The Place of the Prosecutor in Abolitionist Praxis

Abstract

Progressive prosecutors have been widely hailed as the solution to mass incarceration. While scholars critique police and call to defund and dismantle them, they overlook prosecutors. This Article argues, to the contrary, that the legal arm of law enforcement can never be the full answer to its problems. The Article builds on the work of abolitionist organizers to theorize and critique progressive prosecutors. In so doing, it asks two key questions that scholars have left unanswered: 1. Should the system be changed from within? and 2. Can the system be changed from within. In other words, can reformers prosecute and can prosecutors transform? I answer the first question with cautious optimism, concluding that prosecutors’ institutional power and ethical mandate to “do justice” can be repurposed to start reversing decades of building the carceral state. As to whether prosecutors can transform the system, I conclude they cannot. Transformation entails ceding power to communities, divesting criminal system resources, and investing in societal supports that actually keep people safe. Prosecutors’ essential function to convict and punish people cannot meaningfully achieve the dismantling of the carceral state or the buildup of alternatives. Three pitfalls in particular impede them: exceptionalism, net-widening, and the hero complex. This inquiry is particularly timely as the progressive movement grows and some of the first wave face reelection. Despite their changes and rhetoric, progressive prosecutors are not shrinking their own footprint. None are decreasing their budgets; indeed most are asking for more resources to “help” people. This Article demonstrates that these prosecutors are not the “magic bullet.” They are at best a half-measure to achieve real change, and at worst, a ‘reformist reform’ which risks reentrenching and relegitimating the criminal system under new cover. I conclude by gesturing to the limits of all lawyers in fixing the carceral monster they largely created, and a call for greater attention to grassroots bottom-up change.