Stephanie Holmes Didwania, Redundant Leniency and Redundant Punishment in Prosecutorial Reforms, 75 Okla. L. Rev. 25 (2022).
Abstract
The United States imprisons an enormous number of people. Imprisonment in the United States is not only mass, but also unequal by race,
sex, and class. Over the last several years, criminal reform advocates, scholars, and the public have paid greater attention to the potential of elected prosecutors to fix the massive and unequal harms our criminal legal system imposes on people. To do so, some jurisdictions have elected those who are
popularly called progressive prosecutors to enforce criminal law. I estimate that roughly 15% of U.S. residents now live in a jurisdiction with a
progressive prosecutor, although that term is difficult to define. 1 This Essay presents early evidence suggesting that progressive
prosecutorial reforms have not always been as effective as hoped at reducing incarceration. Why not? As this Essay describes, reform-minded prosecutors might fall prey to two phenomena. First, prosecutorial reforms sometimes
replicate lenient treatment that was already happening. I call this the redundant leniency problem. Second, reforms implemented by progressive prosecutors sometimes underestimate the redundant punishment that persists in many criminal legal regimes. That is, progressive policies sometimes fail to account for the ways in which different parts of our criminal legal systems reinforce each other, leaving less room than expected for the prosecutorial
reform to bring about meaningful change. And, as many scholars have pointed out, carceral systems outside the criminal legal system also work in tandem with the criminal system to perpetuate mass, unequal incarceration.
Taken together, these critiques suggest that progressive prosecutors must pursue reforms that are both systemic and far-reaching if they hope to dramatically reduce incarceration in their jurisdictions.
