President Trump recently said that he doesn’t care what word is used to describe his proposed border wall, even going so far to say you can call it “peaches.” But of course, words do matter. So what should we call a prosecutor who seeks justice rather than as many convictions and the most severe sentences in every case? Increasingly, we are told that this describes a “progressive prosecutor,” but it could just as easily describe a “conservative prosecutor.”
At the heart of conservative philosophy is the primacy of the individual and the family in society, with government playing a secondary role designed to safeguard liberty and serve the people. The role of prosecutors is to stand in place of the victims of crime and the public in deciding which cases to pursue and what would constitute a just sentence.
As conservatives, we insist upon limited government, so surely pursuing the sentence that exacts the greatest imposition on liberty and the greatest cost to taxpayers cannot always be the right answer.{mosads}
Perhaps most importantly, the prosecutor must take every reasonable step to ensure the person they charge is, in fact, the guilty party. On that score, a Texas man named Michael Morton who spent nearly 25 years in Texas prison for a crime he didn’t commit is urging New York lawmakers to adopt a version of the Michael Morton Act, which became law in Texas in 2015. Morton was eventually exonerated after prosecutors were forced to divulge a bloody bandana that a DNA test demonstrated was not his blood. This legislation ensures the defense has access to relevant information in possession of the prosecutor, especially exculpatory material, though with appropriate redactions to protect victims. A supportive Jan. 15, 2019 New York Times editorial was predictably entitled, “How to Make New York as Progressive as Texas on Criminal Justice.”
Just imagine if the issue was instead local property taxes and the question was whether the taxpayer could have access to the information, such as comparable listings, that the appraisal district used to determine that their property had gone up in value. This would likely be viewed by many as “conservative” legislation.
Of course, both are good policies, but it’s so much more important — from a conservative perspective —to protect citizens from having their life and liberty, rather than their tax dollars, wrongly taken by government.
Are transparency and accountability in government also progressive — but not conservative — priorities? Shortly after being elected in March 2018, Cook County State’s Attorney Kim Foxx, who is hailed as a “progressive prosecutor,” released an unprecedented amount of data on the prosecutions brought by her office. For years, as conservatives, we have sought detailed data on how large government systems, such as public schools and even the post office, spend their money and perform their missions, so once again this is as fundamentally conservative as it is progressive.
More recently, we have learned that a new approach to bail by Philadelphia District Attorney Larry Krasner, who been labeled a “progressive prosecutor” perhaps more than any other, has achieved its intended effect of limiting pretrial detention without increasing the rate at which people flee justice.{mossecondads}
After Krasner stopped seeking cash bail in most cases involving low-level, nonviolent offenses following an individualized assessment, some 22 percent fewer legally innocent people spent at least a night in jail prior to their trial. Contrary to critics’ fears, the rates at which these defendants showed up to court and stayed out of trouble remained constant. These findings come from a February 2019 study by Professor Aurelie Ouss of the University of Pennsylvania and Professor Megan Stevenson, who (perhaps ironically, given Krasner’s liberal politics) is a professor at the Antonin Scalia Law School.
Krasner recognized that for low-level offenses that are likely to result in a non-custodial sentence, it is irrational for the defendant to flee, which would typically mean being apprehended and facing possible felony charges and prison time for being a fugitive from justice.
Even as policymakers may disagree over whether there is a role for some defendants charged with higher level offenses and posing a greater risk to post funds or property to secure their appearance, Krasner took a common-sense step that has resulted in more liberty and a lighter burden on taxpayers.
Progressivism in the broader political debate typically signifies increasing the size and scope of government relative to the individual, whereas as conservatives we seek to limit government power. Policies that protect the innocent from conviction through fair discovery in criminal cases, provide for transparency in prosecutorial data to facilitate public accountability, and impose the least restrictive pretrial conditions necessary to ensure return to court and public safety all contribute to restraining the power of government.
Such reforms do not amount to conservatives agreeing to liberal policies, but rather vindicating our core principles of limited government and individual liberty. We can call it “peaches” or anything else, but we should be hungry for more.
Marc Levin is the vice president of criminal justice and Right on Crime at the Texas Public Policy Foundation. Follow Marc on Twitter @MarcALevin