"Punishment is never fated to 'succeed' to any great degree." A society that "intends to promote disciplined conduct and social control will concentrate not upon punishing offenders but upon socializing and integrating young citizens."
Such was the optimistic expression of David Garland, the NYU professor who started the abolition of punishment movement back in 1990.
In the subsequent quarter century, however, the abolitionist agenda never moved beyond the radical elite. Then, in just the last few years, there came a strategic shift to demand only the abolition of prisons. The goal is to "build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems."
Calling to abolish prisons is practically the same as advocating for an end of punishment altogether—it just avoids being explicit about it.
But both human experience and empirical studies make clear that to ensure serious wrongdoing is punished is essential to an ordered society. Every attempt at a punishment-free society has collapsed, even when the most well-intentioned idealists attempt it in experimental communes. And empirical studies make clear that ordinary people across all demographics share a deeply ingrained intuition that serious wrongdoing should be punished. The imposition of punishment on wrongdoers is so important to people that even uninvolved observers of wrongdoing, who have no connection with the parties involved, will voluntarily sacrifice their own personal interests to see deserved punishment imposed.
It is no surprise, then, that the movement for the abolition of punishment or prisons has struggled.
Enter the progressive prosecutor movement, which has been able to move forward toward that anti-punishment goal through broad decriminalization policies and increased declinations to prosecute even serious cases.
For example, consider how Philadelphia has fared in the years since progressive prosecutor Larry Krasner was elected in 2017. Krasner has filed the fewest cases in his city's modern history and reduced sentencings by an astounding 70 percent. Meanwhile, homicides are skyrocketing, up from 315 in 2017 to 561 in 2021—an increase of 78 percent.
Similar patterns of decreased prosecution during significant increases in felonies have been observed in a wide range of progressive-led jurisdictions. In Dallas, guilty verdicts for felonies decreased by 30 percent. In Chicago, progressive DA Kim Foxx dismissed all charges against nearly 30 percent of all felony suspects, while the city suffered a 50 percent increase in homicides in 2020, followed by a continuing increase in 2021.
Progressive prosecutors have also routinely decriminalized entire classes of offenses. San Francisco's Chesa Boudin did not secure a single conviction for dealing fentanyl during 2021, even though nearly 500 people died of drug overdose in the city during the preceding year.
Even amid high levels of violent crime, Manhattan District Attorney Alvin Bragg has announced his intention to downgrade felony charges in cases including armed robberies and drug dealing, and that he will "not seek carceral sentence other than for homicide" or "class B violent felony in which a deadly weapon causes serious injury, domestic violence felonies," with few exceptions.
Virginia Commonwealth Attorney Buta Biberaj believes most domestic abuse victims should seek help through social services instead of pursuing a criminal complaint—classic abolitionist thinking. She brought only 8 percent of domestic violence cases to trial. Unsurprisingly, her views infuriated many victims in her county. When in 2022 a woman was beaten to death by her husband, who had previously assaulted her and been released, many blamed Biberaj's lax attitude for the death.
None of these efforts have changed the public's attitudes about punishment. A recent poll of likely 2024 general election voters found that a whopping 79 percent favored tougher sentences for violent offenders.
The strategic appeal of the progressive prosecutor trend is that it can cloak the move toward abolishing punishment as simply the exercise of prosecutorial discretion. But what progressive prosecutors are doing is not prosecutorial discretion as it has always been—the often-needed ability to take account of special circumstances that may exist in individual cases. Rather, it is a usurpation of the legislative prerogative to define what is and is not a criminal act. In every one of the instances described above, the progressive prosecutor has effectively vetoed a criminalization decision made through democratic action—a bill passed by the state legislature and signed into law by the governor.
Exercising "prosecutorial discretion" beyond individual cases in order to decriminalize conduct that a democratically elected legislature has criminalized is to abuse one's discretion. If progressives believe any given conduct should be decriminalized, they should do what any other group must do: have the legislature revise the statute. Or, at the very least, have the legislature adopt a rule that authorizes individual cities to make their own criminalization decisions. Of course, they might not like what some parts of their state would do when delegated the authority to decriminalize—or criminalize.
Paul H. Robinson is the Colin S. Diver Professor of Law at the University of Pennsylvania and, most recently, the author of American Criminal Law: Its People, Principles, and Evolution (Routledge 2023). Joshua Crawford is the Director of Criminal Justice Initiatives at the Georgia Center for Opportunity and a Young Voices Contributor.
The views expressed in this article are the writers' own.
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