— By Erica West

July 10,2020

As ideas about socialism become more accepted, it feels like socialists are everywhere you look. We have democratic socialists in Congress, running for president, on city councils in cities like Chicago and Seattle, and now, in the criminal justice system. Across the country, we’ve seen more and more progressive and explicitly Leftist prosecutors and district attorneys.

The Left has typically had contempt for prosecutors, and for good reason. They are the ones enforcing mandatory minimum laws, asking for ridiculously high cash bail amounts that keep folks in jail for absurdly long, and throwing our comrades, family members and community members in jail. The most recent example of this leftist contempt for prosecutors has come in critiques of Democratic presidential candidate Kamala Harris. While she bragged about being tough on crime and promised she’d be tough on Trump, leftists rightfully have many legitimate critiques of her time as attorney general of California, where she was a proponent of jailing moms for their truant kids, among other “tough on crime” policies.

However, a new kind of prosecutor has emerged recently – progressives and leftists, who often worked as public defenders for years, being elected as district attorneys with the goal of reforming the criminal justice system and fighting mass incarceration from the prosecution’s side. The violence and oppression of the criminal justice system disproportionately impacts Black people in this country, and thus the question of what the Left should do regarding progressive prosecutors is not just a theoretical one, but an anti racist one.

Two of the most prominent examples are Larry Krasner in Philadelphia and most recently, Tiffany Cabán in Queens in New York City, both former public defenders. Public defenders defend folks accused of crimes, and for progressives, leftists, and prison abolitionists, these are the people we are almost always aligned with. Watching PDs essentially switch sides seems confusing at best, and like a betrayal at worst. For some, it can seem bizarre for the left to condemn Harris for her role as a prosecutor while celebrating Cabán’s recent election to the same position.

But proponents of this strategy argue that lawyers can have a huge impact from the prosecutorial side. In an interview with NPR’s Fresh Air, journalist and Yale Law lecturer Emily Bazelon argues that prosecutors often have more power in the courtroom than judges. They use what is known as “prosecutorial discretion” to choose what crimes someone is charged with, which is incredibly significant. The difference between a misdemeanor theft charge and a felony armed robbery charge can mean the difference between months or years in prison. Additionally, while a judge sets bail for a defendant, it’s usually whatever amount the prosecutor suggests. Thus, a district attorney who is committed to ending cash bail can have a huge, direct impact on poor and working class people in that area by not asking for bail. Finally, supporters of the strategy to elect leftist prosecutors argue that this gives us the opportunity to prosecute those who commit crimes but often get away with it – landlords, killer cops, business men and the like.

Still, how much of an impact can leftists and progressives have while working behind enemy lines? And what does this strategy mean for Black people in America, who are most impacted by the injustices and violence of the criminal justice system?

Analysis of the State

Any leftist interested in analyzing this new trend of progressive prosecutors needs to begin with an analysis of the state. Is it something neutral that can be reformed, and engaged with in good faith?

There is a reason why DAs so often rarely prosecute slumlords, white collar financial crimes or cops that kill innocent civilians in broad daylight. The district attorney is the lawyer for the state, and by extension, the capitalist class. The DA serves the interests of that class, which means enthusiastically perpetuating the racist, capitalist status quo. DAs enforce laws that protect the profit motive that make wall street bankers and landlords rich, and they collaborate and enthusiastically cooperate with the police to build cases against defendants. DAs enforce the logic of the criminal justice system that says when a crime occurs it must be met with punishment. For prison abolitionists, anti racists, and leftists, we know that the criminal justice system is punitive and inherently traumatic, violent and racist.

This new batch of progressive DAs is committed to doing things differently though. Krasner has dramatically reduced the use of cash bail in Philadelphia, meaning poor and working class defendants don’t have to sit in jail for weeks or months on end just because they can’t afford bail. He’s also called for an end to the death penalty, a violent practice that disproportionately affects Black people. Cabán has said she’s committed to prosecuting slumlords and not prosecuting crimes like sex work.

However, we are quickly seeing that electing one person is not enough. There is a very specific role that prosecutors play in the capitalist state of affairs, and there are many people and institutions that will fight tooth and nail to combat the reforms of these progressive DAs. In Pennsylvania, as Krasner works to end the use of cash bail and calls for the end of the death penalty, the state legislature just passed a law to undermine Krasner’s power and allow Philadelphia police to go straight to the Pennsylvania Attorney General. As Akela Lacy and Ryan Grim write in the Intercept, “One of the key powers of a prosecutor is to decide when to bring charges and, critically, when not to. The new law means that even if Krasner decides to exercise the latter power and not bring charges, the police could go directly to the attorney general to pursue the case regardless.”

Cabán, who seemingly won her election on June 25th in Queens, faced a recount that resulted in a loss to her opponent, Melinda Katz, by 55 votes. Katz, is firmly aligned with the corporate wing of the Democratic Party and was the party’s hand picked choice until Cabán came on the scene. With more money, political ties and political clout than Cabán, Katz was the party favorite to win. It’s clear that the corporate wing on the Democratic Party and the capitalist interests do not intend to go down without a fight.

This is no meant to disregard this strategy whole heartedly – any win by and for the working class, in any capacity, whether it be a strong union contract, an indictment of a killer cop or the election of a leftist, will be contested by the capitalist class. But it does call in to question how we can ensure the wins we achieve and how we can prepare to win again next time around. And it does show that if we are going to commit to wielding the power of prosecutors for anti racist, anti capitalist and prison abolitionist ends, it’s going to take much more than one election.

Engaging with DAs

If the Left continues to pursue this strategy, we have to take seriously our demands of prosecutors, and our responsibility as socialists and anti racists if and when these DAs fall short. No movement should be afraid of marching on the office of whatever DA we campaigned for if and when they betray the people.

We have to expand our demands, and have a holistic vision of the problems of the criminal justice system and solid strategies for chipping away at it. It’s heartening to hear folks like Cabán and Krasner commit to prosecuting slumlords while using their prosecutorial discretion on crimes like sex work and non violent drug charges. But that isn’t enough. Leftist prosecutors need to be willing to confront the most oppressive facets of the capitalist state, like the police. We need prosecutors who not only pledge to use their prosecutorial discretion for good, but who are willing to call for smaller police budgets, cops out of schools, and more resources into investigating police shootings.

Leftist prosecutors also need to be able to reform their own department’s practices. For example, district attorney offices often include a program for compensation for victims of violent crimes. Supposedly, the district attorney’s office is on the sides of the victim, keeping the community safe from violent and harmful people. Thus, victims of crime are told they can turn to the DAs office when they are need, but as F.T. Green writes in the Outline, “Prosecutors expertly weaponize the trauma and tragedy of American crime. When victims are camera-ready and cooperative, their rights are paramount in the pursuit of justice. If not, they are neglected and harassed — or worse.” Victims of crime that perpetrate crimes themselves or are on parole, or who are wary of cooperating with the police can be denied victims of crime services. In the worst-case scenario, they themselves can be incarcerated and taken into contempt of court for refusing to cooperate. This dynamic is especially relevant for Black victims of crime, who know all too well the violence of the police and the prison industrial complex. Can these progressive prosecutors stand in solidarity with victims who do drugs, who refuse to cooperate with police, who need services and support but cannot bear to see their community members thrown in jail? These are the demands we have to ask of these progressive DAs.

Analyzing this strategy based on what individual DAs in scattered cities across America do or don’t do is not enough. As socialism continues to grow in popularity in this country, this trend will likely continue. Any strategy to combat our racist and violent criminal justice system must include a key element – the militant power of the working class. We cannot become complacent and think that electing leftist prosecutors is enough.

It is an anti racist, militant, organized movement of the working class that will transform our criminal justice system, and our society as a whole. Working class Black people in cities like Ferguson and Baltimore, watched with horror as the police killed innocent Black men with impunity. They knew they couldn’t wait for the next election cycle, or for some leftist prosecutor to come down from on high to save them. They took the streets with clear demands and an even clearer analysis: “Indict, convict, send those killer cops to jail! The whole damn system is guilty as hell!” We can canvas for progressive DAs or we can critique them, but regardless it is essential we organize a militant, working class movement to put pressure on any DA, regardless of their politics, and to transform the criminal justice system for good.