Nevertheless, I had no intention of shouting a nappy political statement from the top of my head. Instead, my prodigious performative grew out of my preoccupation with researching and writing this book, which caused me to miss months of trips to my neighborhood barbershop, Hair Architects. As my thesis expanded and grew more radical, so did my nappy hair. Over time, my thesis and hair became increasingly intertwined, like serpentine vines of ivy climbing a redbrick wall. I did not realize how intertwined they had become until I overheard lawyers from LA’s oldest “city” clubs, the California Club and the Jonathan Club, describe my waxing nappiness as “impertinent” and “unprofessional.” These clubs are bastions of corporate and civic power where restraint in bearing, manner, and style are de rigueur and where, following strict dress codes, soberly attired movers and shakers dine and hang out and cut deals. Both clubs barred blacks, Jews, and women from membership until the mid-1980s, when privilege holders were dragged kicking and screaming into the 20th century by lawsuits, threats of lawsuits, a city ordinance, regulatory agencies, and the harsh glare of publicity. What’s more, some of my law students referred to my escalating Afro as “ironic,” in that it made me “look like a criminal” at the same time I teach criminal law. Over time and quite by accident, my hair has grown into a nappy illustration of nonlinguistic political discourse: once dormant, it has been stirred to life by my reflections on the revolutionary power of words and symbols—even ugly epithets and “bad hair”—to pinpoint injustice and bond people together. In this spirit, each morning I activate the performative power in my kinky coils by grabbing a wide-toothed pick by its clenched black fist and sinking its teeth into densely woven mats of hair, followed by choppy outward thrusts in rapid succession that propel spiral shafts vertically into a big, rounded Bat-Signal of solidarity with Black Lives Matter.
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My father litigated his way out of prison by proving that the District Attorney who prosecuted him deliberately lied to the jury. The DA repeatedly assured them that he had not promised the state’s principal witness (then serving a long sentence) leniency in return for testifying against my dad, when in truth they had struck that very bargain. My professional observations of DAs over the last 25 years have only deepened my distrust. As Professor John Pfaff shows in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, first among those true causes of racialized mass incarceration is the nearly unchecked power of DAs: more than stiff drug laws, punitive judges, overzealous cops, or private prisons, prosecutors have been the main drivers of the prison boom over the last 30 years. Pfaff found that although crime was steadily declining in the 1990s and 2000s, which one would expect to be accompanied by decreasing incarceration rates, these rates instead soared, for a simple mathematical reason: the probability that a DA would file a felony charge against an arrestee roughly doubled from about one in three to nearly two in three. More than any other single class of elected officials, prosecutors are responsible for quadrupling the number of people incarcerated since the mid-1980s. Excessive blame and punishment has been the stock in trade of prosecutors for many years, at least in part because many DAs have attempted to bolster political careers by racking up convictions.
Therefore, any criminal justice reform, any way out of the carceral state, any way out of the New Jim Crow, any way forward from our current gulag culture, lies in reform at the prosecutorial level. And that will require a new way of thinking. A new theory of justice. It will require Nigga Theory, and it will require progressive prosecutors.
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Until very recently, I would have scoffed at the notion of a “progressive,” let alone a “radically progressive” or “revolutionary” prosecutor. It would have seemed a ridiculous oxymoron.
But since 2013, voters have elected roughly 30 reform-minded prosecutors, some of them fundamentally reinventing the role of the modern District Attorney. For instance, Larry Krasner, who campaigned on eliminating cash bail, reining in police and prosecutorial misconduct, and ending racialized mass incarceration, won the race for District Attorney of Philadelphia, with 75% of the vote in the general election. In a packed lecture hall in 2018, DA Krasner told my USC law students that ending racialized mass incarceration is “the most important civil rights issue of our time” and, moreover, that the difference between a “traditional” and “progressive” prosecutor is that the latter is a “prosecutor with compassion” and “a public defender with power.” This growing crop of “prosecutors with compassion” and “public defenders with power” has upended my pat, binary way of thinking about the role of the DA. I now recognize the potential of radically progressive DAs to promote deep cuts in racialized mass incarceration. Such prosecutors adopt a fundamentally different moral compass and conception of justice than do traditional “law and order” DAs, the ones whose moral, legal, and political compass sharply distinguishes between victims and perpetrators. They recognize that “hurt people hurt people” and refuse to subordinate the values of restoration, rehabilitation, and redemption to those of retribution, retaliation, and revenge.
I will refer to a truly transformational DA committed to rolling back racialized mass incarceration as a “radically progressive prosecutor” because the simpler “progressive prosecutor” is already becoming a hollow buzzword, fashionable in political circles, but too often used to paper over unprogressive prosecutorial pasts. For instance, in her new book, The Truths We Hold, erstwhile 2020 Democratic presidential candidate Sen. Kamala Harris (D–Calif.) touts her record as a “progressive prosecutor,” from the start of her career as a line prosecutor in San Francisco, up through her tenure as California Attorney General. But does a “progressive prosecutor” defend cheating DAs who have been thrown off cases for withholding evidence (Orange County), falsifying evidence (Kern County) or lying under oath, as happened in a Riverside case, Baca v. Adams, involving a corrupt prosecutor chillingly similar to my dad’s DA?7 In Baca, Harris’ office opposed an appeal by a defendant who was convicted after the prosecutor in his case, just like my dad’s DA, lied to the jury about whether an informant received compensation (in the form of leniency) for his testimony. Harris’ office only withdrew its opposition to the defendant’s appeal after a panel of Ninth Circuit judges asked embarrassing questions about why none of the lying DAs were being charged with perjury and threatened to release an opinion that named names if Harris’ office kept up its misguided opposition to the appeal. And does a “progressive prosecutor” fight the release of a wrongfully convicted man, incarcerated based on the testimony of lying cops, as in the case of Daniel Larsen?8 Does a “progressive prosecutor” advocate for and then enforce an anti-truancy policy that arrests and jails mothers of kids who are chronically truant?9 Does a “progressive prosecutor” in 2014 simply laugh in the face of a reporter when asked about her position on marijuana legalization? Does a “progressive prosecutor” refuse to join other states attempting to remove marijuana from the DEA’s list of most dangerous substances? Does she refuse to resist the federal crackdown on weed?10 Of course not! But in every case Kamala Harris did, making her a “progressive prosecutor” only in a Pickwickian sense. To distinguish such so-called progressive prosecutors from truly transformative ones, I will refer to the latter as “radically progressive” or even “revolutionary” prosecutors, labels that incrementalists, centrists, and shape-shifting traditionalists may find harder to misappropriate in furtherance of their political ambitions.
And true criminal-justice reform requires not only radically progressive prosecutors, but equally radical lawmakers, ones with totally different moral compasses than those guiding centrist Democrats like Joe Biden, who, in an address on live television in 1989 excoriated then-president George H.W. Bush for proposing a billion-dollar investment in the War on Drugs that, in Biden’s view, did “not include enough police officers to catch the violent thugs, enough prosecutors to convict them, enough judges to sentence them, or enough prison cells to put them away for a long time.” As recently as April 2016, Biden insisted that he was “not at all” ashamed of his central role in