Hana Yamahiro & Luna Garzón-Montano ∞

The selling point of the progressive prosecutor movement is that the prosecutor––the player with the most discretion in the criminal legal system––is in the best position to effect change within the system. But when progressive prosecutors have tried reducing mass incarceration, their prosecutorial discretion diminishes. Progressive prosecutors like Larry Krasner, George Gascón, and Aramis Ayala fully intended to make good on the progressive policies they touted on the campaign trail, but once elected, they faced relentless institutional pushback. Case studies of those three progressive prosecutors demonstrate that progressive prosecution’s incremental change proposes too little and costs too much.

While progressive prosecution is an improvement on traditional prosecution, it does not offer a path to ending mass incarceration, and in fact may distract or detract from that goal. In this article, we lay out our argument for why that is, including evidence in the form of case studies. We then offer some potential ways forward toward abolition, such as distancing prosecutorial reforms from prosecution offices and building programs focused on achieving Transformative Justice.

Two decades ago, Professor Abbe Smith first asked the question, “Can you be a good person and a good prosecutor?” 1 Her answer: “I hope so, but I think not.”2 Until that point, the question had not been broached in academic circles. Defense lawyers, she reported, were constantly asked, “How can you defend those people?” 3 Nobody interrogated prosecutors. Indeed, as Professor Smith noted in her article, the very suggestion that prosecutors were anything but good people was controversial two decades ago.4 Professor Smith’s article provoked a debate within the legal community5 that has only intensified over the past twenty years, particularly as the progressive prosecution movement has sought to identify and create “good” prosecutors. Even some “good” prosecutors acknowledge that the traditional prosecution model––one that responds to social, economic, and racial inequities by warehousing people––is difficult to square with a commitment to social and racial justice.6

Mass incarceration has long been recognized as one of the most pressing civil rights issues of the modern era,7 and progressive prosecution has been heralded as a possible solution.8 Prosecutors have all the discretion,9 the argument goes, so if progressives are the ones exercising that discretion, the worst excesses of the criminal legal system can be constrained or even eliminated.10

We reject the view that prosecution will ever be the solution to the crisis of mass incarceration. We believe any movement that embraces prosecution cannot be considered progressive in any meaningful way. Our contribution to this debate is to suggest that “progressive prosecution” is an ineffective antidote that distracts––and detracts––from the wholesale dismantling and re-envisioning of an approach to harm necessary to meaningfully address the current system’s endemic problems.

We are indigent defenders in Seattle, WA, and Washington, DC. We obviously prefer that our adversaries be “good” people or “progressive prosecutors,” but we do not believe that even the most “progressive” of prosecutors can successfully alleviate the harm caused by the criminal legal system. Progressive policies do make a difference to our clients, and we are grateful that the public perception of the criminal legal system and law enforcement has become increasingly critical of traditional prosecution.11  But at best, prosecutors can be less carceral.  It is not “progressive” to put fewer people in cages inside violent prisons, and it is certainly not a pathway to the kind of radical transformation that the entrenched racism and oppression of our current system demands in response.  We believe we must focus on a movement that will dismantle the criminal legal system. A diversion of attention and resources towards a handful of “progressive” prosecutors is an ill-advised detour on the path to abolition.12 In this Article, we will demonstrate the ways in which this less-carceral approach to prosecution – while welcomed at the margins, and significant for the relatively few individuals it benefits – is doomed to remain at the margins, not worth our sustained focus.

In addition to the inherent flaws in progressive prosecution, the reforms that prosecutors try to implement are often undermined by those who wish to maintain the status quo. This Article takes an in-depth look at the institutional and structural barriers that head prosecutors face when they try to use prosecution to solve the problems created by prosecution. Informed by our original primary research into offices considered to be progressive, the Article proceeds in three parts.

In Part II, we seek to make sense of the term “progressive prosecution,” and then examine the ways self-proclaimed progressive prosecutors struggle to implement their policies within the current criminal legal system.

In Part III, we present three case studies that illuminate the institutional roadblocks progressive prosecutors face. First, we look at the issues Philadelphia District Attorney Larry Krasner has encountered, including resistance by police unions and disgruntled line prosecutors. Next, we describe the resistance Los Angeles District Attorney George Gascón has faced from his assistant district attorneys and the District Attorney Associations in Los Angeles County and California, including the lawsuit these groups filed against him in response to his sentencing reforms.13 Finally, we turn to Florida State Attorney Aramis Ayala, whose boldest reform was blocked in her first week in office, stripping her of her discretion, and ending her prosecutorial career at one term. For all three case studies, our analysis is informed by interviews with leading progressive prosecutors and those who work with them in the system. 14

In Part IV, adopting Mariame Kaba’s two-pronged framework for abolitionist organizing,15 we propose concrete changes to current progressive programs in prosecutors’ offices that fit within an abolitionist framework. These are not just “more progressive” reforms. They are radical suggestions that, if implemented, will help to end mass incarceration and instead implement non-carceral methods of healing from harm. First, we discuss concrete changes that could be made to Conviction Integrity Units (CIUs) to expand the scope of cases they consider and remove them from the purview of prosecutors’ offices altogether. Then, relying on the work of abolitionist organizers, we discuss restorative justice, and the ways in which it could become community-led, instead of co-opted by prosecutors’ offices. Finally, we distinguish Transformative Justice from restorative justice and argue that any reimagining of the criminal legal system must be rooted in abolition.

“Discussions of ‘good’, ‘bad’, ‘progressive’, or ‘regressive’ prosecutors keep the focus on individuals and are a distraction that impedes the need for structural and systemic change.”

-Survived and Punished NY16

Prosecutors are the most powerful players in the criminal legal system because they are given broad discretion over decisions like which offenses to prosecute, what charges to bring, and what plea deals to offer.17 Progressive prosecutors should be no exception. Though the progressive prosecutors currently in power represent only a small fraction of the country’s 2,400 prosecutors, their districts account for large swaths of the incarcerated population in the US. Therefore, their potential to reduce incarceration is––in theory––great. 18 So, it is important to understand what is meant when referring to progressive prosecutors

In this Part we attempt to define progressive prosecution using the language of self-proclaimed progressive prosecutors and academics. We then provide an overview of the challenges progressive prosecutors face by virtue of trying to advance a progressive agenda within a punitive and regressive criminal legal system.

A. Defining the Progressive Prosecutor

There is no clear consensus on what is required to be a progressive prosecutor. In his essay “Imagining the Progressive Prosecutor,” Benjamin Levin states that this uncertainty “is unsurprising given the historical lack of clarity or consensus regarding what prosecutors should do and what the prosecutorial role should entail.”19 According to Levin, “[g]enerally, progressive prosecutor campaigns or descriptions of the ‘progressive prosecutor movement’ sound in some sort of reformist discourse.” 20 “And, most definitions of ‘progressive prosecution’ consist less of a statement of over-arching goals, theories, or ideologies and instead focus on specific policies.” 21

Levin suggests four ways to define the “progressive prosecutor.” First, the “progressive who prosecutes”22 “is progressive in the sense of her general politics. That is, her voting patterns, endorsements, political beliefs, and so forth might . . . fall[] somewhere left of center on the political spectrum.”23 But, her politics do not influence her work. Second the “proceduralist prosecutor”24 “brings a sort-of good government liberalism to the DA’s office,” 25 emphasizing that “defendants deserve fair process, . . . ensuring that line-level prosecutors see their job as doing justice, not just obtaining convictions.”26 Third, the “prosecutorial progressive”27 leans left politically. They care about systemic inequality and substantive rights, working towards the goals of political progressives. 28 Fourth, the “anti-carceral prosecutor,” wants to “shrink” institutional structures, and has no illusions about these structures’ abilities to do good.29

Our goal––and the movement’s goal––is abolition. So to us, the best a prosecutor can do is decarcerate. Currently, there is likely no city in the United States that would elect a prosecutor that openly supports abolition, or one who, using Levin’s framework, would be considered an anti-carceral prosecutor both because it would not be politically feasible and because prosecution and abolition are antithetical to one another. There are only less carceral prosecutors.

B. Structural Barriers to Progressive Prosecution

Even if an elected prosecutor were able to reform the culture of an office to the point where, for example, the metric of success is not securing convictions,30 prosecution is structurally incompatible with a radical revisioning of our society’s approach to assessing and repairing harm for three reasons.

First, prosecutors rely on the police to choose their cases.31 Criminal cases at the state level are initiated when a police officer makes an arrest. We know that poor Black and brown communities are more heavily surveilled and policed, which necessarily means that Black and brown people are arrested at disproportionate rates.32 addition, the police also frame cases for prosecutors: they write the reports prosecutors rely on to make important decisions.

Second, prosecution––even so-called progressive prosecution––is guided by and reinforces respectability politics. 33 Elected prosecutors, including ones that run on the promise to seriously curtail their office’s power, must make judgment calls about which people deserve leniency.34 That leniency will likely be afforded to the “deserving poor,” those deemed non-violent offenders: the drug offenders, the petty thieves.35 People who commit acts of sexual or physical violence, arguably the people who would benefit most from support and mercy and who, in any event, populate our prisons and jails in great numbers, will remain in the carceral system. Professor Butler, a former federal prosecutor, believes that even a progressive prosecutor with the right intentions will be thwarted by the adversarial system, which “forces lawyers to choose sides,” and the law-and-order culture, where “defendant sob stories about growing up in foster care, getting beat up by the police, or not being able to afford rehab are obstacles to [prosecutors’] success.”36

Finally, and, most importantly, being a prosecutor requires prosecuting.37 In this country, that means sending poor people to prison, most of them Black and brown.38 There is no dearth of evidence about how violent––both physically and sexually––prisons are.39 There is nothing progressive about deciding that non-violent people should be spared that violence and abuse, but people who commit more serious harm deserve it.40 In fact, the violent/nonviolent dichotomy can actually “bolster the penal system” as “politicians . . . increase the length of prison sentences for ‘violent’ offenses to compensate for the shortening of sentences for nonviolent offenses.”41

In our adversarial system, prosecutors may be able to decide whether or not to drop drug charges, or seek the death penalty, but prosecution can never––and does not purport to––address the conditions that lead to crime or meaningfully break cycles of violence that contribute to crime and poverty.42 Additionally, any prosecutor with a cursory understanding of prison conditions and dynamics knowingly seeks the incarceration of human beings in physically and sexually violent institutions. Therefore, any investment in criminal prosecution––whether “progressive” or not––only serves to legitimize our current system.43

C. Political Barriers to Progressive Prosecution

Finally, politics constrains the ability of prosecutors to follow through on their promises. According to recently recalled San Francisco District Attorney Chesa Boudin, “being elected inherently requires compromise.”44 Sometimes those compromises undermine the very principles on which prosecutors campaign.45  Progressive prosecutors have to walk the line of delivering on their campaign promises while not upsetting their constituents, judges, line prosecutors, and other politicians. 46 Boudin emphasized that head prosecutors have no direct client. Their job is to “do justice,” an abstract concept that means something different to every prosecutor and means something different to the family of the accused, and the family of the victim.47 In carrying out this function of their jobs, progressive prosecutors inevitably compromise one of those parties’ definitions of justice. 48

For example, Boston’s progressive prosecutor Rachel Rollins campaigned on the promise to categorically refuse to prosecute misdemeanors. Her platform was informed by a Boston study spanning fifteen years that showed that non-prosecution of nonviolent misdemeanors decreases the likelihood of a new arrest by 58% and decreases the number of new criminal complaints by 69%.49 Once in office, however, caving to political pressure, she reverted to “flipping the presumption” to ask whether prosecution is appropriate on a case-by-case basis.50

Even liberal head prosecutors are still “beholden to politics, and to their communities’ often media-driven sense of what it takes to keep them safe.” 51 Chesa Boudin told us about how his ambitions to stop requesting sentencing enhancements under the three strikes law were constrained by the pushback he saw his progressive colleague in Los Angeles endure:  “[Los Angeles District Attorney George] Gascón got sued by his own staff and the judge issued an injunction on his policies. Public defenders are mad at me for not having a blanket no 3 strikes [policy] but Gascón’s policy . . . got enjoined. So my policy [a case-by-case evaluation] can continue even if one client gets a prior strike.”52

Boudin believed he would be more successful in the long run if he is careful and intentional in the changes he makes. 53 He admitted it was a “tough line to walk between the risks inherent in moving quickly to decarcerate and moving slowly.”54 The same was true in San Francisco nearly twenty years ago. Former San Francisco District Attorney Terence Hallinan was “a progressive’s dream prosecutor” because he was against the death penalty and the Patriot Act, he did not prosecute people charged with using medical marijuana, and he promised to dismiss cases that arose from racial profiling. Hallinan’s campaign for a second term “included developing alternatives to incarceration for nonviolent offenders and holding the police accountable for police misconduct.”55 But he was never re-elected. His opponent “accused [him] of being soft on crime.”56 That opponent was none other than self-proclaimed “top cop” Kamala Harris,57 who was decidedly not progressive.58

In Chicago . . . since Kim Foxx took office [as State’s Attorney] in late 2016, there has been a decline in prison sentences along with a decrease in overall crime. But last year, along with white nationalist organizations, the Fraternal Order of Police staged a protest at her office in which police officers rubbed photos of her over their genitals and crudely heckled her. The police group also organized white police chiefs from the suburbs to denounce Ms. Foxx at a news conference. At the same time, supporters of the police forced a member of her staff to go on leave by harassing her with phone calls, berating her as an “N-word whore.”

-Rashad Robinson, New York Times Opinion Columnist59

The case studies presented in this Part demonstrate the ways that institutional players do not allow prosecutors to stop prosecuting. Considering this, we should not be investing time, organizing power, political capital, and money into their elections. 60 Instead, anti-mass incarceration activists and organizations should focus on effective transformation and harm reduction measures, such as decriminalizing behavior that is now criminalized, disaggregating prosecutors’ offices from social services, and otherwise dismantling an institution that, at its core, only excels at securing convictions.

This Part illustrates how political barriers prevent even the most “progressive” prosecutors from implementing reforms and leads us to our conclusion in Part IV. It tells the stories of three progressive prosecutors: Larry Krasner, George Gascón, and Aramis Ayala. Each case demonstrates a different set of institutional forces blocking progressive change. Krasner illustrates the prosecutor-police dynamic and how law enforcement, typically a partner to prosecution, is capable of thwarting progressive goals when they threaten police objectives. The prosecutorial resistance in Gascón’s narrative shows how a top-down approach can lead line prosecutors and judges to reinforce the status quo. Ayala’s story teaches us that institutional pushback can be so powerful as to both prevent meaningful progressive change and drive the progressive prosecutor out of office.

A. Larry Krasner

You might call me a prosecutor with compassion.

Or a public defender with power.

– Larry Krasner61

Larry Krasner of Philadelphia is perhaps the most well-known example of a “true progressive” who significantly propelled the progressive prosecutor movement forward. At the time of his election, the idea that Krasner––who had never prosecuted a crime––would be the next DA was “hilarious” to the city’s police union chief.62 But shortly after Krasner’s sweeping win,63 the amusing novelty of his success gave way to the police union’s vicious public censure of his progressive policies,64 own assistant DAs’ vigorous rebellion,65 and Assistant United States Attorneys usurping his cases.66 In many ways Krasner was the test case for progressive prosecution, a movement he calls “the most important civil rights movement of our time.”67

While Krasner initially expressed doubt when asked about running for a second term, he later changed his tune saying, “we’ve woken up the giants,”68 referring to the institutional actors who recognize the threat he poses to the status quo. Krasner savvily framed the burgeoning strength of the anti-reform movement in Philadelphia as a proper reflection of his achievements. Reflecting on his first term in an interview with The Appeal, Krasner said, “We took a lot of heat. Oh boy, was there heat. But that is to be expected when you are in year 11 of a 30-year arc of being part of a movement for social justice. You take a lot of heat because you’re getting things done.”69 The problem with waking the giants, though, is that they are now mobilizing to create an anti-reform movement of their own.70

Unlike the nascent progressive prosecutor movement, the anti-reform movement has the benefit of being able to work through strong existing institutions, like police unions. Police unions, emboldened by their largely untouchable position of power, pose one of the greatest obstacles to the movement to end mass incarceration. In the 1960s, police unions won the right to collective bargaining, joining the ranks of other labor unions but far surpassing them in political power,71 in part due to the alignment between their interests and the affluent. Labor unions had long rejected the idea that police be afforded the protection of the labor movement. As the American Federation of Labor put it, “[i]t is not within the province of the trade union movement to especially organize policemen, no more than to organize militiamen, as both policemen and militiamen are often controlled by forces inimical to the labor movement.”72 The distinction between most labor and police unions is apparent not only in their different political priorities but also in their political status: as the labor movement declined, law enforcement unions were empowered.73 Their amassed power has since been used as a weapon against progressive reforms and a shield from the consequences of police violence.74

Krasner has faced police union obstruction firsthand. A year into his tenure, Philadelphia’s largest police union, Fraternal Order of the Police (FOP), sued Krasner over a policy requiring prosecutors to notify defense counsel of any allegations of police misconduct when particular officers were called to testify as a witness.75 Krasner’s office had a list of such officers, which served as a database of officers who committed misconduct.76 Notably, the lawsuit was not in response to a radical shift in the prosecutor-police relationship in Philadelphia, because the list, though updated and expanded by Krasner, was actually created by the previous District Attorney.77 In effect, the police union’s lawsuit––which framed Krasner’s practice as a radical departure from prosecutorial conventions––was over Krasner asserting his office would follow well established laws requiring the disclosure of Brady and Giglio material.78

The lawsuit posed a substantial and time-consuming hurdle to Krasner’s progress.79 Over a year later, Krasner’s progressive policy creating a database of officers with a history of misconduct was given the judicial stamp of approval, but police unions in other jurisdictions, such as LA, have asserted their power and won against district attorneys who have sought to implement similar practices.80

Krasner also faced resistance from his own staff, a phenomenon we discuss in more depth in our second case study. The success of progressive reform within the prosecutor’s office is premised, in part, on the assumption that assistant DAs are the ones who decide whether to charge someone, or what punishment to argue for after conviction. Of course, a top-down leniency approach is helpful; in the authors’ experience, junior line prosecutors often cite their supervisors as the reason they are not authorized to offer whatever resolution a defense lawyer is seeking. But Krasner’s experience calls into question whether this approach can transform the priorities of junior prosecutors. Krasner encouraged and sometimes required non-prosecution81 and quickly faced a rebellion from his own prosecutors. Krasner notoriously fired 31 defiant assistant DAs who, viewing the new policies as an abdication of their duties, refused to follow them.82 The progressive prosecution movement sees changing the culture of DA offices as a necessary condition for meaningful change.83 By firing noncompliant ADAs, progressive prosecutors are attempting to do just that. But if we have learned anything from the continued police shootings of disproportionately Black people,84 it takes more than eliminating those 31 “bad apples.” Change requires dismantling the rotten institution.

Krasner’s explanation for the struggle to implement new policy in the DA’s office and, more broadly, the criminal legal system, is that “[c]ulture eats policy.”85 For example, one aspect of entrenched culture in prosecutors’ offices is not questioning the costs of prosecution. When Krasner instructed his line DAs to state, on the record, in court, the price tag of every sentence they requested, some judges rebuked the policy, not appreciating the education of taxpayers.86 Recognizing the influence a judge can have on their career, line DAs stopped the practice.87

Krasner now has another four years to navigate the thicket of policing politics in Philadelphia.88 But the entrenched opposition to his policies from both police and line prosecutors has taken a toll. While voters affirmed him as a progressive figure, they “l[eft] in place the same systemic vulnerabilities and weaknesses that were there before.”89 Krasner should be emboldened by his re-election. But the cumulative effect of the unrelenting opposition Krasner faced in his first term has landed him in-between the activists he is accountable to and conservative or traditional institutional actors. For example, even though Krasner has called cash bail “imprisonment for poverty,”90 his office’s policy did not come close to ending it: instead, anyone charged with any of 25 low-level offenses did not have bail set, which only affected about 10% of cases.91 Undoubtedly Krasner would have enacted policies that decriminalize poverty had he not been hamstrung by the system he knew would reject even the more modest version.92 Instead, community bail funds with far fewer resources than Krasner’s office were left to pick up the slack.93 Additionally, the perception that Krasner does not prosecute led him to release a statement confirming his office is still securing guilty convictions in the vast majority of homicide cases.94 While Krasner has staunchly opposed the death penalty and has not sought it, he has prosecuted dozens of cases where convictions resulted in life without the possibility of parole, while also making statements he supports giving a chance at parole.95 In the current legal system, where the only condition that changed is the prosecutor’s office, Krasner has to constantly toggle between progressive change and regressive assurance.96

B. George Gascón

“Indeed, a prosecutor has a mandatory duty to exercise discretion in favor of prosecuting crimes.”

-Superior Court Judge James C. Chalfant, ADDA v. Gascón97

In 2020, George Gascón ran for Los Angeles District Attorney against incumbent Jackie Lacey. His campaign promised criminal justice reform and a reduction of the Los Angeles prison population.98 Gascón, a former San Francisco police chief and District Attorney,99 won with 53.5% of the vote.100

After his election, Gascón immediately announced several reforms, including a refusal to apply harsh sentencing laws, such as the so-called “three strikes” law.101 Citing racial disparities and mass incarceration, Gascón’s Special Directive 20-08 instituted a policy prohibiting prosecutors from filing sentencing enhancements.102 He then declared his intent to re-examine the sentences of people who had already served 15 years, potentially expanding the policy to apply retroactively in some cases.103 To justify the policy and pre-empt opponents’ attacks, Gascón prefaced Special Directive 20-08 with the following: “[s]tate law gives District Attorneys broad authority over when and whether to charge enhancements.”104

Gascón’s line prosecutors and the Association of Deputy District Attorneys of LA County (ADDA) immediately challenged his reforms.105 This is typical of District Attorney associations, which tend to advocate for punitive policies and oppose reform.106 Within three days, Gascón succumbed to backlash, rolling back portions of his sentencing directive and allowing sentencing enhancements for six categories of crimes and other specified “extraordinary circumstances” with approval.107 For the reforms that stuck, it was not uncommon for prosecutors to read the directive verbatim into the record, and immediately argue against it, stating that, because they were forced to act contrary to their commitment as a prosecutor, the directive violated the California Code of Ethics.108 In response, judges denied the motion to dismiss strikes or enhancements.109 Outside the courtroom, conservatives from the DA Association referred to Gascón’s reforms as acquiescing to “certain fringe groups.”110 As James Nelson, formerly incarcerated organizer with Dignity and Power Now,111 recalls, “[p]eople were getting more time for enhancements than the crime they were being charged for,” an issue that persisted despite Gascón’s directive.112

Less than three weeks after Gascón’s first Directive, the ADDA, with the support of the California District Attorneys Association (CDAA),113 sued Gascón over the lawfulness of his “radical” Directives.114 The ADDA and CDAA claimed that the progressive policies were an abuse of discretion in conflict with prosecutors’ legal and ethical obligations and the separation of powers doctrine.115 To bolster their accusation, the ADDA quoted the examples of local judges refusing to accept line DAs motions to strike prior convictions in the furtherance of justice.116 Chesa Boudin, who replaced Gascón as San Francisco District Attorney, noted in an interview the undeniable hypocrisy in that “[a]lmost no one –– and certainly none of the folks attacking George from the right –– ever raised concerns about prosecutorial discretion when prosecutors were seeking to send people to prison for life for stealing a pizza.”117

The lawsuit against Gascón is a win for the ADDA. The court granted the ADDA’s preliminary injunction in large part. The court held that Gascón, as district attorney, is enjoined from directing his deputy district attorneys not to plead and prove strike priors under Three Strikes law and enjoined from compelling them to dismiss strike priors without legal basis.118

Since the lawsuit defeat, Gascón has taken a tempered approach to progressive change, a far cry from the bolder sentencing overhaul he enacted on his first day in office. For example, Gascón played the role of supporting actor for progressive sentencing legislation by promoting Assembly Bill 1127, which would allow a juvenile conviction to be vacated rather than used as a strike for unduly harsh sentences down the road in adult court.119 This is despite the fact that arguably one of the strongest selling points of the progressive prosecution movement is that the most powerful actor in the system would not have to play the politics required for legislative change and could act unilaterally. Gascón has also proposed the relocation of some prosecutors to police stations to decentralize the power in the hopes of strengthening community ties.120 This milder, misguided reform misdiagnoses the problem121 and does not advance radical change. In fact, the reform actively detracts from transformation to a society where accountability and healing occurs outside the criminal legal system, by strengthening ties between prosecutors and the police.  At the very least, stationing prosecutors in the community does not change the nature of prosecution, much like community policing does not solve the issues inherent to policing.122

Like Krasner, Gascón has faced insubordination from his deputy DAs.123 The head of the child abuse unit went on TV to call his boss “pro-criminal, anti-victim” and someone “who refuses to follow the law.”124 Line DAs also spoke out in outrage to the downsizing and renaming of the Hardcore Gang Unit to the Community Violence Reduction Division.125 Neighboring DAs counteracted his sentencing reforms by fighting to reclaim cases from his offices because of the risk they could receive lighter sentences if prosecuted by Gascón.126 Following in Krasner’s footsteps, Gascón sought to shake up his office dynamic by hiring former deputy public defender Tiffiny Blacknell, who identifies as an abolitionist, to executive staff.127 The hiring decision was characterized as creating an echo chamber by the head of the prosecutor’s union and called “unconscionable” by the police union president.128 In hiring public defenders, Gascón is aiming to overhaul the tough on crime mentality and shift the culture towards a more rehabilitative and restorative oriented office.129 But, given the amount of pushback by the unions, the turnover created a larger fissure in the fault lines between the new class and veteran line DAs.130

There are now calls to recall Gascón.131 The LA County sheriff, along with deputy district attorneys working under Gascón, are fervently supporting his recall.132 Victim vigils have become a rallying site to fuel momentum for the recall effort. 133 A resolution was passed by two city councils in Los Angeles affirming votes of no confidence in response to the Special Directives concerning sentencing reform.134 e recall effort exposes the fragility of DA reforms because “demanding prosecutors decline to prosecute certain charges is a discretionary decision that depends on the particular prosecutor in power (and follow-through by individual line prosecutors).”135

Gascón has found himself “surprised by the lengths [his opponents] are willing to go to mislead” and to target his policies.136 The devastating reality is that Gascón’s progressive reforms, which had the potential to impact 20,000 currently incarcerated individuals and 10,000 people with active cases,137 have faced so much opposition from institutional actors that they have already been significantly stunted. Gascón’s failure to implement many of the reforms he promised demonstrates how the money and organizing power used to elect him may have been better spent on more effective and permanent measures, such as direct campaigns to repeal harsh sentencing laws.

C. Aramis Ayala

Always remember prosecutors do harm. If you’re looking for harm a progressive prosecutor caused, you don’t have to look far. Because you have to incarcerate. I’ve had to do that within the system in which I’ve had to work.

– Aramis Ayala138

Aramis Ayala’s progressive prosecutor story is a sobering account of the movement. Florida’s first Black state attorney,139 Ayala’s experience is an example of what happens when the institutional resistance wins—not only was she prevented from implementing progressive policies, but she was effectively pushed out of office. After her term ended, we were fortunate to have a conversation with her about her experience as a prosecutor elected under a progressive mantle and her decision not to run for a second term. Instead, Ayala is running for Congress in Florida’s 10th district,140 turning away from progressive prosecution as a locus of reform and focusing instead on legislative advocacy.

Just four days into her time as State’s Attorney of the Ninth District of Florida, Ayala refused to seek the death penalty.141 In fact, she decided her office would never seek the death penalty.142 She cited the death penalty’s lack of deterrent value, the hierarchy of victims that prosecutors create in deciding when to seek death, the costly and lengthy process, and the retraumatization of victims throughout the process as reasons for discontinuing it.143 Then-Governor Rick Scott refused to accept her decision to take death off the table, a response which regrettably, has been common among Attorney Generals.144 Via executive order, in an encroachment on Ayala’s power and discretion, the Governor reassigned all death-eligible cases in her district to another state’s attorney who would seek the death penalty.145 In an effort to maintain her jurisdiction over those cases and discretion not to seek to the death penalty, Ayala sued.146 All nineteen elected district attorneys in the state of Florida, with the institutional backing of their DA association, joined the Governor in supporting the removal of her discretion.147 They were affirmed by Florida’s supreme court ruling against Ayala.148 To further punish Ayala’s progressive aspirations, her budget was also cut.149

Ayala’s decision not to run again has everything to do with the institutional roadblocks she faced and nothing to do with her commitment to change the criminal legal system. In our conversation with her, she acknowledged that one deficiency of progressive prosecution is prosecutors only interact with a person in the moment their case is pending. There is a lot of front-end work that prosecution misses, including the norm of criminalizing social inequities. Ayala is also sensitive to the backend re-entry work that exists outside the purview of prosecution.150

Despite her experience, Ayala thinks it is worth continuing to invest in the election of progressive prosecutors because “the value of their progressive goals does not depreciate because of the institutional obstacles they face.”151 But, it will require changing the mindset of the institutional actors trying to maintain power who feel they are being threatened. In Ayala’s view, that will require using metrics, like falling crime rates, that irrefutably support reform, and it will take time.152

The people of Orlando-Osceola County once again voted in a self-proclaimed progressive to succeed Ayala, but the other three candidates, including Ayala’s chief assistant, ran on platforms focused on increased prosecution, rather than reformation.153 Ayala’s successor states she will not undo the reforms Ayala was able to implement, but she could. While a progressive successor may quell Ayala’s consternation about the impact of the changes she was able to accomplish, it could easily be upended if the tides turn. Ayala’s trajectory from pushed-out prosecutor to congressional candidate illustrates our point: the resources and brainpower used to elect progressive prosecutors are better spent on advancing the  more permanent  and effective solution of transformative justice.

Ayala is now “keenly aware” that the law “impacts people in a way that doesn’t necessarily empower individuals on the ground but reinforces power at the top.”154 The attacks she faced as a Black woman––the first Black state’s attorney in Florida––and progressive prosecutor were unmistakably personal racist affronts targeting her identity as well as her political position.155 If she, as the supposed most powerful actor in the criminal legal system, was unable to reform the system according to her vision, how can progressive prosecution deliver on its promises?

I first encountered the idea of a new racial caste system in the mid-1990s when I was rushing to catch the bus in Oakland, California and a bright orange poster caught my eye. It screamed in large bold print: THE DRUG WAR IS THE NEW JIM CROW. I recall pausing for a moment and skimming the text of the flyer. A radical group was holding a community meeting about police brutality, the new three-strikes law in California, the drug war, and the expansion of America’s prison system. The meeting was being held at a small community church a few blocks away; it had seating capacity for no more than fifty people. I sighed and muttered to myself something like, “Yeah, the criminal justice system is racist in many ways, but it really doesn’t help to make such absurd comparisons. People will just think you’re crazy.” I then crossed the street and hopped on the bus. I was headed to my new job, director of the Racial Justice Project for the ACLU in Northern California.

– Michelle Alexander156

We know the abolitionist vision will not be realized tomorrow.157 It is simply not possible to jump from where we are today to a world with equal resources and without police or the prison industrial complex. But because reformist reforms158 “continually fail to substantially alter the material conditions of the majority of Black people,” transformative change is non-negotiable.159 Even if it takes a lifetime of struggle. Activists have won this type of change before. For example, in response to former Chicago police commander Jon Burge’s torture of over one hundred Black men, Mariame Kaba helped organize an “unprecedented campaign and outcome, which mirrored the professed values of the growing abolitionist movement: repair and restoration.”160 Jon Burge’s victims and their families were awarded reparations including a “five-and-a-half-million-dollar compensation fund,” “waived tuition at the City Colleges of Chicago, a mandatory curriculum for Chicago public schools about the police torture, and a public memorial.”161 Kaba and other organizers “develop[ed] initiatives that could repair the harms done by the Chicago Police Department”162without relying on the criminal legal system and the prison industrial complex.

In this Part, we first discuss two reforms that many “progressive” prosecutors have embraced: Conviction Integrity Units and restorative justice. As currently constituted, these reforms demonstrate how in the hands of prosecutors, even the most progressive measures are undermined by the inherently carceral nature of prosecution. Recognizing that prosecutors’ offices won’t be abolished anytime soon, we still see the value in providing some concrete, near-term suggestions that will have a more significant decarceral effect than what currently passes for progressive reform. To that end, we offer suggestions aimed at improving these reforms, primarily by severing their operation from the prosecution function, and envisioning them as a model of a decentralized, community-based approach to addressing harm. Finally, we discuss what we believe is truly necessary to put us on the path to abolition, which is a commitment to Transformative Justice.

A. Conviction Integrity Units

Conviction Integrity Units (CIUs) are units within prosecutors’ offices that review old convictions based on claims of actual innocence. In theory, they work to right wrongs by overturning prior convictions where prosecutorial misconduct, improper police work, shoddy forensic evidence, or witness error led to the conviction of an innocent person.163 But, in practice, CIUs are subject to several limitations.164 First, the same office that prosecuted the case then reviews it for actual innocence, potentially creating misaligned incentives and subjecting review to confirmation bias.165 Second, CIUs as they currently operate put the onus on the person subjected to the misconduct to prove their innocence166––an incredibly difficult feat, especially considering that those applying for relief are incarcerated.167 Third, most CIUs focus only on actual innocence.168 Even when CIUs successfully free innocent people, the stories we hear about CIUs are typically extreme.169 Prosecutors will “cherry-pick the cases, overturn the obviously worst ones, thump their chests about all the good being done.”170 Relief is granted so infrequently through CIUs because  wrongful conviction is thought to be like a “plane crash[]”171––a rare and extraordinary event.172 Moreover, we believe that a CIU devoted to cases of actual innocence sends the harmful and inaccurate message that only the conviction of an innocent person can lack integrity or be “wrongful.” Surely that is not the case, and the limitation on innocence is a serious structural flaw in the concept of every CIU of which we are aware.

In seeking to repair harm through prosecutorial accountability, CIUs have potential to facilitate reconciliation. In our view, this potential would be far more accessible and effective if (1) CIUs were not housed in prosecutor offices, (2) eligibility was expanded beyond factually innocent people, and (3) justice through a CIU included monetary or other restitution from the state to the person harmed.173 CIUs should serve as a form of reparations, because “[w]ithout remedying the accumulated impact of past harms, we are destined to perpetuate them.”174 That requires “acknowledging and materially addressing past, and continuing, harms” with measures such as official apologies, financial reparations, and potentially other benefits like those won in Chicago.

Of course, prosecutors would have an explicit role in this process (including funding it), but they cannot be gatekeepers of a process when their own misconduct caused the harm. There is an inherent conflict of interest between a prosecutor in the CIU reviewing a case prosecuted by their coworker with whom they may be having lunch the next day.175

One possible solution would be to construct a CIU funded by the DAs office, but not housed there, that is run by formerly incarcerated individuals. Formerly incarcerated people understand most accurately the hurdles that people in prison face when they try to prove their innocence from behind bars. Additionally, formerly incarcerated people understand the range of people who are incarcerated much better than prosecutors do. As such, for basic––but critical––features of the CIU like the intake form or the initial criteria, they are better-positioned to create effective systems.176 Finally, incarcerated people have a deeper understanding of conviction integrity and what constitutes a wrongful conviction that should fall within the purview of the CIU: not only cases of actual innocence, but also cases in which someone’s rights are violated in a way that undermines the process or the reliability of a conviction. Predictably, the changes to CIUs we are proposing would beget much more opposition than the existing CIUs because of their transformative nature, but also would provide substantially more justice to those harmed.

B. Restorative Justice

Restorative justice is a practice that “can be applied both reactively in response to conflict and/or crime, and proactively to strengthen community by fostering communication and empathy.”177 It is a form of healing both for those who have been harmed as well as those who exacted the harm. The practice is rooted in the peacemaking principles used by some Native American tribes.178 The objective is for everyone entrenched in the conflict to reach a shared insight into what caused the harm or injustice and address the needs of those harmed.179

Prosecutor-led restorative justice programs are generally a good thing—they can divert people from prison—and an example of a practice that a less carceral (but—we still maintain—not truly progressive) prosecutor tends to embrace. Unfortunately, as the examples below show, restorative justice has been co-opted by prosecutors who sort cases into categories of eligibility.180 The progressive prosecutor movement’s commitment to alternatives to incarceration, like restorative justice, can be seen as a “course correction,” but it certainly does not meet the Transformative Justice alternative Mariame Kaba and other abolitionists are seeking.181

The ties between restorative justice and prosecutor offices should be severed,182 relinquishing that power and responsibility to communities themselves. If that were to happen, once a prosecutor referred a case to a community-led restorative justice program, they would not later prosecute the individual for failure to complete that program. In our view, there is nothing additive that the prosecutor’s office provides by being involved in the process. The facilitation, programming, and healing all come from the community. Restorative justice “cannot be ‘co-governed’ with/by community organizations” and prosecutor offices.183 Abolitionist values ask us to find a way of addressing harm that doesn’t further violence through punishment. With prosecutor-driven restorative justice, future harm is still on the table.

Danielle Sered, founder and director of restorative justice organization Common Justice, is right when she says “we cannot incarcerate our way out of violence.”184 As an alternative to incarceration, Sered has been able to create a restorative justice program in the Bronx and Brooklyn.185 The program offers the opportunity for those harmed by violent crime to opt into their restorative justice program as an alternative to incarceration. Common Justice’s experience proves that retribution is not what those who have been wronged want. Over 90% of people victimized choose Common Justice over incarceration.186 This is unsurprising given that healing is more valuable when the accountability comes from the individual who caused harm, rather than the state through conviction and sentencing.187

Restorative justice programs like Common Justice go beyond traditional rehabilitative or diversion programs because they “address the underlying causes of violence [to] help foster a long-term process of transformation for individuals and communities.”188 Common Justice recognizes that reducing mass incarceration requires addressing violence.189 But when restorative justice programs are deeply tied to the criminal legal system, there’s always a catch, even in a model like Common Justice. For example, Common Justice requires the DA to opt into the program by agreeing to offer it.190 And not all crimes qualify for restorative justice programs offered by prosecutors.191 Many exclude the most serious crimes like murder or some of the most common crimes like intimate partner or family violence and sexual assault.192

San Francisco’s “Make it Right”193 restorative justice program is an example of a program that largely operates outside of the prosecutor’s office194 but is ultimately controlled by it. Significantly, and in contrast to other DA’s offices that have restorative justice programs, once the case has been handed over to a nonprofit called Community Works, district attorneys do not participate in the process.195 Community Works provides status updates regarding the stages of the case (e.g., enrolled, conference completed, agreements completed); everything else is confidential.196 For people whose case is diverted, the goal is to engage in dialogue to accept accountability and create an agreement designed to address the root causes of their behavior. The person who caused harm must complete all of the agreements and then the case can be discharged.

Like Common Justice, “Make it Right” is a worthy program that falls short of our vision. It comes with a robust set of caveats. For example, only felony cases that are in the pre-charge stage are eligible for diversion.197 Additionally, the person charged cannot have used a weapon, and the victim’s injuries cannot be severe.198 According to the Impact Justice report,

“[T]he DA’s office purposely aligned eligibility criteria to include crimes for which youth of color are disproportionately arrested, charged, and incarcerated. And by making the charging decision prior to the diversion decision, [the DA’s office] can be certain that it is not sending cases to restorative justice that it would not have otherwise taken seriously.”199

Unfortunately, for restorative justice to become widespread, programs would need to commit to accepting serious cases like sexual assaults and homicides.

Our vision of community-led restorative justice comes with its own set of limitations. Because the fulcrum of restorative justice is individual relationships, issues of race, class, gender, and other social constructs or conditions that lead to the harm are left unaddressed. That’s why Transformative Justice, focusing on systemic inequities, is necessary to work in tandem with the healing and accountability of restorative justice.

C. Transformative Justice

The case studies in this Article teach us that we need to transform, rather than reform, the system. Angela Y. Davis provides the necessary framing by pointing out that

“if we want to imagine the possibility of a society without racism, it has to be a society without prisons. . . . security is a main issue, but not the kind of security that is based on policing and incarceration. Perhaps Transformative Justice provides a framework for imagining a very different kind of security in the future.”200

As Mariame Kaba explains, the focus of Transformative Justice is “transform[ing] the conditions that led to interpersonal harm and violence that you’re dealing with at the moment.”201 Instead of investing in progressive prosecution, and thereby decreasing time, money and energy for transformative change, we should be making investments “that transform the political and social order, including ‘meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare,’ decriminalization, and restorative justice projects.”202

Mariame Kaba distinguishes Restorative and Transformative Justice in her book, “We Do This ‘Til We Free Us.” She explains that Transformative Justice is more expansive and focused on changing the root societal causes of crime.203 Restorative justice is narrower in that it specifically focuses on the relationships that are broken through harm, and any community involvement is focused on repairing the broken relationship.204 However, both understand that the “victim” and “perpetrator” identities are deeply intersectional, and Transformative Justice rejects the dichotomy altogether.205 Restorative justice has been legitimized in some spaces within the criminal legal system, whereas Transformative Justice operates outside of it entirely.206

While restorative justice provides an avenue to restore fractured relationships and demand accountability, Transformative Justice recognizes that “structural and state violence that exists is a mirror of the interpersonal violence that exists.”207 Generation Five, an organization dedicated to preventing child sexual abuse through Transformative Justice, explains that the three core beliefs of Transformative Justice are: the individual and the collective are “equally important, mutually supportive, and fundamentally intertwined”; conditions that perpetuate violence must be transformed for individual impact; and state responses to violence not only fail to address violence, but perpetuate it.208

Transformative Justice is imperative because

“[t]he community’s intervention stops the harm. It also enables the actor to acknowledge the act as harmful or violent, to take responsibility for the act in the face of oppressive conditions, and to understand the relation between this act and the oppressive social context. Going through this intervention process is itself one of the most vivid forms of community education available to us. The education involved in calling and stopping the harm is key in preventing more harm.”209

Transformative Justice goes beyond any state-sponsored solution because it does not just allow the person affected by the harm to return to their previous condition. Therein lies the transformative power. It requires the person who exacted harm to be “an active participant in this rebuilding of community for the person harmed[.]”210 This can mean a communal denouncing of the act, an intervention with the person who exacted harm and the community and an understanding the relationship between the act and oppressive conditions so that those conditions can be improved.211 “[A] deep transformation of the actor accompanies the transformation of the community.”212

Additionally, “Transformative [J]ustice calls on us to shatter binaries,”213 especially the victim-offender dichotomy.214 That binary “only works if you’re looking at one specific incident at a point in time, because usually the very same people who are victimized in one context have perpetrated in another.”215 Further, a national survey of victims proves that those harmed long for solutions beyond prosecution and conviction, such as investments in education and jobs over investment in prisons and jails.216

Calls for Transformative Justice are often met with the demand for proof of its efficacy by skeptics reluctant to accept a total overhaul of the status quo.217 Mariame Kaba says we should reject this demand because the current system “has all the resources while [those] on the ground trying to build these tiny experiments have none of them.”218 and prisons are never asked to produce metrics of success—in terms of reducing harm to communities—to secure more funding, communities should not have to prove themselves, before receiving funding, to be taken seriously.219 Nonetheless, there are successful local examples to draw on.

To prevent conditions that cause crime, the LA for Youth campaign practices Transformative Justice, advocating for the reinvestment of the law enforcement budget in youth—to create 15,000 jobs and paid internships for youth and 350 jobs for community-based peacebuilders and interventionists.220 Critical Resistance in Oakland developed medical kits that include information and resources for responding to emergencies, including overdoses and mental health crises, for those who want to avoid calling 911––an act which frequently ends in prosecution.221 Project NIA’s Transformative Justice curriculum guide highlights the Storytelling and Organizing Project’s real world examples of Transformative Justice.222 One example illustrates a man responding to a person with a gun in crisis by calling a community organization to de-escalate, rather than 911, and then mapping out everyone in the community223 to call instead of the police.224 Another example is a woman who called a community organization called UBUNTU, which works to “prevent, disrupt, transform and heal sexual violence,” for  help ending an abusive relationship.225 Together with those from the organization who responded to the relationship violence, the woman was able to accomplish all of her goals—remaining in her home, keeping her children safe and ending the relationship.226 The organization set up a schedule for someone to be with her for the first period, and then provided her with a list of people to call from the organization instead of the police.227 As these examples show, in reality, Transformative Justice is sought out and practiced daily by those aiming to keep each other safe and healthy.

D. Responding to Critique

There is no doubt that the solutions we propose, which have been demanded for as long as the criminal legal system has existed, will provoke resistance. The progressive agenda proposed by the prosecutors discussed in this Article is more modest than Transformative Justice, defunding, or abolition. But what our current system makes clear, and what we have argued above, is that the criminal legal system offers no solutions. To prosecute is to do harm.228

According to Mariame Kaba, in thinking about getting from where we are to where we want to be, we must first ask whether our solutions “rely on these current death-making institutions,” and second, whether they “expand the scope of the current death-making institutions.”229 The proposals we set forth in the preceding sections are worthwhile because they do not rely on or expand the scope of the prison industrial complex. They address mass incarceration before an arrest, a charge, or a conviction. Community-led restorative justice and Transformative Justice focus on addressing the root causes and conditions that led to harm and repairing the relationships affected by that harm. To be sure, these solutions are not accepted by the mainstream criminal legal system, but if provided with more resources, they could be, given that organizations are already doing this work locally.230

In their current state, we believe that the Transformative Justice programs we propose do not appear scalable and would therefore require an influx of resources. Because abolition will require defunding prosecution offices and building up community organizations, it is useful to compare their current budgets, even in broad strokes. The 2020-2021 budget allocated to Los Angeles District Attorney George Gasćon’s office is $454.5 million.231 Last year, Philadelphia District Attorney Larry Krasner’s office operated on a budget of $38.27 million, which he argued was insufficient.232 The disparity between these progressive prosecutors’ budgets and the community organizations to which we cite is striking. For example, Community Works, the organization working with the Make it Right Program, received a $1.9 million grant from the District Attorney’s office in San Francisco to expand its program.233 Investing in prison abolition requires building up community organizations and reallocating the funds dedicated to public safety away from prosecutors to non-carceral programming.

Progressive prosecutors like Krasner, who request budget increases, claim that additional funding is needed to decarcerate and to build alternatives within the prosecutor’s office.234 But the abolitionist framework requires that we expand those programs outside the purview of prosecutors and within community organizations, giving the latter the ability to address harm currently handled by the criminal legal system. Funding is often a zero-sum game. We can direct dollars towards less carceral prosecutors who call themselves progressive, or we can direct those resources to transformative programs that do not rely on prosecution. Given that resources are finite, we likely cannot meaningfully do both.

In addition to skepticism about resources for transformative approaches to harm, another unavoidable question is how to deal with domestic and sexual violence through restorative and Transformative Justice, without prosecutors. This question is closely related to the conventional wisdom that the criminal legal system and the prison industrial complex are necessary vehicles for delivering justice to victims of violent crime, particularly sex crimes.235

First, prosecutors are not victims’ lawyers,236 and as such, they do not represent victims’ interests. Paul Butler writes, “As a prosecutor, I had several occasions to tell victims, ‘I don’t represent you.’ The prosecutor’s client is the government, not the victim. Victims are simply witnesses, with all the baggage that implies.”237 Second, because victims are “just” witnesses, they are subject to tactics prosecutors use to win cases––“[t]his may involve coercion, for example subpoenaing people to make them come to court even if they don’t want to. It may involve harsh questioning or threats. The victim is supposed to tolerate it, based on the understanding that it’s all in the service of punishing her victimizer.”238 Additionally, racism and classism undoubtedly affect prosecutors’ perceptions of who will be a good witness.239 Thus, the idea that prosecutors are necessary to protect victims is complicated by the fact that they do not represent them and accordingly do not prioritize their desires or needs.

As for the question of whether some form of traditional prosecution is needed to hold perpetrators of sexual violence accountable,240 abolitionists are well-versed in responses to this common inquiry. They recognize that police and prosecutors do not prevent the harm from happening in the first place and that the majority of people victimized by sexual violence do not turn to the criminal legal system for justice.241 The call is not to just defund the state, but to “deny the state punishment as the primary mode of governance, and redirect its involvement into other spheres of governance (schools, housing, health care, jobs).”242 The problem is that putting those perpetrators in prison “does nothing to change a culture that makes this harm imaginable, to hold the individual perpetrator accountable, to support their transformation, or to meet the needs of the survivors.”243

Both restorative and transformative practices are suitable to address the harm caused by sexual violence. Restorative justice can be used as a way to restore the wellbeing of the harmed party and move forward in a number of ways including a safe breakup or finding a healthy and safe way to co-parent.244 Addressing intimate partner violence through community-based restorative justice both respects an individual’s choice not to rely on police or courts and “lead[s] [restorative justice] practitioners to be accountable to the community, rather than the courts.”245 Generation Five, an organization dedicated to preventing child sexual abuse, has written extensively on the use of Transformative Justice.246 To them, it is necessary to address economic exploitation, male supremacy, and homophobia because it is the culture that normalizes sexual violence and creates the conditions for its prevalence.247 Unlike progressive prosecution, Transformative Justice will prioritize shifting power to those harmed and their communities to both address past harm and prevent future harm.

In Freedom is a Constant Struggle, Angela Y. Davis writes: “[t]he very existence of the prison forecloses the kinds of discussions that we need in order to imagine the possibility of eradicating these behaviors.”248 Dressing up prosecution as “progressive” ignores the fact that prosecution has never addressed the conditions that lead to crime. Even diversion programs, drug courts,249 and prosecution-provided social services do not address the underlying causes of crime, and instead create more mechanisms for surveillance and punishment.250 As Davis points out in the context of prisons, reform has “always only created better prisons.”251 To pretend that mass incarceration is simply the result of the wrong kind of prosecution misses the mark, and distracts us from the reality that mass incarceration is fueled and sustained by prosecution itself. Furthermore, as our case studies show, even the most well-meaning progressive prosecutors face pushback from other prosecutors, courts, and police organizations that force them to compromise or abandon the reforms they propose.  Prosecution––progressive or otherwise––is not the solution.

We have spent much of this Article discussing why alternatives to progressive prosecution are the answer, but it is much harder to write about the how.252 As the authors of Beyond Survival: Strategies and Stories from the Transformative Justice Movement write, “[t]heory without practice can be irresponsible, and it can drive people who need immediate solutions away from the support they need.”253

For this reason, we conclude with an example of the how. In Berlin, Transformative Justice is used to prevent child sexual abuse, as opposed to the United States, which “treats” child sexual abuse with prosecution.254 In the latter, there is neither space, nor incentive, for those who abuse to admit their behavior or take accountability because doing so will result in incarceration and a lengthier sentence, not transformation. “In contrast, Prevention Project Dunklefeld developed a program in 2005 in Berlin, Germany that offered treatment and support to anyone who stepped forward to seek help with pedophilic urges.”255 The program has since grown into a nationwide network called “Don’t Offend,” treating over 1,000 individuals to date.256 Initially, the project was funded by the government, the Volkswagon Foundation, and supported by various nonprofits.257 Now, the German public health insurance system funds the program,258 which does not report those who have sexually offended, but instead provides accessible preventative treatment through group therapy, individualized protection plans, and sometimes medication.259 The project works to distinguish between sexual desire, of which you should not be guilty, and sexual behavior, for which you are responsible.260 The same could be done in the United States. The money used to elect one progressive prosecutor alone could be transformative.

We offer the example of preventative Transformative Justice programs like “Don’t Offend” because they challenge the notion that reforming our oppressive system depends on prosecution. It does not. However, like the German program, it likely requires buy-in from the government, community organizations and private funders. Transformative Justice gives us a more powerful, effective, and inclusive solution in which to invest our time, money, and organizing power than progressive prosecution will ever be able to provide.