ARTICLES
TOPLASH: PROGRESSIVE PROSECUTORS UNDER ATTACK
FROM ABOVE
Rebecca S. Goldstein*
ABSTRACT
The election of progressive prosecutors across the country holds tremendous
promise for criminal justice reform and the fight against mass incarceration. But
legal scholarship has not reckoned with a primary threat to the success of those
prosecutors: resistance from state-level officials, especially conservative gover-
nors and state legislatures. This resistance from above, which I call “toplash,” is
often more important than electoral backlash. From Florida to Texas to
Missouri, understanding whether progressive prosecutors will succeed or fail in
their reform efforts requires understanding toplash.
This Article provides legal scholarship’s first full account of toplash. It shows
that toplash is considerably broader than preemption, in that toplash includes
not only efforts to narrow prosecutors’ discretion but also efforts to narrow their
geographic jurisdiction or remove them from office entirely. It then explains the
origins of toplash. Toplash emerges from the failure of electoral backlash (since
many progressive prosecutors are popular among their constituents), the rise of
intense geographic polarization (with red-state governments taking on blue-city
prosecutors), and the distinctive politics of crime. The Article then examines
what is wrong with toplash, arguing that toplash is objectionable on several
grounds: as a denial of local democratic autonomy, as an attempt by majority-
white state governments to impose their will on majority-minority (often major-
ity-Black) cities, and as an unjust response by state governments whose disinvest-
ments in cities often contribute to crime in the first instance. I close by examining
the tools—both legal and political—that progressive prosecutors can use to
resist toplash.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158
I. VARIETIES OF TOPLASH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163
A. Removal from Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1164
B. Narrowing Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168
* Assistant Professor of Law, University of California, Berkeley. For helpful comments and conversations, I
am thankful to Michael Collins, Jonathan Gould, Orin Kerr, Miriam Krinsky, Jonathan Simon, and workshop
participants at Berkeley and N.Y.U. Thanks also to Jake Arft-Guatelli, Pascal Jakowec, Colette Lowry, Rachel
Serebrenik, and Dvir Yogev for excellent research assistance. © 2024, Rebecca S. Goldstein.
1157
1. Limiting Substantive Jurisdiction . . . . . . . . . . . . . . . . . . 1168
2. Limiting Geographic Jurisdiction 1172
. . . . . . . . . . . . . . . . . .
C. Narrowing Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174
II. THE POLITICS OF TOPLASH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1177
A. Toplash and the Failure of Backlash . . . . . . . . . . . . . . . . . . . 1177
B. Toplash and Geographic Polarization . . . . . . . . . . . . . . . . . . 1180
C. Toplash and the Politics of Crime . . . . . . . . . . . . . . . . . . . . . 1185
III. WHAT’S WRONG WITH TOPLASH?1187 . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. State-Level Democracy Deficits . . . . . . . . . . . . . . . . . . . . . . . 1188
B. Toplash as White Rule 1190
C. Toplash and Financial Disinvestment . . . . . . . . . . . . . . . . . . 1192
IV. RESISTING TOPLASH?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195
A. Political Resistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195
B. Legal Resistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1202
INTRODUCTION
Across the country, state officials have gone to war against progressive prosecu-
tors. In 2017, then-Florida Governor Rick Scott used his state’s supersession provi-
sion to transfer all twenty-nine of Orlando’s death penalty-eligible cases to a
neighboring county after Orlando’s prosecutor declined to seek the death penalty
in a high-profile case and made clear her opposition to the death penalty more gen-
erally.
1
In 2022, Florida Governor Ron DeSantis unilaterally suspended Tampa’s
elected progressive prosecutor after the prosecutor enacted presumptive nonprose-
cution policies for lower-level offenses and signed a letter vowing not to press
charges against patients for seeking abortions or doctors for providing them.
2
That
same year, the Pennsylvania House of Representatives voted along mostly partisan
lines to impeach Philadelphia District Attorney Larry Krasner solely based on pol-
icy disagreements, with no allegations of ethics violations.
3
In 2023, legislatures in
Texas and Georgia both passed new laws to give themselves expanded oversight
and removal powers over county prosecutors, both times clearly targeting progres-
sives.
4
Mississippi’s legislature moved to reduce the Jackson prosecutor’s jurisdic-
tion to a fraction of its previous size.
5
Similarly, when the Missouri State Senate
was poised to appoint a special prosecutor to take over violent-crime prosecutions
in the city of St. Louis in 2023, the elected progressive district attorney, Kimberly
Gardner, resigned in an effort to avoid the threatened erosion of her community’s
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. See infra notes 63–68 and accompanying text.
2. See infra notes 33–43 and accompanying text.
3. See infra notes 169–72 and accompanying text.
4. See infra notes 46–52 and accompanying text.
5. See infra notes 86–95 and accompanying text.
1158 AMERICAN CRIMINAL LAW REVIEW [Vol. 61:1157
right to select their local prosecutor.
6
That same year, DeSantis unilaterally sus-
pended Orlando’s elected progressive prosecutor,
7
Press Release, Office of Governor Ron DeSantis, Governor Ron DeSantis Suspends State Attorney
Monique Worrell for Neglect of Duty and Incompetence (Aug. 9, 2023), https://www.flgov.com/2023/08/09/
governor-ron-desantis-suspends-state-attorney-monique-worrell-for-neglect-of-duty-and-incompetence/ [hereinafter
DeSantis Press Release].
who had replaced the prosecu-
tor Scott had pushed out in 2017. “We are losing our democracy, right by right,
vote by vote,” the former Orlando prosecutor said after her removal.
8
‘He is a Weak Authoritarian’: Suspended Florida State Attorney Hits Back at DeSantis, CNN (Aug. 11,
2023), https://www.cnn.com/videos/politics/2023/08/11/florida-state-attorney-monique-worrell-ron-desantis-
suspension-intv-ac360-vpx.cnn.
These sorts of efforts are a direct response to the rise of progressive prosecutors.
Over the past decade, more than fifty progressive prosecutors have been elected
nationwide.
9
Although their platforms differ, they share a broad commitment to
using the power of elected prosecutors’ offices to reduce harsh sentencing and pre-
trial detention and increase accountability for police violence. Many also empha-
size reviewing past convictions, reducing the collateral immigration consequences
of criminal charges for noncitizen defendants, promoting transparency with the
defense bar, and, in death-penalty states, curtailing or eliminating the practice of
seeking the death penalty.
10
There is considerable disagreement about what constitutes a progressive prosecutor. Some prosecutors
straightforwardly claim the mantle of progressivism while also undertaking progressive policies. Other
prosecutors, especially in politically moderate jurisdictions, undertake progressive policies but do not label
themselves as progressive for fear that doing so would hurt them politically. Still others, especially in more
liberal jurisdictions, adopt the label of progressivism while pursuing traditional policies. For one overview of
principles of progressive prosecution, see 21 Principles for the 21
st
Century Prosecutor, FAIR & JUST
PROSECUTION (2018), https://www.fairandjustprosecution.org/staging/wp-content/uploads/2018/12/
FJP_21Principles_Interactive-w-destinations.pdf.
The future of criminal justice reform in the United States turns in part on
whether the current generation of progressive prosecutors will succeed or fail in
their reform efforts. A significant part of that story is the prospect that governors
and state legislators will undermine the efforts of progressive prosecutors or
remove them from office. As the opening examples show, state officials opposed
to the policies of progressive prosecutors have attempted to remove certain types
of cases from local prosecutors’ jurisdictions or remove local prosecutors from
office entirely. Like electoral backlash, these are efforts at undoing changes in pub-
lic policies.
11
But because these efforts come from officials at higher levels than
6. See infra notes 72–75 and accompanying text.
7.
8.
9. For two efforts to build lists of progressive prosecutors, each using slightly different criteria, see DEVA R.
WOODLY, RECKONING 237–43 (2022), and Jennifer M. Balboni & Randall Grometstein, Prosecutorial Reform
from Within: District Attorney ‘Disruptors’ and Other Change Agents, 2016–2020, 23 CONTEMP. JUST. REV. 261,
262 (2020).
10.
11. Cf. Jane Mansbridge & Shauna L. Shame s, Toward a Theory of Backlash: Dynamic Resistance and the
Central Role of Power, 4 POL. & GENDER 623, 623–24, 630, 632 (2008) (explaining the concept of “backlash”);
Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 STUD. IN AM. POL. DEV.
230, 238 (2007) (explaining the concept of “frontlash”).
2024] TOPLASH 1159
