Progressive prosecutors have a math problem. Reform-oriented District Attorneys like Rachel Rollins (Boston), Larry Krasner (Philadelphia), and Kim Foxx (Chicago) ran and won on platforms of ending mass incarceration. And yet, they have no chance of achieving that goal with their current policies.

The United States incarcerates 2.3 million individuals. That is approximately 698 out of every 100,000 residents, or approximately 0.7% of the total population. The only countries with incarceration rates even close are relatively poor countries with authoritarian regimes: El Salvador, Turkmenistan, Cuba, and Thailand incarcerate 614, 583, 510, and 483 residents per 100,000, respectively.

Reducing the United States’ incarcerated population to levels comparable with other economically advanced democracies would require at least a five-fold reduction—to bring the United States in line with the United Kingdom—and as much as ten-fold reduction to achieve the incarceration rates in Germany, the Netherlands, Japan, and Sweden.

Progressive prosecutors’ math problem stems from a discrepancy between the targets of their reforms and the makeup of the United States’ incarcerated population. Progressive prosecutors’ policies have focused almost exclusively on reducing the severity of punishments for drug crimes, technical violations of supervised release, poverty crimes like retail theft, and public order violations like prostitution and trespassing. These policies affect only the most sympathetic criminal defendants, a strategy described as targeting politically “low-hanging fruit.” At the same time, their reforms have all but ignored people charged with violent offenses and other serious crimes. [1]

A five-fold reduction in incarceration is impossible with that strategy. Defendants charged with or convicted of violent crimes make up more than 46% of the incarcerated population. Those charged with or convicted of “serious” offenses, including violent as well as certain non-violent offenses like burglary and weapons possession, collectively make up 57%.

The math problem is straightforward. Ending mass incarceration would involve a five- to ten-fold reduction in incarceration. However, current progressive prosecutors’ policies exclude most people incarcerated for violent or serious offenses: An 80% reduction is impossible when over half of the incarcerated population is off the table from the start.

Ending the shameful era of mass incarceration does not require eliminating prisons (though a movement that envisions prison abolition is growing). But it will require a massive reduction in the number of people sent to prison and the sentence lengths of those who go. A truly anti-mass incarceration prosecutor must decrease incarceration for practically every defendant, including the least sympathetic.

Conventional wisdom says that this is an insurmountable political hurdle. How could a candidate for chief law enforcement officer win if they support leniency for people convicted of sex crimes, violent crimes, and those with lengthy criminal records? Do not despair quite yet.

For decades, there was broad consensus that success as an elected prosecutor required a “tough on crime” platform: maximally harsh sentences, minimal sympathy for defendants, and unwavering support for the police. That supposed truism crumbled quickly once it was challenged. The current wave of progressive prosecutors defied a decades-old model. Instead of “lock ’em up,” they ran, and won, on platforms of dropping charges, reducing the prison population, and curtailing prosecutorial misconduct.

Frustration with the current wave of progressive prosecutors is understandable. They promised an end to mass incarceration, and they have come up short. In some cases, they have not delivered on even their more limited campaign promises.

Their electoral success invites another wave of reform prosecutors to challenge the conventional wisdom that popular support for criminal justice reform will not extend to people convicted of serious and violent crimes. That assumption is perilously untested. I look forward to the truly anti-mass incarceration prosecutors who shatter it.









[1] There are several exceptions worth noting. Many progressive prosecutors vowed never to pursue the death penalty. Angela J. Davis, Reimagining Prosecution: A Growing Progressive Movement, 3 UCLA Crim. Just. L. Rev. 1, 11, 14, 18 (2019). Many offices have opened conviction integrity units to mitigate wrongful convictions or unconstitutional juvenile life without parole sentences. Id. at 10, 14, 19; Benjamin Levin, Imagining the Progressive Prosecutor, Minn. L. Rev. (forthcoming) 15–16. The Bronx and Brooklyn District Attorneys’ Offices have partnered with the non-profit organization Common Justice to facilitate restorative justice circles in lieu of traditional prosecution for a limited number of defendants. Eligible cases include aggravated assaults and armed robberies. Miriam Krinsky & Taylor Phares, Accountability and Repair: The Prosecutor’s Case for Restorative Justice, 64 N.Y.L. Sch. L. Rev. 32, 41–42 (2019). Still, these policies fall well short of achieving an agenda of the likes needed to put a serious dent in mass incarceration.