Is it true that progressive prosecutors have failed to create the change they promised? That’s almost impossible to say, both because some have been far more successful than others and because there’s no metric by which to measure success. Some district attorneys have opened bureaus to review old cases that have resulted in exonerations or, if not quite exonerations, at least concessions that convictions were wrongfully obtained, resulting in reversal and dismissal. Others have prosecuted cops for everything from rape, and theft to murder, where nary a cop was prosecuted before.

Is this not a significant step forward?

And yet, two prawfs assume it’s been a bust. The reason? Prosecutorial mutiny.

Elected progressive prosecutors face resistance on many fronts to their reforms of the overly harsh and racist criminal legal system. One of these forms of resistance is particularly corrosive—internal dissension by line prosecutors. This resistance flummoxes criminal legal system reform and undemocratically interferes with the will of the electorate.

Is the criminal legal system (which, obviously, should be distinguished from the criminal justice system because there is no justice to be had) overly harsh and racist? In some ways and to some extent, I would argue that it is. But then, I would argue, not simply assert it as a truism  such that it can be taken for granted. Begging the question is no foundation for a law review article.

Turning to the “corrosive” cause of the problems, “internal dissension by line prosecutors,” there were traditionally three types of lawyers who took jobs as line prosecutors. True believers, who want to be a prosecutor to put the bad guys away. Lawyers who saw the job as a path to gaining trial experience. Lawyers who couldn’t get the job they really wanted in Biglaw. There may now be a fourth group, progressive lawyers who see being a prosecutor as a way to change the system. Most prefer to be public defenders, but some may take the same view as the progressive district attorney as seeing the prosecutorial power as a means for good rather than evil.

Then there’s the “undemocratic” piece, that line prosecutors who fail to reflect the ideological bent of their progressive DA boss “interfere[] with the will of the electorate.” There is a valuable point to be made here, as the progressive DA was, indeed, democratically elected, usually on the promise that he or she would refuse to prosecutor a laundry list of offenses which they deemed racist, overly carceral or just plain wrong.

But then, there’s also the flip side of democracy, as legislators are also democratically elected and they enact, or leave in place, laws criminalizing the same conduct that the progressive prosecutors refuse to prosecute. It could well be argued that by electing a progressive district attorney, being closer to the singular duty of prosecution than a legislator, the electorate has spoken about what conduct it considers worthy of prosecution. On the other hand, the electorate may favor some elements of a progressive prosecutor’s platform and not others, or may think it’s a good idea and later change its mind when bullets start flying.

This resistance, which we term “prosecutorial mutiny,” is also unethical under the American Bar Association’s Model Rules. Given the pervasiveness of such mutiny alongside other sources of back-lash to criminal system change, we argue that progressive prosecutors are not the panacea to all the criminal legal system’s ills as many have hoped, and that resources should be focused on supporting other sources of change to the system.

The ABA has formulated model rules. They are meaningless, per se, as each jurisdiction has its own rules which may or may not be co-extensive with the ABA’s rules. The argument here is that special rules for prosecutors require them to be “ministers of justice,” which apparently assumes “justice” to be whatever progressive ideology dictates, and not applying the law as enacted by the legislature. Justice is a funny thing.

When a new district attorney is elected, he or she inherits a staffed office. While it’s not unusual for the new DA to replace the top people with his own, it’s not feasible to replace the entire office. Sure, it can be (and to a large extent is) doable over a period of years, but by the time new line prosecutors whose views are sympatico with the new progressive district attorney can be hired to replace the old “law and order” types, a lot of damage can be done to the DA’s plans and dreams. But is this mutiny?

One big difference between being the brass and being a line prosecutor is that the former sits in the big office and the latter holds the victim’s hands. The former talks with the chief of police while the latter talks to beat cops. The former makes policy decisions while the latter make plea offers with the eyes of the deceased’s family staring at him. It’s a very different job.

No doubt that line prosecutors who sought the position because prosecuting miscreants was what they wanted to do with their lives are not going to happily cut loose people they believe are gangbangers with guns they believe are not really just for self-defense. There are some prosecutorial types who have never met a defendant they thought was innocent or a constitutional right they deemed worthy of respecting. But are these the norm, the mass of prosecutors? Perhaps, and ridding an office of those the DA considers bad seeds who will work to undermine reforms isn’t an easy task. Then again, nobody promised progressive prosecutors the job would be easy.

No, progressive prosecutors aren’t the panacea the simpletons thought they would be when they put all their eggs in the district attorney election basket. But they haven’t been a failure either, even if they can’t turn the “criminal injustice” system into a progressive nirvana overnight. And maybe, just maybe, what has been accomplished has been pretty darn good and what hasn’t really shouldn’t be because it wasn’t such a great idea to begin with.