Here & Now

“Progressive Prosecutors” and the Criminal Justice System

Frederica Freyberg:

District attorneys wield a lot of power in their discretion on charging decisions and are regarded even as holding a quasi-judicial standing. So what if they decide to change it up, try to change the criminal justice system using their discretion? There is a movement of progressive prosecutors across the country, notably like the Philly DA, who is the subject of PBS series by the same name. Tonight we learn more about progressive prosecutors from the director of the UW Law School Prosecution Project and former prosecutor himself, Lanny Glinberg. Thanks for being here.

Lanny Glinberg:

Thank you for having me.

Frederica Freyberg:

What does it mean to be a progressive prosecutor?

Lanny Glinberg:

Well, there’s no particular credential to be a progressive prosecutor. But the philosophy of progressive prosecutors is that they want to wield their prosecutorial power, which is substantial, the most powerful actor in the criminal justice system. They want to wield that discretion, that prosecutorial power, both to serve the interest of public safety but as well to address real problems we have in the criminal justice system, the problems of mass incarceration. This country incarcerates more people than any other country. That burden disproportionately falls on people that are underrepresented, that are poor, people of color, and the progressive prosecutors want to wield their authority to address those problems as well as of course the main function of a prosecutor, to address public safety, to ensure public safety.

Frederica Freyberg:

What’s an example of how they would proceed in a particular case in a progressive way?

Lanny Glinberg:

Well, by being mindful of the consequences of engaging in a prosecution. By that I mean the traditional approach to prosecution, more traditional, been dominate over four decades, is simply to charge a crime, seek conviction and confine somebody. Confine somebody that committed a crime as a means of addressing public safety. In reality, that has not served us so well. As I mentioned, we have substantial numbers of those incarcerated and if incarceration and confinement equal public safety, we would have the safest country in the world. And we don’t. So, in an individual case, a prosecutor needs to be attentive to not only just the charging and conviction and confinement, but what are the other costs of commencing a crime, of seeking a conviction. Not just the monetary cost of confining somebody, but there are real social costs as well. And being attentive to those social costs. Being mindful about the type of penalty that a prosecutor seeks or whether to issue charges in the first place. What will the consequences on the broader community be on the individual, their connection to family, work, stable housing, those are the things that the research tells us results in individuals desisting from crime, not just confinement. So, focusing on that and mindful of the consequences on other factors, to bring about public safety.

Frederica Freyberg:

Is there a pushback on this kind of method or sensibility on the part of the more traditional prosecutors?

Lanny Glinberg:

Indeed there is resistance. It varies from community to community. Prosecutors, of course, as you reported just a few moments ago are elected county by county. Local sensibilities affect the priorities of prosecution so that resistance may be different in different places. But indeed generally, or to some of the progressive prosecutors, there is some resistance. It can come from a number of places. One, prosecutors themselves. It is risky to look at a new model of prosecution or to be more sensitive to the sort of things that I described. Taking a thoughtful and nuanced view of addressing public safety as a political matter has not been the approach. Political — what’s been politically safe is to run against crime, run against criminals. So, there is political risk associated with it. As well, resistance can come from any number of other actors within the institutions of the criminal justice system, whether it be the bench, other prosecutors, police or voters even because as I said, these are elective offices and there are political consequences for these decisions.

Frederica Freyberg:

We know Philadelphia’s DA, Larry Krasner, is a progressive prosecutor who pledged to end mass incarceration. Are there similar prosecutors across Wisconsin? Is it kind of a growing movement in states like Wisconsin?

Lanny Glinberg:

I think it’s a growing movement in a lot of places and there is a spectrum of prosecutors from what I would describe as very traditional, focused on charging, convicting and confining to the type of progressive model that we are talking about now. There are some that are, and this is independent of party, across the state, that have a more reform-minded approach, a more reform-minded or progressive mentality. I want to be careful to say I’m not using the term progressive in the political sense, but in the sense of a new approach reviewing or revisiting what the priorities of prosecution are. Certainly there are some in this state. We have the spectrum from traditional to more progressive.

Frederica Freyberg:

All right, we need to leave it there. Really fascinating stuff. Thanks very much, Lanny Glinberg.

Lanny Glinberg:

Thank you.