Criminal Justice

Some Prosecutors Are Daring To Challenge the 'Tough on Crime' Status Quo

They're mostly progressives, but their ideas about limiting government power and respecting individual rights sound almost conservative.


One need only look back at decades of news reports about the behavior of various California district attorneys and attorneys general to come to a sobering conclusion. Most people will shrug at almost anything from these powerful "top cops"—ranging from coddling misbehaving cops to seeking unjust sentences to wasting outrageous amounts of tax dollars.

Now, finally, some people have reached their limits.

Conservatives in particular—the folks who warn about big-spending government and officials who abuse our God-given rights—are apoplectic after voters elected a number of "progressive prosecutors," who have the audacity to implement policies they touted on the campaign trail.

"For decades, prosecutors have won elections by championing tough-on-crime policies that empowered them to use their discretion to levy harsh punishments," the Center for American Progress explained. As a result, the United States has one of the highest incarceration rates in the world—and a justice system that's known for brutal prisons and is immune to change.

By contrast, this new breed of prosecutors has "pursued a range of policies, including using diversion and treatment programs as alternatives to drug-related crimes, refusing to prosecute cases brought by officers with a history of dishonesty or unreliability, and reducing prosecutions of lower-level crimes," the progressive-leaning group added.

Their basic stated ideas—holding officials accountable, trying alternatives that might achieve better results, making the system more respectful of individual rights, doing more than throwing taxpayer money at the problem—sound almost conservative. Some of these concepts also echo those offered by prominent conservative justice-reform groups.

This Editorial Board recently interviewed Los Angeles County's district attorney, George Gascón, who already is facing a recall election only six months after assuming control of that sprawling prosecutorial office. Funded by a Republican donor, the recall effort blames Gascón for rising crime and accuses him of promoting a "radical, pro-criminal agenda."

During our chat, Gascón mentioned his talk in Austin, Texas, to the conservative group Right on Crime, which includes such, er, radical members as Reagan administration Attorney General Ed Meese and former GOP Speaker of the House Newt Gingrich. Gascón bemoaned the increasing partisanship of the criminal-justice reform issue, with Republicans settling into their same old "law and order" stance.

This is from Right on Crime's statement of principles: "As with any government program, the criminal justice system must be transparent and include performance measures that hold it accountable for its results in protecting the public, lowering crime rates, reducing re-offending, collecting victim restitution and conserving taxpayers' money."

Within California's district attorney offices and the state Department of Justice, there's virtually no focus on those points—regardless of the political affiliation of the person in charge. Despite the state's image as a progressive haven, it long has embraced some of the most retrograde crime and police-accountability policies, thanks largely to the power of reform-resistant unions.

Two of California's most recent Democratic attorneys general, Xavier Becerra (now secretary of Health and Human Services) and Kamala Harris (now vice president), essentially were tools of the police unions and fought reform efforts, despite some of their recent Road to Damascus rhetoric. The current system is a bipartisan edifice, so I agree with Gascon that it would be nice to see both parties work constructively on the issue.

I like to mention the 1998 governor's campaign, when Democrat Gray Davis faced Republican Attorney General Dan Lungren. During a televised debate, Davis said "on issues of law and order, he considered Singapore—a country that executes drug offenders—'a good starting point,'" The New York Times reported. Davis was not going to let Lungren outflank him on the right on crime.

A lot has changed. Violent crime had been rising in the 1980s and early 1990s but started to fall even before voters approved tough-on-crime ballot measures. Crime has since fallen to 1960s levels but has been moving in an upward direction. The question is whether we can debate the issue without Davis-era histrionics. Few criminologists believe there's a simple correlation between crime rates and sentencing policies.

The nature of government always is the same, whether we're talking about the Internal Revenue Service or your local district attorney's office. There's nothing that bureaucrats hate worse than change. No wonder a district attorney's association, police unions, and the criminal-justice bureaucracy feel threatened now that the pendulum is swinging in the other direction.

Progressive prosecutors are a varied bunch. Some, such as San Francisco's Chesa Boudin, strike me as hard-core leftists with a sweeping societal agenda that downplays the public's serious concern about violent crime. Others, such as former beat cop and police chief Gascon, take crime problems seriously—but are looking at alternate approaches to sentencing, re-entry programs, policing, and public-safety budgeting.

I'll reserve judgment on progressive prosecutors' specific reforms until there's time to analyze how they are working, but I'm glad that they've sparked a broader criminal-justice discussion.

This column was first published in The Orange County Register.