this article.