By John F. Pfaff

Given the undeniable role that prosecutorial discretion has played in driving mass incarceration, it makes sense to turn to them to scale it back as well. This has certainly been a central motivation of the progressive/reform prosecutor movement that started in the late 2000s. And while this movement has had some notable successes, recent years have shed some important light on the limits it faces as well. In this essay, I want to focus on how the county-ness of prosecutors hems in their power from two different directions. On the one hand, as county officials, prosecutors—at least in most major urban areas—have a large number of constituents who live in the suburbs and regularly oppose reforms … of policies that by and large do not affect them. It’s telling that many, if not most, reform prosecutors have been elected in counties that either have no suburbs at all within their borders (Philadelphia, Baltimore, St. Louis) or where the suburbs are a small fraction of the overall population (Boston, Portland). It’s clear across a wide range of cities that the core support for reform DAs comes from Black communities with high levels of violence, i.e., the communities that bear the brunt of DA decisionmaking. The more suburban voters in a county, however, the more diluted those voices become. On the other hand, as county officials, prosecutors operate at the mercy of state officials, who have a wide range of powers for clipping their wings: legislatures can give state AGs concurrent jurisdiction, for example, and in many places governors can remove elected DAs or take their cases away from them. While states are shielded from (some) federal interventions by the 10th Amendment, county officials have no such protection, as reform DAs in GOP-controlled states are increasingly beginning to discover.

(March 4, 2023). Fordham Urban Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4378322