The tide is shifting. A nascent yet invigorating movement is threatening to displace the old-guard school of prosecution: progressive prosecution. While this movement may have once been thought of as an oxymoron, prosecutors running on progressive platforms are redefining the role. Prominent progressive leaders such as Larry Krasner have become household names in the criminal law space, introducing reforms ranging from police accountability to the elimination of cash bail.”[1] Although the movement of progressive prosecution has been subject to much criticism, its critiques have been largely dispelled by existing statistics—progressive jurisdictions do not show a “spike in crime after the implementation of progressive reforms.”[2]

The substance of progressive reforms has commanded public attention, but another issue in implementing change lurks beneath the surface: how does an incoming progressive prosecutor ensure that their visionary platform is executed by line prosecutors in the office? While this issue is not one ordinarily discussed on the campaign trail, it is one that directly impacts both voters and the integrity of the democratic process.[3] It is also a timely issue. Much of Vice-President Kamala Harris’s prosecutorial record as a former state and local prosecutor has been under scrutiny, and she has often defensively distinguished her decisions as head prosecutor from those of line prosecutors in her office.[4] Could concerning arguments and actions by her attorneys have been the result of faulty implementation of her vision rather than faulty vision?

Newly elected progressive prosecutors should consider the issues of delegation and accountability when shaping their operations by implementing creative accountability mechanisms that do not stifle line prosecutor autonomy, but instead cultivate a coherent progressive office culture.

 STRUCTURE AND THE PRINCIPAL-AGENT PROBLEM                                                                             

The structure of local prosecution in the United States is different from that in many other regions.[5] While prosecutors elsewhere are “subject to centralized policies and reviews,” here, “the work of prosecutors…happens in small local offices that do not answer to a centralized prosecutorial authority at the state or national level.”[6] Local prosecutor offices have “a median staff size of ten,” but most United States residents “live in jurisdictions [with local prosecutor offices of] median staff sizes over 100.”[7] Some smaller states have a level of centralization across local offices mirroring the Department of Justice oversight over federal prosecutors, while most larger states do not have such a hierarchy.[8] Regardless of the size of a prosecution office, the practical reality is that “line prosecutors,” or junior unelected prosecutors, run much of the office caseload.[9] Given that a head prosecutor must, by necessity, delegate this responsibility to line prosecutors, there runs a risk that junior prosecutors will not fully comply with the head prosecutor’s direction or vision; this risk is otherwise termed the “principal-agent problem.”[10] The degree of noncompliance by the agent, in this case the line prosecutor, with the principal, or the head prosecutor, is termed an “agency cost.”[11] According to a Note in the Harvard Law Review, “in the context of criminal prosecutions, where the stakes involve the lives of individuals, agency costs will be high.”[12] Moreover, the lack of hierarchy often characterizing local prosecution offices magnifies any potential agency costs.[13]

The principal-agent problem can also dilute an elected official’s campaign platform and thus undermine democracy by failing to adhere to the people’s mandate.[14] The principles of democracy often stand at odds with the practical realities of management within an elected official’s bureaucratic structure; local prosecution is no exception.[15]


The progressive prosecutor’s platform is often characterized by an “anti-rubric” stance.[16] Progressive prosecution takes a holistic approach that avoids “fili[ng] the maximum possible charge as a matter of course,” but instead emphasizes extenuating circumstances and consideration of “the systemic or socioeconomic factors that may have disadvantaged the defendant and played a part in bringing him or her before the court.”[17] Moreover, progressive prosecutors often acknowledge that cutoffs between misdemeanors and felonies are arbitrary and cannot be used as a strict guideline in every case. For example, the numerical cutoff between petit and grand larceny in Virginia, a misdemeanor and felony respectively, has changed frequently in the recent past and does not reflect the other circumstantial factors surrounding larceny.[18]

Practical considerations also pervade the decision to afford wide discretion to line prosecutors—rule-based frameworks are impossible to fully implement in practice because they require constant oversight.[19] For instance, a reform-minded prosecutor may campaign on a platform of liberal discovery policies. However, in practice, “line prosecutors charged with [ ] carrying out discovery” may act contrary to that vision, such as by suppressing documents.[20] Moreover, there is a high risk that prosecutors may indeed act contrary to the head prosecutor’s vision because the incentive governing our adversarial legal system is to win.[21]


From a managerial standpoint, buy-in and inculcating a cohesive culture in the office are the cornerstone of effective operation. Such a culture can be cultivated through a top-down approach of formal head prosecutor oversight, a bottom-up approach, or a combination of both.[22] The reality, however, is that “[m]ost prosecutor offices do not ask their attorneys to record any reasons for their decisions.”[23]

Elected prosecutors have adopted a variety of formal practices to ensure accountability of office line prosecutors. A strong starting point in implementing formal accountability mechanisms is to require line prosecutors “to justify major decisions in writing.”[24] One local Virginia prosecutor reviews all cases being certified to the Circuit Court prior to presentation before a Grand Jury, frequently a bottleneck within the Virginia criminal justice system.[25] Another formal accountability measure could include numerical and qualitative performance evaluations of line prosecutors by criminal justice stakeholders including other prosecutors, judges, defense counsel, victims, defendants, and jurors—head prosecutors would then be “responsible for improving their subordinates’ performance, much as corporate managers take credit or blame for their firms’ productivity and share prices.”[26]

Softer mechanisms encouraging greater information-sharing and internal accountability take more of a bottom-up approach to office cultural change. Hiring line prosecutors deliberately based on skill sets, traits, and vision can build a strong foundation for office culture.[27] Some prosecutor offices encourage or require information sharing with the defense bar, while others require occasional random distribution of cases to attorneys to incentivize attorney communication and understanding.[28]

Progressive prosecutors face heightened challenges in implementation because their platforms are often characterized by looser structures rather than rigid rubrics. While there are multiple approaches to achieving greater consistency, head prosecutors must act rather than ignore this practical consideration in favor of issues that command greater media attention.

*Aleena Ijaz, J.D., expected May 2022, Harvard Law School; B.A., Public Policy and Economics, The University of Virginia. I would like to express my gratitude to the GW Law Criminal Law Society and Criminal Law Brief Executive Board for providing a platform for the legal community to explore issues that are garnering more national attention than ever before. I would also like to thank Fair and Just Prosecution and Akin Gump Strauss Hauer & Feld for giving me the opportunity to spend a portion of my summer with a true visionary and dedicated public servant, prosecutor Jim Hingeley of Albemarle County.

[1] See Allison Young, The Facts on Progressive Prosecutors, CTR. FOR AM. PROGRESS (Mar. 19, 2020),   

[2] Id.

[3] See Ronald F. Wright and Marc L. Miller, The Worldwide Accountability Deficit for Prosecutors, 67 WASH. & LEE L. REV. 1587, 1606 (2010), (noting that the election of local prosecutors most often turns on “claims of high-profile cases” rather than substantive policy, let alone technical and unsavory issues such as office structure and management).

[4]  See, e.g., Danny Hakim et al., “Top Cop” Kamala Harris’s Record of Policing the Police, N.Y. TIMES (Nov. 9, 2020), (Harris denied knowledge of legal arguments by her line prosecutors opposing the release of eligible parolees because it would reduce the prison labor force).

[5] See Wright and Miller, supra note 3, at 1602–04.

[6] Id. at 1603–04.

[7] Id. at 1614.

[8] See Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. PA. L. REV. 959, 1000–01 (2009) (For instance, “[i]n Connecticut the attorney general appoints state’s attorneys [and] in New Jersey the governor appoints county prosecutors.”).

[9] See Note, The Paradox of “Progressive Prosecution”, 132 HARV. L. REV. 748, 760 (2018).

[10] Id. 

[11] Id. at 761.

[12] Id.

[13] See Bibas, supra note 8, at 1002. While the management trend is to cut down red tape and bureaucratic structure, the other extreme also subverts efficient management. In many local prosecution offices, “even line prosecutors express frustration with the lack of coordination.” Id.  

[14] See Russell M. Gold, Promoting Democracy in Prosecution, 86 WASH. L. REV. 69, 84 (2011) (“Allowing prosecutors to exercise…delegated sovereign authority is acceptable in a democracy only insofar as the people retain the ultimate authority to oust prosecutors if they disapprove of their decisions.”).

[15] See id.

[16] See 21 Principles for the 21st Century Prosecutor, FAIR AND JUST PROSECUTION (2018),

[17] Id. at 5.

[18] As an intern with Commonwealth’s Attorney of Albemarle County, Virginia, I spoke with several local Virginia prosecutors to better understand the structure and policies of their office. This information was gleaned through one such conversation.

[19] Id.

[20] The Paradox of “Progressive Prosecution”, supra note 9, at 761.

[21] See id. at 761–62.

[22] See Bibas, supra note 8, at 998 (One view is that “[b]ecause there is so much inertia to overcome, cultural change must start from the top down, not the bottom up.”).

[23] Wright and Miller, supra note 3, at 1609.

[24] Bibas, supra note 8, at 1006.

[25] Supra note 18.

[26] Bibas, supra note 8, at 989–90.

[27] See id. at 1008–09.

[28] Supra note 18.