Public defenders represent the indigent accused. Traditionally, they’ve seen themselves as freedom fighters, keeping people out of prison, not prospective prosecutors. Yet all over the US, lawyers are rising from the defense bar to lead the offense, ostensibly to transform a broken system from within.
The US incarcerates millions, disproportionately targeting minorities and the poor. It has only 5% of the world’s population but holds nearly 25% of all prisoners worldwide. This new and often celebrated crop of “progressive prosecutors” wants to change that.
But some in the legal community say the issue is more complex. They view the concept of progressive prosecution as problematic and paradoxical. Critics are concerned that the progressives’ proposed reforms aren’t actually radical enough and that the kinder, gentler, more conscious prosecutors are legitimizing a rotten system that actually needs revolutionary transformation.
Among this new group is Tiffany Cabán, a Queens public defender who on June 25 claimed victory in the local Democratic primary race for district attorney. She appears to have defeated the incumbent, Queens borough president Melinda Katz by 1,100 votes, though Katz has demanded a recount.
Becoming district attorney for Queens—a diverse New York City county larger than 15 states and the District of Columbia—would be a big deal, especially for someone intent on change.
Cabán, 31, is queer, of Puerto Rican descent, and born and raised in Queens. Until recently, she hadn’t considered becoming a prosecutor, but has succeeded in her bid so far with the help of endorsements from Bronx congressional representative and political superstar Alexandria Ocasio-Cortez, Democratic presidential candidates Elizabeth Warren and Bernie Sanders, and the New York Times. She has street cred, influencer approval, a “rebel campaign,” and good timing, riding on a wave of enthusiasm for “progressive prosecutors.”
Cabán says she will make Queens a worldwide model for criminal justice reform, ending mass incarceration through fewer prosecutions, abolition of cash bail, shorter sentences, and more opportunities for parole. Notably, she also wants to ensure racial justice, ending disproportionate prosecution and punishment of minorities and changing the role of prosecutors in the community, making them more accountable public servants by fostering communication and holding regular town halls. “District Attorney Cabán’s office will know and listen to the people it serves,” she writes on her website.
This reform platform, which might have sounded radical just a few years ago (and is merely “corrective” in the eyes of some defenders), is an increasingly common position for prosecutors. Cabán’s emergence is part of a larger trend around the US toward electing progressives with defense chops, all calling for a more compassionate approach to criminal justice.
“Cabán certainly appears to be part of a new breed of prosecutors who have never locked up a person in their lives,” said Georgetown Law School criminal defense clinic co-director Vida Johnson. Johnson believes that there is “no one better suited” to be a prosecutor than those who have fought for defendants and seen the impact of the criminal justice system on communities. “They could change their communities. They could develop a community that comes to trust prosecutors and police.”
Johnson notes that Parisa Dehghani-Tafti, winner of the Democratic primaries for chief prosecutor in Arlington County, Virginia in early June, is another example of defenders upending tradition and going deeper into the system in order to transform it. Dehghani-Tafti was a public defender and an innocence protection attorney. She defeated incumbent Theo Stamos, who has been the chief prosecutor since 2011 and prosecuted cases there since 1987.
In nearby Fairfax County, Steve Descano, a former federal consumer protection attorney, unseated Raymond Morrogh. Both Dehghani-Tafti and Descano campaigned on reform platforms, pledging to reduce mass incarceration by minimizing prosecutions for low-level drug crimes and eliminating cash bail for nonviolent offenses.
These Democratic primary winners follow in the footsteps of progressive defenders-turned-prosecutors elsewhere. In Philadelphia, Richard Krasner, a former federal public defender and private criminal defense attorney, was elected district attorney in 2017 and has been the chief prosecutor since 2018. Like current contenders, he promised to reform the cash bail system that punishes poverty and ensures that the wealthy spend less time in custody than the indigent.
A year-and-a-half in, Krasner hasn’t exactly delivered. A June 25 article in The Appeal noted that the progressive prosecutor’s bail reform plans seem to have “stalled.” The Philadelphia Bail Fund recently reported on 125 cases heard between March 21 and April 14, finding that the district attorney’s office is still frequently requesting high bail amounts for minor cases. In some matters, magistrates presiding over the bail hearings even called the prosecutors’ demands “punitive” or “ridiculous.” The district attorney has a huge amount of influence on this issue and has promised to use it, but he’s moving slowly. If Krasner is really intent on reforming the cash bail system, there is little stopping him but the political will and the ability to exert his influence on his office’s prosecutors.
The new prosecutors are cool, supposedly. They want to work in the public interest, not on behalf of the prison industrial complex. But not everyone is convinced that their softer-on-crime approach is sufficient, given the state of American incarceration.
It’s difficult to quantify just how many people are in US jails and prisons because the system is split between states and the federal government and data isn’t always recent, nor is it easy to compile. But the nonprofit organization Prison Policy in 2019 puts the figure at 2.3 million people in 1,719 state prisons, 109 federal prisons, 1,772 juvenile correctional facilities, 3,163 local jails, 80 Indian Country jails, and military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in US territories.
A 2018 Harvard Law Review note, entitled “The Paradox of Progressive Prosecution,” questions the new wave of kinder and gentler law enforcers, arguing that their nontraditional approach to prosecution—increasingly popular with voters who have become aware of mass incarceration—doesn’t go far enough to help and instead might be hurting, concealing deeper problems of ingrained racism and classism. The note likens the current criminal justice system to “a piece of moldy bread.” When faced with this bad food, we have three choices—eat it, chomp around the rot, or refuse it altogether because it’s just not salvageable. It states:
Insistence on maintaining the status quo in the criminal legal system due to some delusion that it’s not oppressive is akin to eating the moldy bread. Advocating for more progressive prosecutors is akin to cutting around the spores. That might be better than going hungry, but it’s still unsatisfying, and risky. This Note pleads with people to stop eating moldy bread.
Progressive prosecutors are merely delaying a pressing conversation about real radical reform and legitimizing a rotten system, according to critics who say progressive prosecution is an oxymoron. Working from within a fundamentally racist and classist institution on incremental reform is dangerous because, critics say, it legitimizes the status quo.
“[T]weaking the criminal legal system by introducing nontraditional prosecution methods ignores the fundamental truth that this system was never intended to keep marginalized people safe,” the note states. “Counteracting the harms of an inherently punitive institution requires transformative reforms. Progressive prosecution is best thought of, instead, as a ‘reformist reform.'”
Steve Zeidman, director of the criminal defense clinic at CUNY Law School and former Manhattan public defender, is similarly skeptical of “progressive prosecutors.” He understands the concept, theoretically, but isn’t sure it can be practiced actually, or at least not profoundly.
Zeidman told Quartz that he sees how a defender would think they could do better than traditional prosecutors, be more fair, conscious, just. But it’s “unfathomable” and “mind-boggling” to him how anyone can switch from fighting for people’s freedom to locking them up. “It’s better. But it’s still law enforcement,” he said. “They still have to punish people in their name. Prosecutors are woven into the fabric of the system.”
While Zeidman concedes that public defenders—publicly funded fighters—are also insiders, he maintains that there’s a big difference between prosecution and defense. He even goes so far as to question what kind of defender would make the switch and how committed they were to defense to begin with. In an article in the Gotham Gazette on June 20, Zeidman outlined his concerns:
Before anointing any Public Defenders as righteous District Attorneys, it is imperative to discern what kind of Public Defender they were. Did they pound the pavement looking for witnesses? Did they spend hours researching the law and writing novel arguments to expand the law and protect their clients’ rights? Did they visit their clients whether in jail, prison, or at home? Did they regularly push back against prosecutors and fight in court with judges who ran roughshod over their clients?
The paradox is that most, if not all, of the fierce and tireless Public Defenders who meet the “test” spelled out above are the very ones who likely could not imagine prosecuting their clients in any way shape or form.
Still, he supports Cabán for Queens district attorney and believes she will do a better job than someone from a more traditional law enforcement background. “I would rather have Tiffany Cabán than anyone else. She’s pushing the envelope in critical ways,” Zeidman said.
His article isn’t about Cabán but about the deeper questions campaigns like hers raise. Enthusiasm for defenders-turned-prosecutors obscures the fact that not every defender is good or suited to become chief of prosecution and he questions just how progressive the proposed reforms really are.
From Zeidman’s perspective, reduced prosecution of minor offenses and ending cash bail are merely corrective measures. In the current justice system, which disproportionately imprisons people of color and the indigent, they are insufficient. It’s good but not enough. Zeidman calls these issues “low-hanging fruit.”
The small steps only allay public concerns prematurely, and delay a critical discussion of fundamentals, really big issues like prison abolition and radically transforming the country’s approach to crime and punishment, he contends. “It’s good. It’s nice. It’s not revolutionary,” Zeidman says of the progressive prosecution movement.