By Tyler Yeargain*
*Associate Director, Yale Center for Environmental Law and Policy. This Article would not have been possible without the staff members of prosecutors’ associations, as well as elected prosecutors, who took the time to answer my questions and point me in the right direction. Furthermore, I would like to thank Daniel Nichanian (@taniel on Twitter) for his incredible work in reporting on prosecutorial elections for The Appeal. The portion of this Article that covers the shift in these elections—especially as they relate to prosecutors’ associations—would not have been possible without his dedicated reporting and attention to detail.
Progressive prosecutors are on the rise. Buoyed by dramatic changes in public opinion toward criminal justice reform, ambitious primary challengers, and air support from big political donors, they’ve defeated entrenched, punitive prosecutors in counties and districts across the county and have largely delivered on their campaign promises. But winning is only half the battle—once in office, they continue to face opposition from police unions, other government actors, and even dissent within their own offices.
This Article focuses on a new, and yet tragically underdiscussed, challenge that progressive prosecutors face: prosecutors’ associations. These associations, which function as a hybrid professional organization–quasigovernment entity, play a large role in the development of criminal justice policy. They lobby the legislature, are statutorily endowed with policymaking authority, exert influence in judicial and referenda elections, file amicus briefs, and provide training and other forms of administrative support to prosecutors’ offices. In other words, prosecutors’ associations matter.
Given the history of how prosecutors’ associations affect criminal justice policy, it is perhaps unsurprising that so many progressive, decarceral prosecutors—or progressive, decarceral candidates in prosecutorial elections—are skeptical about serving as active members of their state associations. Despite this skepticism, only a few elected prosecutors, most prominently Philadelphia District Attorney Larry Krasner, have actually quit these associations.
Others, including a bipartisan alliance of progressive prosecutors in California, some recently elected prosecutors in Virginia, and several unsuccessful candidates in Pennsylvania, have suggested an alternative way forward: forming their own progressive prosecutors’ associations as a counterprogramming effort. As conceptualized, these counter-associations would do the exact same things that the existing associations do, but with a thumb on the scale on the opposite side—for decarceral policies instead of tough-on-crime ones. Given the new nature of these proposals, they’ve generated little academic or activist discussion, which this Article attempts to remedy.
It begins in Part I with relevant background information about prosecutors’ associations. It briefly recounts their organizational histories, though given the paucity of historical records kept by the associations and their relative anonymity, this effort is necessarily limited. It then addresses the statutory framework in which prosecutors’ associations operate, by discussing the relationships between private and public prosecutors’ associations and the state-sanctioned policymaking authority that both associations have.
Part II then considers the external, policymaking role that prosecutors’ associations enjoy in their state governments. It considers how this role operates in three ways—lobbying, electioneering, and participation in litigation. It reviews the strategies and ideological positions of the associations and the results of their efforts.
Part III then explores the rise of progressive prosecutors. It recounts briefly, given the already well-trodden ground in academic literature, how this rise occurred and how candidates have been successful (or not). It then discusses a newer, less-discussed trend: progressive prosecutor candidates pledging to withdraw from prosecutors’ associations and to form new ones.
Part IV builds on the changes suggested by progressive prosecutors in Part III and conceptualizes several different options that these prosecutors may have—remain, start counterpart associations, create a nationwide association, or some combination thereof and applies historical analogies and some social psychological research to consider how each option may turn out.