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Introduction
Progressive prosecutors are on the rise. Buoyed by dramatic changes in public opinion toward criminal justice reform, ambitious primary challengers, and air support from big political donors, theyve defeated entrenched, punitive prosecutors in counties and districts across the county and have largely delivered on their campaign promises. But winning is only half the battle-once in office, they continue to face opposition from police unions, other government actors, and even dissent within their own offices.
This Article focuses on a new, and yet tragically underdiscussed, challenge that progressive prosecutors face: prosecutors associations. These associations, which function as a hybrid professional organization-quasigovemment entity, play a large role in the development of criminal justice policy. They lobby the legislature, are statutorily endowed with policymaking authority, exert influence in judicial and referenda elections, file amicus briefs, and provide training and other forms of administrative support to prosecutors offices. In other words, prosecutors associations matter.
Given the history of how prosecutors associations affect criminal justice policy, it is perhaps unsurprising that so many progressive, dccarccral prosecutors-or progressive, decarceral candidates in prosecutorial elections-are skeptical about serving as active members of their state associations. Despite this skepticism, only a few elected prosecutors, most prominently Philadelphia District Attorney Larry Krasner, have actually quit these associations.
Others, including a bipartisan alliance of progressive prosecutors in California, some recently elected prosecutors in Virginia, and several unsuccessful candidates in Pennsylvania, have suggested an alternative way forward: forming their own progressive prosecutors associations as a counterprogramming effort. As conceptualized, these counter-associations would do the exact same things that the existing associations do, but with a thumb on the scale on the opposite side-for decarceral policies instead of tough-on-crime ones. Given the new nature of these proposals, theyve generated little academic or activist discussion, which this Article attempts to remedy.
It begins in Part I with relevant background information about prosecutors associations. It briefly recounts their organizational histories, though given the paucity of historical records kept by the associations and their relative anonymity, this effort is necessarily limited. It then addresses the statutory framework in which prosecutors associations operate, by discussing the relationships between private and public prosecutors associations and the state-sanctioned policymaking authority that both associations have.
Part II then considers the external, policymaking role that...