Prosecutor Power #8: What's Next for Progressive Prosecutors?

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ACLU's Somil Trivedi on New Thinking podcast

I'm thrilled that career defense attorneys are now running for D.A. in major American cities. But that's just step one.

Where does the movement to elect reform-minded D.A.s go from here? That’s the question posed by the final episode in our New Thinking series on The Power of Prosecutors. The campaign has scored a series of remarkable victories across the country. As public defender Scott Hechinger suggested in the second episode of the series, the focus on changing individual leadership has been “empowering,” and a key to the movement’s success. But what are the limitations of this focus, and is there a danger of neglecting a push for more systemic change, the kind that will outlast the next election for D.A.?

Somil Trivedi and New Thinking host Matt Watkins

Somil Trivedi and New Thinking host Matt Watkins

To discuss these questions, New Thinking host Matt Watkins sat down with the ACLU’s Somil Trivedi, a staff attorney at its Trone Center for Justice and Equality and part of its Smart Justice campaign. Trivedi has a unique perspective on the power of prosecutors: he’s one of the few litigators trying to hold rogue prosecutors accountable in court. He explains why so few organizations have the resources to take that kind of work on, given the almost blanket protections prosecutors are afforded by the law.

While the gains of the progressive prosecutor movement have been impressive, Trivedi says no one should be satisfied with what has been achieved to date. “We can't just rely on the good faith of a handful of newly-elected prosecutors,” he argues. “There needs to be a full-on democratic engagement in this question.”

Resources and References

The following is a transcript of the podcast:

Matt WATKINS: Welcome to New Thinking from the Center for Court Innovation. I'm Matt Watkins. Regular listeners to the podcast will know we've had a series going for some months now on the power of prosecutors and the debate over how that power gets exercised and by whom.

Today's episode is going to be number eight in that series, and possibly the last one. I'm going to reserve the right to reopen the series as events warrant, but for now I want to use this episode to ask ourselves: where does the movement—this surprisingly successful movement to reform prosecution and elect so-called progressive-minded D.A.s—where does that movement go from here? Specifically, I want to address some of the tensions in the movement that I think that this series has helped to bring out. To help us do that, I'm joined in studio today by Somil Trivedi.

Somil is a staff attorney at the ACLU's Trone Center for Justice and Equality. He's based out of Washington, D.C. A big part of his work is trying to hold prosecutors accountable, in court, when they color outside the line, so to speak. We'll talk about where those lines currently are and where they could be, and then we'll get his thoughts on the future of the prosecutor reform movement as a whole. Somil, thanks so much for being here today.

Somil TRIVEDI: Thank you for having me, lucky number eight.

WATKINS: That's it. Maybe for starters, do you want to explain the work that you and the ACLU are doing to hold prosecutors accountable, and specifically, the work you do in court, and some of the challenges in doing that kind of work?

TRIVEDI: Within the ACLU's larger criminal justice portfolio, we’ve started a standalone prosecutorial reform project that encompasses litigation, legislation, advocacy—getting involved in D.A. electoral races for the first time ever. It's sort of an all-of-the-above approach to raising awareness about the power of prosecutors and pushing for a smarter vision of justice.

WATKINS: How long ago did that get started?

TRIVEDI: Just a couple of years ago, so it sort of tracks the rise of the progressive D.A. movement, and we're hoping to really shape it. Now, within that, there is both a proactive effort to work with progressive, and aspiring progressive, prosecutors, and support their efforts to throw away the old tough-on-crime approach and think outside the box, but there's also an accountability piece to it.

We can't be satisfied with electing a supposedly progressive D.A. here and there in four or five jurisdictions, when there are thousands of elected D.A.s across the country, many of whom, as you said, unfortunately, still color outside the lines.

That's where a lot of my work lies. I love working with the progressive prosecutors. I love bringing people along to our vision. But where they're still violating the Constitution, where they're still breaking the law to uphold the law, we need to meet them in court, and we need to not shy away from that.

I'll say that, to date, there hasn't been too much motivation to go after prosecutors in court because it's so hard. They have deeply-ingrained protections in our legal system. If you want to sue an individual prosecutor—even if that prosecutor, let's say, buried exculpatory evidence in the backyard, and that resulted in a wrongful conviction, even a wrongful execution—it's nearly impossible to sue that individual prosecutor because of a doctrine called absolute immunity. I don't mean to get all wonky on your listeners…

WATKINS: We like wonky.

TRIVEDI: Great. Well, then buckle in. The concept is that if a prosecutor is doing anything in his or her prosecutorial function, that is immune from scrutiny after the fact. Folks who are wronged by that action cannot sue later in civil court to get damages. That creates a pretty high bar for regular folks who may not have the resources to go out and get a private lawyer, who are dealing with the consequences of their criminal case, and so individual prosecutors often aren't held accountable in that way.

I'll just say, if you want to sue an entire prosecutor's office, it's also extremely difficult because of a 2008 Supreme Court ruling called Connick v. Thompson that required plaintiffs to prove “a pattern or practice” by that office. It's not good enough to show that the office violated your rights once. You have to show that they violated rights in multiple other cases, even before you get to discovery, where you might find out about those cases.

WATKINS: Which is just setting the bar enormously high.

TRIVEDI: It's making it nearly impossible. That said, it doesn't mean that you can't try. It doesn't mean that the act of trying isn't valuable.

WATKINS: Could you give us an example of a case that you've pursued trying to hold, let's say, a rogue prosecutor accountable?

TRIVEDI: Orange County, California, right now, is mired in an informants scandal, whereby prosecutors and police are strategically placing jailhouse informants in cells with pretrial defendants, folks who haven't gone to trial but have the right to counsel. They're strategically placing them in cells and having those informants, in many cases, threaten the defendants with violence and even death if they don't confess. In exchange for this threat, the informants are getting time off their sentences. They're getting straight cash payments, in some cases, hundreds of thousands of dollars to coerce these confessions.

WATKINS: So, an enormous scandal.

TRIVEDI: It's an enormous scandal, and the worst part about it is prosecutors, who ought to know better, are using those confessions in court and not telling anybody how they got them. That violates the constitution in a million ways, including the landmark decision Brady v. Maryland that requires prosecutors to disclose favorable evidence to the defense. You'd think it would be pretty important that the defense knows that when their defendant "confessed," he was actually facing the threat of a jailhouse murder.

WATKINS: How does that constitutional violation come up against the prosecutorial immunity principle?

TRIVEDI: Even when we prove that this was a constitutional violation, if we were to sue the individual prosecutors who were doing this, a court would almost certainly find that they are entitled to immunity for that practice because it was part of their overarching prosecutorial function. If we're going to sue the office, as we are, we have to prove that this pattern was not just the case in any individual criminal case but was the case across the office. That's what we're doing.

Luckily, we've got crack investigators in our ACLU affiliate in Southern California. We've got crack public defenders who have gone back through the records, and we've uncovered that this has been going on for 30 years. We have cases going as far back as the 1980s, where folks were threatened, folks were coerced into giving confessions and incriminating themselves, and that information never found the light of day. Those people got put away for long periods of time, sometimes wrongfully. Only now are we uncovering the breadth of it, and it takes litigation to fix that.

WATKINS: And deep pockets, to engage in that kind of legal battle.

TRIVEDI: That's exactly right. We're lucky to have the resources to go into places like Orange County and fight a deeply entrenched, very politically powerful D.A. there and D.A.'s office there. Most of these cases never see the light of day. Most of these defendants live with their wrongful convictions, live with the prosecutorial misconduct that happen in their cases for the rest of their lives.

That's why, in addition to litigation, we are engaged on the legislative level, we're engaged at the electoral level, because only lasting systemic regulatory change is going to make the playing field level for everybody. We can't possibly sue our way out of this. We're going to try our best, but it takes an all-of-the-above approach.

WATKINS: I just want to make sure I'm understanding this because it's kind of staggering. Let's say there wasn't any evidence of pattern or practice, but a hypothetical D.A.'s office has just engaged in this in one case where they're paying jailhouse informants to threaten the lives of defendants in order to coerce confessions out of them. If they had just done that in one isolated case, they're immune from any kind of accountability for that?

TRIVEDI: Absolutely. Unless we can prove very narrow exceptions—that they were acting in some sort of police function, not a prosecutorial function—but it would be an uphill battle. Now, public defenders in individual cases can argue for constitutional violations and maybe get reversals of convictions and things of that nature, but to systemically end the program, we've got to overcome these deeply ingrained legal barriers that judges have sanctioned over and over and over again.

Therefore, it's just led to a lack of development in the law because people are too scared to sue. Why sue when the odds are stacked against you? Luckily, the ACLU has committed resources and a dedicated project to overcoming those barriers, or at least, to go down fighting.

WATKINS: I think I know what your answer to this question is going to be, but I'll ask it anyway. It sounds, from what you're saying, like this claim that you hear in the activist community, and sometimes in the scholarly community too, that prosecutors are these unique actors in the criminal justice system in as much as they have maximum power and minimum accountability. Does that fairly sum it up?

TRIVEDI: Yes. Prosecutors make most of the most vital choices in a criminal case unilaterally. Prosecutors decide what to charge. They decide what recommendation to make for bail. They set the terms of plea negotiations, which we know end upwards of 90 percent of cases. All of that is done pretty much outside the review of a judge.

People have this vision of a prosecutor and a defense attorney going into a court and battling it out with a guy in black robes looking over the whole situation. That is not the case. Most of what happens to a criminal defendant happens because of the whims of an individual prosecutor. Yet, like I said, if any of those whims go awry, we don't really have an effective way of even finding out about them, much less holding them accountable. So that needs to change.

WATKINS: Could you talk a little bit then about how historically, or in the law, it developed that prosecutors end up unique among criminal justice actors without any checks and balances, if that's really the case?

TRIVEDI: In the early part of American history, prosecutors weren't all that different from other public officials. They were subject to suit. They were subject to constitutional review. Really, sort of in parallel with the war on drugs and alongside this tough-on-crime approach came subtle tweaks in the law from the Supreme Court on down that vested power in the prosecutor and removed checks and balances.

The concept of immunity that I mentioned earlier, that's a sort of judge-made, Supreme Court-made doctrine—that only began in 1976. For hundreds of years, the republic survived just fine, allowing prosecutors who are sued to bring the same sort of defenses that your local elected official would have. But now, it's become so much harder because we have failed to shake ourselves from this tough-on-crime approach to law enforcement, and we've built in protections that are now really tough to ratchet back.

WATKINS: It sounds to me like we're now getting into this issue of what I see as a tension in this movement to reform prosecutors, which is over this question of what to do about prosecutor power—which, really, it sounds like power is another word for discretion. I've talked to people in this room for this series like the scholar John Pfaff, the public defender Scott Hechinger, who have made an argument that prosecutors simply have too much power, it's too easy and tempting for them to abuse that power to secure convictions, and hence, we need to look at ways of circumscribing that power.

Whereas other people—and now I'm thinking of the D.A. of Philadelphia, Larry Krasner, and the former Assistant District Attorney Adam Foss who now trains new prosecutors—who say, “yes, they have a lot of power, but the system needs these actors to have that power, we need gatekeepers with that kind of discretion. We just need to put people into those positions who are going to use that power well.”

It seems to me that you can't argue both of those things at the same time. I'm sort of hung up on that tension, and I'm wondering, do you see that as a useful distinction?

TRIVEDI: Yes, and so I have the blessing and the curse of following those guys, so I'll try to break the tie. I think prosecutorial discretion isn't going anywhere. Legislators can't possibly prescribe the appropriate result in every single criminal case.

WATKINS: Which is a straw man argument against reining it in to some degree.

TRIVEDI: That's exactly right. I think just like every other profession in the United States, there is some amount of smart, targeted, data-driven regulation that can be imposed without stripping prosecutors of the necessary discretion that they have. But I also think that if prosecutors want this amount of discretion, and they think that it's necessary for their jobs, let's take a step back and set some ground rules.

One of them, we need far greater amount of transparency. If you claim to need the discretion in every single case without any guardrails, then you better be able to show the public how you're using it, so that voters can better decide whether that's the kind of use of discretion I want, so that legislators can decide whether they need to impose more regulation. I think that as a necessary first step—and some prosecutors’ offices have started embracing this, Kim Foxx in Chicago, the outgoing George Gascón in San Francisco, have voluntarily opened their offices up and shown their work.

WATKINS: But that's still not the norm even among all self-described progressive prosecutors.

TRIVEDI: That's exactly right, and we can't just rely on the good faith of a handful of newly-elected prosecutors. This needs to be a full-on democratic engagement in this question. It's great, and it's a fantastic first step to elect progressive prosecutors who espouse transparency. What's better is if we build transparency into the law. The ACLU actually is embarking on a massive transparency push. We're about to put out a report, extolling the benefits of prosecutorial transparency. We're going to push legislation in several states, and we're going to support it with litigation for those D.A.s who don't get onboard. The point is that as a baseline democratic value, we need to be able to look inside the black box that prosecutors’ offices currently are and decide for ourselves what level of discretion we want them to have.

WATKINS: I mean, okay, so transparency is one change that could be made. In some ways, that ought to be a pretty uncontroversial one. Are there other concrete steps that could be taken, we think, to more regulate the profession of prosecution, while leaving them the discretion that they need to respond to individual cases and individual circumstances?

TRIVEDI: I think even among progressive prosecutors, there's a recognition that not everything that's currently a crime is truly a crime. We talk a lot about diverting criminal defendants into other non-criminal systems like the mental health system, or housing court, or veterans court. Those are laudable efforts, but they still assume that one must enter the criminal justice system, and then be subject to, again, the whim of a prosecutor, even great prosecutors.

WATKINS: That's a good faith decision.

TRIVEDI: It's a good faith decision for a fantastically progressive prosecutor like Adam Foss to take a defendant, recognize his or her individual circumstances, and then divert them out of the criminal system. What would be better is if they never entered the criminal system in the first place.

For example, let's take a homeless man who presents with a positive drug toxicology on the street and the police are considering arresting him for theft. Just the fact of that arrest gets that person put into the criminal system, and then we just have to trust the prosecutor to take him back out. Instead, if the legislature got involved there and said, "By default, a situation like that will never enter the criminal justice system. Instead, that person will be sent to a shelter. That person will be given mental health treatment. That person will be given a shot at an education. Only if the D.A. comes in and shows cause why we need to prosecute that person will they be brought back in.”

That's a cabining of discretion. That's a shrinking of the prosecutor's role that, I think, even progressive prosecutors don't want to accept, but I think is necessary to truly rein in the size and scope of the criminal system and to put needed guardrails on prosecutorial discretion. Progressive prosecutors who are running now, I commend them that they say things like, "I promise not to prosecute marijuana crimes going forward." I think the next step might be prosecutors who run on the platform, “I will make marijuana not a crime and reduce my own power.” Now, I realize I've just suggested politicians running on shrinking their own power, but a guy can dream.

WATKINS: Is there a concern, then, that with this progressive prosecutor movement that people are investing so much faith in one individual who's going to change the system, that it takes away from the focus on advocating for more systemic change, I mean, rather than having a D.A. say, "I'm no longer going to prosecute marijuana cases," it would be more lasting to have a legislative change, for example.

TRIVEDI: I think that's right, and I think we can have both. I don't want to present a Hobson's choice. I'm thrilled at where the movement has gone in a very short time. I'm thrilled that career defense attorneys are now running for D.A. in major American cities. That's going to have a massive impact on mass incarceration and racial disparities. Don't get me wrong. But that's just step one.

It's easy to be a one-hit-wonder. I hope that the movement can then take the next step of systematizing this change in a way that will outlast any one progressive prosecutor, because we all know that backlash happens. What we need is democratic engagement at all levels—at the ballot box, at the legislature—to make sure that we are all engaged in this fight to shrink the criminal law and reduce mass incarceration at every level: prosecutorial, legislative, electoral.

WATKINS: I don't want to downplay the accomplishments of the movement and the incredible on-the-ground organizing that's got us to this place, and this series has really been focused on those remarkable accomplishments. Maybe it's just a sign of the maturation of the movement that now is the time to start asking some questions about next steps. I mean, maybe it was the necessary first step to say, "Hey, look at this position with this unbelievable amount of unregulated power. Well, what if we just grabbed hold of it?"

I mean, that is essentially the slogan of Real Justice PAC, which is this new organization that's raising money for D.A. races: “let's grab hold of this power (derived from the state) and then use it to defend marginalized communities from state power.” Obviously, there's a contradiction there to some degree, but it sounds like you're saying that we need now to push forward to a second step.

TRIVEDI: That's right. I think one can beget the other, because we all know that D.A.s and their lobbying wings wield immense power in legislatures. They shape the law. Don't believe any prosecutors who says, "I'm just enforcing it. I don't make it." D.A.s help make law, and so the more progressive D.A.s we have—going and testifying before legislatures and getting behind reform movements—the more we can systematize the changes that they're implementing currently, only individually.

WATKINS: Just to return to my wet blanket line of questioning here: If the movement stays at this first level of “let's just wrest control of the power and use it for good,” then essentially, what's happening—and this is, I guess, the argument in part of this Harvard Law Review piece that just came out that crystallized some of this for me, I think it's called ‘The Paradox of “Progressive Prosecution”’—the risk is you just end up leaving a kind of benign dictator in place.

An analogy is lots of people were comfortable when it was Barack Obama doing executive actions, suddenly not so comfortable when it's Donald Trump. If the movement doesn't push past this first stage, then it's vulnerable to the wind shifting. I mean, this is John Pfaff's worry: what happens when crime rates go up and voters change their minds about what kind of D.A. should be in place?

TRIVEDI: I think you're absolutely right to point out the analogy to the presidency. We now have virtually an imperial presidency where we might get good results, at least to me, like DACA. That's a discretionary decision by a prosecutor to not prosecute certain folks who we don't think deserve prosecution. Me, personally, I like that, but that same executive branch can now go to war without congressional approval, essentially. That's not something I like.

It shouldn't be about which ones I like and which ones I don't like. Congress, as we all know, has essentially abdicated its war-making powers. Similarly, state legislatures are now waking up to this problem, but for years, have handed the reins to prosecutors and crossed their fingers that the criminal justice system would work. What we got was policies that made us feel good: throwing the book at people and locking them away for long periods of time.

It made us feel good, but research has shown that that didn't work. It didn't make us safer. It cost us a lot of money. It destroyed communities. It was inherently racist, and it was, in many cases, unconstitutional. We need the entire electorate, we need the entire bevy of state legislatures to get onboard so that we're not putting all of our eggs in the progressive prosecutor basket; again, a basket I very much support, but there is step two, and we need to prepare for it now.

WATKINS: It occurs to me that step two is going to be a lot harder to organize people around, potentially. I mean, step one of, “here's this position of enormous power, let's grab it.” That's a clear goal, and then when you win it's very galvanizing to have the first African-American woman taking over the prosecutor's office in Chicago, Kim Foxx, to have Larry Krasner, who was someone who pursued the police for their wrongdoing aggressively, take over as D.A. in Philadelphia.

Those are great mobilizing victories but harder to then say, "Now, we've got to engage in the tougher slog of legislative change and better regulating prosecutor conduct." I know you're here in New York because you were just at a meeting with your colleagues at the ACLU about planning priorities. Is this “step two” idea of the prosecutor reform movement something that's on the agenda for you guys? Do you have a sense of what that would look like?

TRIVEDI: Absolutely. What most people tend not to realize is that criminal justice is a very state and local issue. The First Step Act at the national level was fantastic, but under 20 percent of prisoners are in federal prison. This takes a state-by-state, meticulous, on-the-ground approach, which is what our campaign for Smart Justice does. It goes into each state, tries to figure out the largest drivers of mass incarceration, the largest drivers of the racial disparities in the system, and then craft legislation and advocacy around local needs.

That is tough. It takes local folks who are really invested in the fight and can think, not just about the next legislative session, but three legislative sessions down the road. We might place this transparency bill in a 2020 session, and we may not build the support to get it until 2024, but that's the hard work of organizing. Let's not forget that we're going to be in the courts as well. Lawsuits against prosecutors will take years to come to fruition, but we need to be willing to commit the time and the resources and the intellectual rigor to all of these efforts for the long haul if we're going to make that sort of lasting change.

WATKINS: Well, Somil, it's been great meeting you in person today, and I just want to thank you so much for, as I say, provisionally wrapping up this prosecutor power series. Thank you so much.

TRIVEDI: Thank you for having me, and thanks for the work that CCI is doing in this area.

WATKINS: Well, thanks very much. I've been speaking with Somil Trivedi. Somil is a staff attorney at the ACLU's Trone Center for Justice and Equality. For more information about this episode and all of the previous episodes in our prosecutor power series, visit our website, that's courtinnovation.org/newthinking. Technical support today provided as ever by the avuncular Bill Harkins. Our director of design is Samiha Meah. Theme music is by Michael Aaron at quivernyc.com, and our show's founder is Rob Wolf.

Please help us spread the word at your office water cooler or via social media, if that's something you do. This has been New Thinking from the Center for Court Innovation. I'm Matt Watkins. Thanks for listening.