County Prosecution and State Preemption: The Confusing Politics of Criminal Legal Reform and Backlash

Urban reform prosecutors, who are generally elected at the county level, find themselves in a tricky political spot. On the one hand. most urban counties are in many ways “too big” for reformers: they include large numbers of suburban voters who generally dislike reform, in no small part because they are relatively unaffected by the decisions prosecutors make. On the other hand, these counties are also often “too small”: they lack the political power to resist efforts by conservative state legislatures and governors to rein in, if not outright remove, reformers. This Article examines both vulnerabilities. It first maps out the political challenges that more-conservative, whiter suburbs pose for reform efforts in urban counties. And then this Article examines the rising role of state-level pre-emption. Perhaps surprisingly, the results here suggest that the latter threat may be less severe than it initially appears. While state legislators introduce a lot of bills targeting reform prosecutors and reform efforts more broadly, almost all appear to die before passage. It is still important not to understate the risk state-level preemption poses for reformers, but it is also important to acknowledge the limits of such threats and the opportunities available to reformers to push back against them.