The following is adapted from a talk delivered on March 11, 2024, at the Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship on Hillsdale’s Washington, D.C. campus, as part of the AWC Family Foundation Lecture Series.
Preamble
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The writers of our Constitution placed their faith not in specific guarantees of rights—those came later—but in a system of checks on government power. Foremost is the separation of powers among the three branches of the federal government, as well as between the federal government and the states.
For this system to work as designed, people in each branch of the federal government and in the state governments must do their jobs and stay in their respective lanes. But what happens when district attorneys—members of their states’ executive branches—refuse to execute the laws of the land? We are witnessing the results today in blue cities across America.
Approximately 90 percent of criminal cases in the U.S. are handled by the 2,300 elected district attorneys spread across 3,143 counties. The rest are prosecuted by U.S. attorneys operating under the Department of Justice. Until recently, elected county district attorneys upheld their end of the social contract by firmly and fairly enforcing state criminal laws and protecting citizens’ rights. Regardless of party affiliation, these gatekeepers of the criminal justice system did their job. Over the last 30 years, they played a critical role in driving down crime rates, which peaked in 1992, by prosecuting violent criminals, while at the same time creating thousands of alternatives to incarceration, such as drug courts, domestic violence courts, mental health courts, and other highly successful programs.
That changed in 2015 with the launching of the George Soros-funded “progressive prosecutor” movement. This movement is animated by two beliefs. The first is that the entire criminal justice system is systemically racist. The second is that the only way to fix the system is to dismantle it by replacing law-and-order district attorneys with pro-criminal and anti-police district attorneys. The sick irony of this movement is that in the areas where it has prevailed, the most harm has been done to the racial minorities whose interests it purports to represent.
Origins of the Movement
The progressive prosecutor movement—more accurately called the rogue prosecutor movement—is the predictable outgrowth of efforts by earlier Marxist radicals to alter or destroy the American way of life. At its root is the belief that our country and its institutions, including capitalism, are racist. One of the early leaders of the movement to abolish prisons is the infamous Angela Davis, now in her 80s, who in her 2003 book, Are Prisons Obsolete?, equated prisons to modern-day slavery. “The prison,” she wrote, “has become a black hole into which the detritus of contemporary capitalism is deposited”; throwing people into prison, she continued, “relieves us of the responsibility of seriously engaging with the problems of our society, especially those produced by racism and, increasingly, global capitalism.”
Patrisse Kahn-Cullors and Alicia Garza (a.k.a. Alicia Schwartz), cofounders of Black Lives Matter, have also had an enormous influence. Cullors, a militant radical and convicted felon, is a protégé of the director of the Labor Community Strategy Center, whose purpose is to build an anti-racist, anti-imperialist, anti-fascist united front. Garza said at an international gathering of Marxists in 2015: “It’s not possible for a world to emerge where black lives matter if it’s under capitalism. And it’s not possible to abolish capitalism without a struggle against national oppression and gender oppression.”
During a 2017 PBS interview, Garza heaped praise on Angela Davis for her work exposing the “carceral state”—i.e., a state in which people are incarcerated in prisons—and called for its dismantling.
The involvement in this movement of billionaire George Soros, who had been funding liberal causes for years, can be traced to his hiring of attorney Whitney Tymas in 2015. Tymas, who had worked as a public defender and prosecutor, was connected to the Vera Institute of Justice, where she focused on “the role of prosecutors in perpetuating racial disparity.” There she met the ACLU’s Chloe Cockburn, who was working to end “mass incarceration,” and they discussed the role of prosecutors, the low visibility of elections for county district attorneys, and the fact that most people don’t even know who their local D.A. is.
As opponents of the death penalty, Tymas and Cockburn hatched a plan to elect anti-death penalty prosecutors and persuaded Soros to give over $1 million to groups that were successful in electing such district attorneys in Louisiana and Mississippi. Eventually, that modest aim—to unseat pro-death penalty prosecutors—grew into a national movement with a more ambitious goal.
Emily Bazelon, New York Times Magazine staff writer and Soros media fellow, summed up the goal in terms of “mak[ing] the system operate differently” by electing “prosecutors who will open the locks” of prisons. Rachel Barkow, a law professor and former member of the U.S. Sentencing Commission who supports the rogue prosecutor movement, summed up its goal as follows: “to reverse-engineer and dismantle the criminal justice infrastructure.”
This well-funded and organized movement is not about liberal versus conservative, Democrat versus Republican, or black versus white. It is about power.
From the start, the movement focused on the fact that prosecutors, not police, are the gatekeepers of the criminal justice system. District attorneys decide whether to file charges and which charges to file. By replacing traditional prosecutors with attorneys who see defendants as victims, it would be possible to “reverse-engineer” and “dismantle” the existing criminal justice system.
It is no coincidence that Soros, the various political action committees that he controls or funds, and his wealthy far-Left allies have given huge financial support to rogue prosecutor candidates in deep blue cities. They target these cities because their electorates are not paying close attention to down-ballot races and can be misled through a bombardment of often misleading advertisements.
Over the past decade, Soros has spent more than $40 million on campaigns to elect rogue prosecutors. One group has estimated that he has donated as much as $1 billion to the cause, if policy infrastructure, media relations, sponsored academic and think tank papers, lobbying campaigns, and grassroots organizing are taken into account. Other billionaires, like Mark Zuckerberg, Facebook co-founder Dustin Moskovitz and his wife Cari Tuna, and Patty Quillin, the wife of Netflix CEO Reed Hastings, have also generously contributed to the cause.
The Playbook
One of the hallmarks of the rogue prosecutor movement has been its usurpation of the constitutional role of state legislatures. Once elected, rogue prosecutors refuse to prosecute entire categories of crimes that are on the books in their states, justifying their refusal by claiming “prosecutorial discretion.” But in fact, their refusal to prosecute crimes violates the separation of powers between the executive and legislative branches of government and distorts the entire legal system.
Prosecutorial discretion is not limitless. The principle behind it requires the enforcement of laws except in cases when prosecutors believe in good faith that an applicable law is unconstitutional. It does not give prosecutors the power to redefine crime and punishment. By refusing to prosecute entire categories of crime, they are in effect repealing criminal statutes—acting in place of the legislature. This is prosecutorial nullification, not discretion.
Valid prosecutorial discretion takes many forms, but when we allow for the chronic violation of law, we erode the foundation of our cities and civilization—and respect for the rule of law evaporates.
Today, there more than 70 rogue prosecutors across the country. They represent more than 72 million people, or one in five Americans, and they proudly refuse to prosecute most misdemeanors, claiming that these are essentially harmless “quality of life” crimes that divert scarce resources. To take one example, Rachael Rollins, the former district attorney of Suffolk County (Boston), posted a list of 15 misdemeanors her office would not prosecute, including trespassing, shoplifting, larceny under $250, disturbing the peace, receiving stolen property, operating a vehicle with a suspended or revoked license, wanton or malicious destruction of property, and possession with intent to distribute illegal drugs.
Other rogue prosecutors have followed suit. George Gascon, the district attorney of Los Angeles County, issued a written directive to his 1,000 prosecutors detailing the 13 misdemeanors that “shall be declined or dismissed before arraignment and without conditions” unless certain exceptions or other “factors” exist. In the same directive, he said it is not “an exhaustive list,” and that each prosecutor has the discretion to decline any of the hundreds of other misdemeanors in the California penal code that fall within the “spirit” of his directive.
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