Criminal justice reform advocates have long rallied against the criminalization of poverty in the United States. It’s well established that criminal justice involvement disproportionately affects communities of color and low-income individuals. This is unsurprising given the historic tightening of the welfare state, coupled with the unprecedented expansion of the penal state over the same period. While some attempt to counteract these twin developments through legislation and grassroots organizing, another actor is taking stock: the local prosecutor.
As plea bargaining began supplanting trials over the past half century, the power of the local prosecutor has grown; some prosecutors have embraced this newfound power to ends of combatting the criminalization of poverty. Many progressive prosecutors have defined their roles and prosecutorial philosophies in terms of holistic justice, recognizing that some activities labeled criminal are better understood as products of poverty, unaddressed mental health needs, or addiction. This inspires efforts to decarcerate — the main platform on which progressive prosecutors run. Some, however, have taken that holistic vision further — by enacting policies and programs aimed at redressing the criminalization of poverty, in step with the social work model of public defense. In so doing, they have focused on addressing the defendant’s whole welfare, not just her alleged criminal activity. Deliberately or incidentally, these prosecutors have utilized their newly expanded powers to counteract the contraction of the welfare state through welfarist rehabilitation. This Note terms this nascent phenomenon — by which prosecutors affirmatively treat defendants holistically and center their welfare as a primary goal of the prosecution — “welfarist prosecution.” It argues that, despite institutional tensions in prosecutors undertaking this role, welfarist prosecutors are nonetheless mitigating the criminalization of poverty. Unless and until the U.S. social safety net achieves serious structural and legislative reforms, this is a welcome intermediate development.
Part I chronicles this historical development, as the United States’s primary institutional body for redressing social problems shifted from a welfare state to a penal state. The welfare state transformed to a more restrictive work-based system, with greater procedural hurdles and lesser access to social services for the criminal justice–involved1 especially. Concurrently, the American criminal justice system expanded dramatically, and the power of prosecutors rose commensurately. Enter progressive prosecution, a movement that aims to pursue justice in a society with mass incarceration and a relatively weak social safety net.
Part II explores the ways in which prosecutors have institutionalized the welfarist prosecution model — and in so doing, deliberately or incidentally, have helped counteract the contraction of the American welfare state and the criminalization of poverty. This mode of prosecuting is evidenced in mission statements and philosophical orientations, as well as in welfarist policies and programs — including, for example, efforts to secure employment for defendants, advocacy against money bail and monetary sanctions, comprehensive diversionary programming, and use of specialty courts to advance the holistic care of marginalized populations. Welfarist prosecutors have been functionally “filling in” for at least some of the lost social services made inaccessible to the criminal justice–involved by the shrunken welfare state.
Finally, Part III examines the merits of this development. Housing responsibility for holistic, welfarist care of the criminal justice–involved within the prosecutorial arm of the state may be justified as a logical extension of the public defense social work model. While the translation from the defense world to the prosecutorial context should not be taken for granted, given tensions respecting prosecutors’ role within the adversarial legal system, it nonetheless comports with their role as ministers of justice. And even if the current system of welfarist prosecution is inherently conflicted, it is nonetheless a mitigatory step in the right direction — and certainly preferred to the criminal justice–involved receiving no services, from the penal or welfare states alike.
I. From a Welfare State to a Penal State
This Part explores the twin sociohistorical developments of a contracting welfare state in the United States and the coinciding expansion of the criminal justice system over the past fifty years, setting the stage for reformist prosecutors’ arrival.
A. From a Needs-Based to a Work-Based Welfare State
Over the past several decades, the American welfare system has, in many ways, substantially weakened.2 The Personal Responsibility and Work Opportunity Reconciliation Act of 19963 (PRWORA), termed “welfare reform,” “ended welfare as we [had known] it” for the previous half century.4 PRWORA replaced the more effective direct cash assistance provided by Aid to Families with Dependent Children (AFDC) with the more restrictive cash welfare program, Temporary Assistance for Needy Families (TANF).5 While changes to the “food stamps” program — today, the Supplemental Nutrition Assistance Program (SNAP) — compensated for some of the loss in aid from TANF over this period,6 TANF (a state block grant program) nonetheless dramatically shrunk aid available to low-income families, due to its time limits and stringent eligibility and work requirements.7
Indeed, one of the most impactful antipoverty programs in the United States today isn’t a “welfare program” at all, but a tax credit administered through the Internal Revenue Service — the Earned Income Tax Credit (EITC).8 As the EITC (begun in 1975) expanded significantly in the 1990s, so too did constraints limiting its use.9 Taken together, the eligibility and term-time constraints expressed in TANF, the EITC, and SNAP fundamentally shifted the U.S. social safety net from a needs-based to a work-based model, cutting caseloads and shrinking the net.10
Moreover, welfare recipients are heavily policed by eligibility and participation requirements. Today’s work-based social safety net is arguably “first and foremost intended to deter welfare use, to guard against misuse, and to punish welfare cheating” — treating intended beneficiaries as “latent criminals . . . [,] presumptive liars, cheaters, and thieves.”11 Applicants and recipients of aid are routinely regulated, surveilled, and punished for failing to comply with confusing and complicated requirements.12 Some states mandate drug testing.13 Others limit aid by imposing monetary sanctions on those who fail to fulfill welfare-to-work requirements, which may include, for no fault of one’s own, working fewer hours than required or failing to attend a caseworker meeting despite good reason.14 Welfare fraud investigations are routine and can result in civil or criminal penalties.15 As a result, today’s social safety net has become less robust and more punitive. Exacerbating the problem, the U.S. minimum wage has stagnated,16 student loan debt soars,17 and twenty-eight million U.S. adults lack health insurance.18
In addition to curtailing aid eligibility generally, this transition has especially harmed the criminal justice–involved. For example, individuals with outstanding felony warrants or probation or parole violations are ineligible for benefits — among them TANF, SNAP, Supplemental Security Income (SSI), and housing assistance — turning “the welfare system . . . [into] an extension of the criminal justice system.”19 Twenty-five states impose a (full or partial) drug felony lifetime ban, by which adults with drug felony convictions are prohibited from receiving aid, including TANF and SNAP benefits.20 Individuals with criminal arrests or convictions may be barred from Section 8 housing21 or denied other benefits, including TANF, SNAP, and educational loans.22 Having a criminal record is significantly associated with diminished employment opportunities23 — which matters a great deal in a “welfare-to-work” system predicated on stringent employment requirements for applicants and beneficiaries alike. The welfare state has become increasingly inaccessible for the criminal justice–involved.
B. The Expansion of the American Penal State
Over the same period, the criminal justice system has swelled, in both the number of individuals whose lives it touches and the resources it consumes. The U.S. criminal justice population has ballooned 500% over the last forty years, with roughly two million people currently held in the nation’s jails and prisons24 and over eight million “under some form of state control, including jail, prison, probation, parole, community sanctions, drug courts, [and] immigrant detention.”25 War on Drugs–era policies led to a tenfold increase in incarceration for drug offenses from 1980 (40,900 individuals) to 2019 (430,926 individuals).26 At the same time, mandatory minimums increased the average prison sentence for federal drug offenses nearly threefold: from twenty-two months in 1986 to sixty-two months by 2004.27 Lifelong sentences, too, have “nearly quintupled since 1984.”28 The impact of punitive sentencing guidelines and penal codes has been disproportionately borne by Black and Latino men, who are, respectively, six and two-and-a-half times as likely as white men to be incarcerated.29 Overall, “[o]ne in thirty-seven U.S. adults ha[s] spent time in state or federal prisons,”30 and sixty percent of those currently in prison are people of color.31 At the household level, one in twenty-eight minor children — over 2.7 million — has a parent currently in jail or prison.32
State correctional spending has likewise expanded dramatically.33 Whereas total state spending thereon was $6.7 billion 1985, it was $56.6 billion in 2019 — a nearly tenfold increase in less than forty years.34 Costs to run the criminal justice system have skyrocketed, and low-income individuals have borne much of the cost.35 Legal aid budgets have declined, while the number of arrests and convictions has risen, leaving indigent defendants with a vanishingly meaningful right to counsel.36
At the same time, fines and fees have risen, further exacerbating the criminalization of poverty.37 Those convicted of felonies tend to have higher unemployment rates, lower levels of education, and lower incomes than do nondefendants; per one nationwide study, in the year prior to arrest “the earned annual income of two-thirds of jail inmates was under $12,000.”38 Indeed, criminologists have argued that one’s probability of being arrested is more greatly associated with characteristics of one’s society (for example, whether one grew up in the War on Drugs era) than with individual-level traits.39 And lower-income individuals are more likely to experience not only punishment, but also crime; the crime-poverty relationship is reciprocal.40 Some scholars have argued that the decline of the welfare state and the expansion of the penal state occurred symbiotically: both were primarily “exclusionary policies” aimed at separating the “deserving poor” from the “undeserving poor,” and the “law-abiding” from the “career criminal.”41
Last, concurrent with the expansion of the criminal justice system was the decline in American jury trials — and with them, the rising power of the American prosecutor.42 Over ninety-five percent of all criminal cases in the United States today end in plea agreements.43 This shift in the processing of criminal cases has dramatically expanded the power of the local prosecutor.44
C. The Rise of Progressive Prosecution
This twin problem of a weakened welfare state coupled with an expanded penal state has provoked a number of responses. The U.S. Department of Justice and the Council of State Governments, for example, began promoting service-providing reentry programs for formerly incarcerated individuals.45 So have grassroots organizations, which attempt to fill the social services gap for the criminal justice–involved by furnishing access to employment and housing assistance.46 Local policymakers, too, have begun pushing for reforms — notably, at the prosecutor’s office.47 A new social movement has taken hold over the last five years in American law enforcement — “progressive prosecution” — some of whose subscribers acknowledge the need for holistic reforms that pair the defendant with (generally) community-provided social services, in the midst of an era wherein state-provided services have become increasingly difficult for the criminal justice–involved to access.
“Progressive prosecution” refers to the wave of reform-minded prosecutors who have been elected in state and local chief prosecutor races nationwide over the past half decade, often on platforms of curtailing mass incarceration and its effects.48 The movement began around 2016, with the elections of Kim Ogg (elected in November of 2016 as the District Attorney (DA) of Harris County (Houston)), Kim Foxx (November 2016, State’s Attorney (SA) for Cook County (Chicago)), and Larry Krasner (November 2017, DA of Philadelphia).49 Progressive prosecutors’ political stances and approaches to the criminal justice system situate them in stark contrast to the traditional, tough-on-crime prosecutors that preceded them50 — and position them well to pursue holistic reforms to counter the criminalization of poverty. They subscribe to a philosophy of holistic justice or, in then-DA Rachael Rollins’s words, “represent[ing] not just the victim, but the defendant and the community,” too.51 They are driven by a recognition that the law-and-order approach to crime and punishment is, at best, ineffective and, at worst, actively harmful.52 They acknowledge their unique power as prosecutors to redress mass incarceration and its accompanying social ills.53
Progressive prosecutors espouse reform-minded policies that aim to, for example, reduce mass incarceration by declining to prosecute low-level offenses; mitigate racial and socioeconomic disparities by reforming or eliminating money bail; establish conviction integrity units; expand diversionary programming; decriminalize low-level drug offenses; promote police accountability; ensure greater public transparency; and the like.54 Their holistic approach to crime and punishment takes the rights of the accused seriously, while simultaneously seeking justice for victims and fostering public safety — by recognizing that over incarceration and overly penal policies may actually circumvent that goal. Progressive prosecutors thus aim “to transform the [criminal justice] system from the inside out,” and to do so with a holistic focus on the needs of communities, victims, and defendants alike.55
The defaults are no longer high bail requests, long sentences, and charging the most serious offenses with the hopes of getting a good plea deal. Perhaps not all defendants should go to prison . . . . For those sentenced to incarceration, shorter sentences might improve overall welfare. The right kind of prosecution policies could lead to “less crime and less incarceration, to the benefit of victims and offenders alike.”
Flanders & Galoob, supra note 48, at 690–91 (quoting Mark A.R. Kleiman, When Brute Force Fails 6 (2009)).
Their reach is expansive: Emily Bazelon contends that “12 percent of the [U.S.] population live[s] in a city or county with a [DA] who . . . could be considered a reformer.”56 Beyond Ogg, Foxx, and Krasner, about seventy other prosecutors subscribe to the “progressive prosecutor” label today.57 They include Republicans and Democrats (though Democrats represent the lion’s share) in red and blue states, in the North and South, in big cities and in small municipalities.58 While some hail from traditional paths (for example, former federal prosecutors), many are former public defenders, civil rights lawyers, or community activists,59 who may be uniquely situated to understand the impact of prosecution on a criminal defendant’s holistic welfare.
Importantly, progressive prosecutors arrive in an era of lessened — and increasingly eligibility-constrained — social safety net provisioning, permitting them to fill the gap. In this way, rather than purely bemoaning the expansion of the criminal justice system per se (although many certainly advocate against mass incarceration and the social ills that accompany it), progressive prosecutors have recognized that the greatness of their power can be used to pursue justice in the criminal justice system in atypical ways. For some, this includes reforms, policies, and programs enacted by prosecutors that more closely align with the objectives of antipoverty caseworkers and social service providers — a welcome surprise from what would generally be expected of criminal justice adversaries, and prosecutors no less.
II. Institutionalizing Welfarist Prosecution
This Part explores the ways in which some reformist prosecutors have embraced holistic visions and policy prerogatives that, deliberately or incidentally, help counteract the contraction of the American welfare state and the criminalization of poverty. This Note terms this new approach to prosecution — whereby prosecutors may see their role as aligned with that of caseworkers, mental health/substance abuse counselors, or social service providers, and treat their institutional work accordingly — “welfarist prosecution.” It refers to the way in which some prosecutors may be moving toward the “social work model” of criminal justice, similar to what we have seen in some public defenders’ offices.60
To be sure, “progressive” prosecutors and “welfarist” prosecutors both share a commitment to holistic justice, but the terms are not co extensive. Prosecutors may be self-proclaimed “progressives,” or aligned with the progressive prosecution movement, but not actionably welfarist (for example, declining to prosecute low-level crimes, though not implementing welfarist programs). Likewise, prosecutors who disavow any association with the progressive prosecution movement could nonetheless promulgate concretely welfarist programs and policies. The welfarist phenomenon, however, has been primarily observed in progressive prosecutors’ offices, which provide an apt trial ground for this higher-level redefining of the prosecutorial role. This Part thus surveys the efforts of progressive prosecutors who are pursuing welfarist goals and engaging welfarist work — institutionalizing “welfarist prosecution” as a new means of reforming the local prosecutor’s office.
A. Welfarist Mission Statements and Goals
Generally speaking, progressive prosecutors embrace a holistic vision of justice and aim to improve the system’s overall fairness to the criminal justice–involved, laying the groundwork for welfarist prosecution. Rather than “focusing on convictions or being ‘tough on crime,’”61 progressive prosecutors generally focus on “whether or not the prosecutor sought a just or equitable outcome for all parties affected by the prosecution process.”62 They have in effect “chang[ed] the tone” of prosecution by promoting “a more open, less punitive, more holistic approach to criminal justice,”63 as is reflected not only in their policies but also in how they “project an image of care and concern not only for victims, but also for criminal defendants who themselves might in some sense be victims of social circumstances or systemic racial injustice.”64
Some welfarist progressive prosecutors have taken this vision further — seeking not just criminal justice, but more just social welfare outcomes for the criminal justice–involved. As a poignant example, Boston’s former DA Rollins described her understanding of her role as a prosecutor as follows:
I was elected DA on the promise that I would use the power of this office to lift up communities. Prosecutors are not merely attorneys; we are ministers of justice. That role extends far beyond the courtroom. Racial justice. Economic justice. Educational equity. Equal access to medical and mental health care. Commitment to our youths’ success and improvement. These are all societal issues that impact public safety but that can’t be handled exclusively through a law enforcement approach . . . . We can’t arrest our way out of substance use disorders or prosecute away poverty and lack of opportunity.65
Then-DA Rollins understood that as a “minister of justice,” she was obliged to “lift up communities” on issues of racial justice, economic justice, educational opportunity, and poverty — matters traditionally understood to be outside the purview of the American prosecutor and left to the welfare state. This expansive vision of a DA’s role in the criminal justice system aligns with an expressly welfarist orientation committed to facilitating higher-order social welfare goals rather than prosecuting to convict: as then-DA Rollins noted, “I represent not just the victim, but the defendant and the community.”66
Others have described their prosecutorial philosophies and missions similarly. Per SA Foxx: “Criminal justice, law, crime, and violence [are] complicated. These are not simple issues”; they require “a holistic approach” because “if people are healed, they don’t hurt.”67 DA George Gascón (Los Angeles) promised to “employ a holistic paradigm of public safety.”68 As another example, Prosecuting Attorney (PA) Dan Satterberg (Seattle) promised to “meet people [with substance use disorder] where they are with care navigators, counselors and more rapid access to effective treatment medications” and to “build a judgment-free approach to holistic health needs for people struggling with substance use disorder.”69 These prosecutors aren’t alone.70 The prosecutors who espouse these expansively holistic visions and acknowledge the social service needs of criminal defendants evince a welfarist understanding of their role in the criminal justice system.
B. Welfarist Programs and Policies
Beyond endorsing holistic justice visions — which the archetypal progressive prosecutor does — some prosecutors enact those visions via tangible programs and policies in a distinctly welfarist fashion. In addition to their stated ideologies and express acknowledgments of the need to consider the social circumstances of the criminal justice–involved, these prosecutors’ offices have enacted policies and programs that serve to counter the criminalization of poverty and (deliberately or incidentally) bridge the gap left by lackluster social services. These include, for example, connecting defendants with job training programs; advocating against monetary sanctions and bail bonds; promoting diversion, mental health, and substance abuse programming; and promoting specialty court programs for marginalized populations. In some cases, welfarist prosecutors affirmatively link the criminal justice–involved to existing programs (either in the community or sponsored by the state); in others, prosecutors’ offices provide welfarist services themselves. While by no means a full replacement in scope or form, these direct and indirect programs and policies embody a welfarist orientation and fulfill, in practice, analogous social roles to those once served by a more robust welfare state.71
For example, welfarist prosecutors connect defendants with em-ployment opportunities. Some do so through community partnerships, like St. Louis County PA Wesley Bell, who has pledged “to build partnerships in the community and bring in resources such as job training and placement, as well as drug addiction and mental health treatment.”72 Similarly facilitating connections to job training pro-grams, PA Satterberg’s Law Enforcement Assisted Diversion program affirmatively “steers people arrested for drug offenses and prostitution away from prosecution and into services aimed at decreasing recidivism such as drug treatment and job training.”73 In this way, PA Satterberg’s office directly aims to supplant a criminal justice approach with a welfarist response, and he is not alone in using job training programs as a means of diversion.74 DA Ogg, similarly, has hosted public workshops with community partners to help provide attendees with job training, information about employment options, and educational opportunities.75 This creative, direct promotion of employment opportunities would seem to have no place in the traditional approach to prosecution, which is concerned primarily with securing conviction rates. Still other welfarist progressive prosecutors have, less directly, advocated for enhanced funding for job training services,76 again stepping out of their traditional law enforcement role and into more a welfarist orientation.
In addition, many welfarist prosecutors have called for an end to money bail and monetary sanctions, with clear social welfare implications.77 DA Gascón, for example, directly eliminated cash bail on his first day in office.78 DA Krasner announced that his office would no longer seek bail from individuals arrested for twenty-five low-level offenses, to avoid locking people up “simply because they were too poor to make bail.”79 San Francisco’s DA Chesa Boudin, who likewise stopped the practice of asking for cash bail upon assuming office, describes money bail as “a system that privileges the wealthy and the powerful over the poor and the innocent.”80 Moreover, others have pledged to end fines and fees, with the express recognition that in so doing, prosecutors’ offices can move closer toward “a truly fair and consistent system of justice in which low-income defendants do not face additional punishment by way of unaffordable fines and fees that drive them deeper into debt and poverty,” in DA Krasner’s words.81 This recognition is uniquely welfarist and expressly acknowledges the class biases built into the money bail system; elimination of this system actively confronts the criminalization of poverty.
On mental health, welfarist prosecutors tend to understand the need for addressing issues of mental illness and addiction as not only a crime-reduction tactic, but also a welfare-enhancing measure.82 After all, “[i]n a mental health crisis, people are more likely to encounter police than get medical help,” resulting in “2 million people with mental illness [being] booked into jails each year.”83 The link is well established between the historic deinstitutionalization of state-run mental healthcare facilities and the rise in individuals with mental illness finding themselves enmeshed in the criminal justice system.84 Some prosecutors have, in part, responded to the decline in state-provided welfare services by recognizing this connection in their prosecutorial work85 and by framing mental health–related criminal activity as a public health problem, not a crime problem.86 In practice, this has entailed welfarist prosecutors directly promoting drug treatment and diversion over criminal charges for drug-involved crimes,87 delivering direct grant aid to mental health–related community organizations88 and (less directly) lobbying for legislation that would bolster drug treatment centers so as to better support the overall wellbeing of the criminal justice–involved.89
Last, some prosecutors have engaged a welfarist model in their liberal use of diversion through specialty courts, including drug courts and treatment courts, as well as mental health courts, homeless courts, and veterans’ courts.90 This typically entails diversionary referrals thereto.91 Specialty courts, in turn, may directly provide individuals with a variety of social services, including job skills trainings, educational scholarships, employment assistance, and transitional housing.92 Some prosecutor office–sponsored diversion programs have themselves hired social work professionals to assist defendants with securing employment, GEDs, vocational training, and substance use disorder rehabilitation services; some even provide transportation to/from services.93 This is an impressively direct intervention of a prosecutor into the role of a social service provider. In addition to the social welfare–enhancing effects of attending treatment court generally (at least in comparison to traditional courts), drug courts regularly require defendants to have or procure stable employment.94 While this requirement may lead to similar exclusionary effects as do the employment eligibility requirements of welfare-to-work programs,95 it nonetheless represents a dual (if imperfect) attempt (a) to provide social services through addressing addiction and mental healthcare needs and (b) to assist the criminal justice–involved in accessing needed financial resources, along with other social services.96 In these ways, some progressive prosecutors have attempted to live up to their promise to pursue holistic justice through distinctly welfarist programs and policies that have, intentionally or incidentally, begun to fill some of the gaps in the United States’s weakened welfare system — particularly as applied to the criminal justice–involved.
III. Consequences of the Welfarist Shift
This Part explores the normative and theoretical consequences of the shift in prosecutorial orientation away from a traditional, adversarial model of law and order and toward a holistic, demonstrably welfarist approach. One interpretation of the shift is that it represents a continuation of the public defense social work model, applied now to prosecutors’ offices. Even so, though, is the shift defensible in light of the adversarial model through which the criminal justice system is set up? This Part surveys the tensions and argues, first, that prosecutors need not be conceived as strictly adversarial. Second, even if this development is inherently conflicted, welfarist prosecution is still better than the alternative — a system in which a weak social safety net’s effects are compounded by an expansive penal state.
A. The Social Work Model and the Ministerial Prosecutor
Social workers have long interacted with the criminal legal bar, albeit on the defense side.97 They began working in public defense offices fifty years ago, where they “have played a critical role in ensuring that public defense clients receive needed services outside of the criminal justice system.”98 At its core, the defense-side social work model attests to the holistic needs of the criminal justice–involved. In collaboration with attorneys, these social workers evaluate clients’ needs, prepare reports, appear in court on clients’ behalf, and refer clients to services in the social safety net.99 They act as an essential “part of the defense team,” and the most robust practices “consider broader issues affecting the client (for example, substance use, mental health, poverty, and family and social support), potential responses or resolutions to these issues, and reentry and the collateral consequences of involvement in the criminal justice system.”100 Welfarist prosecution extends the social work model into the prosecutor’s office. Defense-side social workers, like welfarist prosecutors, view their mission holistically.101 They both help protect against collateral consequences by ensuring defendants have access to a social safety net postdisposition.
This ostensibly conflicts with the prosecutor’s adversarial role. A prosecutor’s formal job, in the adversarial system, arguably is to litigate against those they prosecute, not serve as their caseworker. Prosecutors are ill positioned for social services provision if they are conceived as a fundamentally coercive arm of the state. Indeed, some progressive prosecutors have been criticized for misunderstanding structural inequalities in social circumstances.102
But prosecutors have another institutional role — to be “ministers of justice.”103 This ministerial conception is arguably a better way to understand the modern U.S. prosecutor, as it recognizes that it’s in the interest of their client (the state) to “seek justice” and that prosecutors’ work involves exercising moral (as opposed to amoral) discretion.104 In this view, the prosecutor seeks justice of a higher order, rather than merely securing conviction rates. Though a departure from the strictly adversarial approach, welfarist prosecution sits comfortably within this ministerial conception of the prosecutor’s role in the criminal justice system.
Additionally, strains on public defense resources might necessitate welfarist prosecution. Public defenders’ caseloads continue to grow, and without defense spending keeping pace, many criminal justice–involved individuals go without attorney-facilitated social services altogether.105 The consequence is an increasingly one-sided criminal legal system, characterized by “the disappearing adversary.”106 This heightens the need for reformist prosecutors to pursue ministerial, welfarist justice. To do so, the social work model (welfarist defense), aligned with the ministerial view of the role of the prosecutor, is a helpful guide.107
B. A Mitigatory Step in the Right Direction
Notwithstanding welfarist prosecution’s limitations, it is a welcome development given the otherwise weak social safety net for the criminal justice–involved. In Bazelon’s words, “[w]hile it would be nice if lawmakers and the courts threw themselves into fixing the criminal justice system” — and if policymakers reinforced the social safety net — “in the meantime, elections for prosecutors represent a shortcut to addressing a lot of dysfunction.”108 And especially so for the criminal justice–involved, who have been uniquely disadvantaged by the weakened welfare state and its eligibility and welfare-to-work requirements; they are in a unique position to be assisted by welfarist prosecutors.
Welfarist prosecutors — like many prosecutors described in this Note — understand the challenges of poverty, homelessness, lack of adequate mental health care, and addiction that some of the accused face. They have the power and, arguably, ministerial responsibility to administer their prosecutorial discretion toward welfarist ends. The progressive prosecution movement responds to calls to reimagine the prosecutorial role as one of a caretaker,109 a servant of the law,110 or a “color-conscious” professional attuned to the racial and socioeconomic realities of the criminal justice system.111 The movement embraces a truly rehabilitative model of criminal justice that contends with inequitable social starting points. But it can go further by also responding to the criminalization of poverty and, as we have seen from at least some progressive prosecutors so far, promoting an expansive welfarist agenda that takes into account the holistic needs of the criminal justice–involved.
Of course, welfarist prosecution is not a silver bullet. Practically speaking, prosecutors’ abilities to provide welfare-enhancing services are contingent on their own budgets, which vary by locality.112 And meaningfully sweeping reductions in the criminalization of poverty will materialize only when society “reform[s] the system as a whole.”113 Relatedly, prosecutors doing this work must take care to protect against reproducing the inequalities and coercive, paternalistic dynamics that undergird the U.S. criminal justice system; for example, reformist prosecutors must proactively guard against punitive sanctions for noncompliance with welfarist programs.114 So while some progressive prosecutors’ offices indeed offer hope into the welfarist prosecutorial model, the success of this shift remains to be seen.
Still, welfarist prosecutors have redefined and expanded the role of the prosecutor — counteracting the rise in excessive policing and the United States’s weak and punitive social safety net through their holistic orientations, programs, and policies. Indeed, “it takes a village” to incarcerate an individual.115 Why not include prosecutors in the village that has ad hoc arisen to bolster the weakened welfare state, especially for the criminal justice–involved, who may suffer its effects the most severely?
The progressive prosecution movement arose at a unique time in America’s history. The criminal justice system has become over burdened, overly punitive, and insufficiently adaptive to the holistic needs of those whose lives it touches. At the same time, the United States has witnessed a marked decline in the accessibility and availability of social services provisioned through the welfare state, noticeably in the transition from AFDC to the more restrictive TANF. And the “mark of a criminal record” that Professor Devah Pager found nearly two decades ago manifestly abounds,116 severely curtailing the access that criminal justice–involved individuals have to social services. Welfarist prosecutors offer a glimmer of hope in this society, albeit providing an imperfect solution given the tensions in asking a penal arm of the state to do the welfare state’s work. Unless the United States sees a substantial widening of the social safety net to bring it up to par with its peer nations,117 and until the United States likewise meaningfully confronts its related mass incarceration problem, welfarist prosecution represents a valuable interim step forward in mitigating the criminalization of poverty.