UCLA Criminal Justice Law Review

Prosecutors are the most powerful officials in the criminal justice system. At least ninety percent of all criminal cases are prosecuted on the state level, and in all but five jurisdictions, the chief prosecutor (also known as the district attorney) is an elected official. Most district attorneys run unopposed and serve for decades. However, in recent years, a number of incumbent district attorneys have been challenged and defeated by individuals who pledged to use their power and discretion to reduce the incarceration rate and eliminate unwarranted racial disparities in the criminal justice system. These so-called “progressive prosecutors” have enjoyed some modest successes, but many have faced challenges—from within and outside of their offices. This Article discusses some of these successes and challenges and proposes guidelines to assist newly-elected district attorneys who are committed to criminal justice reform.

Over the past several years, we have seen significant criminal justice reform efforts on a national level, the most sweeping of which have taken place in California. The impetus behind these changes has been the increased widespread understanding of the drivers of criminogenic behavior coupled with intentional and targeted efforts by lawmakers and the criminal justice system to attempt to reduce recidivism by addressing those drivers. At a local level, Los Angeles County has led the way in these efforts with the implementation of various collaborative programs and initiatives by the court system, local government and law enforcement. By addressing criminogenic drivers, as opposed to focusing on retribution and incapacitation, the region has become smarter on crime. This approach facilitates both rehabilitation for the individual who committeda crime and restoration for the victims, thereby significantly and effectively reducing recidivism. In other words, this approach accomplishes the ultimate goal of improving public safety.

Our inability to have empathy and seek changes that support incarcerated people beyond those with nonviolent crimes has the unintended consequence of creating more violence, less safety, and instability for individuals and our communities. This is particularly true for people marginalized by race, ethnicity, class, age, ability, gender, sexuality, religion, and immigration status. Strategies grounded in theories of anti-oppression and prison abolition may help legal and policy leaders work more closely with people on the inside of prisons allowing us to address the root causes of incarceration, find forms of accountability that do not rely on prisons, move beyond gender binaries, and uplift entire communities.

A fundamental principle of organizational management is that you measure the things that matter. In the field of law enforcement, the most routinely and intensely tracked metrics often relate to reported crime rates. Data-driven management systems like CompStat have a huge influence over law enforcement decisions about resource deployment, patrol assignments, performance evaluations, and promotions. Potential harms of racially disparate or unnecessarily burdensome policing, on the other hand, are rarely analyzed as routinely or intensely. As a result, evaluation of law enforcement policies and practices can often become a benefit-only cost-benefit analysis: Decisions about police intervention are made based on anticipated benefits of preventing crimes and catching offenders with little regard for the direct and indirect costs of police intervention to individuals and communities.

Substance use disorder is a recognized medical condition that describes a compulsive use of a substance despite negative consequences. When the substance of abuse is also an illegal drug, a conflict arises between treating the patient through the most effective medically proven methods and enforcing state laws prohibiting personal possession or use of that substance. What really happens to people prosecuted for possession of small amounts of illegal drugs? What happens when the limited resources of a local government are spent on harm-reduction approaches to helping people with addiction, rather than arresting, jailing and prosecuting them in a court without treatment and support resources?

King County (WA) has embarked on the policy path of declining to prosecute most cases of possession of small amounts of illegal controlled substances and instead investing money in building connections between case managers and people with substance use disorder delivered through the model of the Law Enforcement Assisted Diversion (LEAD) program.

This Article will explore the legal, medical and ethical issues involved in treating substance use disorder as a disease instead of as a crime.