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Keywords

law; subversive lawyering; criminal law; progressive prosecution

Abstract

The first thing to note about Audre Lorde’s famous phrase “the master’s tools will never dismantle the master’s house” is that it cannot literally be true. If tools can dismantle the master’s house, the master’s own tools would be good as anyone’s. The main problem would not be that the tools don’t work, but rather how to get them to the people who most need the master’s house dismantled—the enslaved ones. But the considerable work that the phrase does in social justice movements and critical theory is figurative rather than literal. It is usually intended as a rebuke of liberal reformist efforts, or at least as a caution against high expectations for them. In this Essay, which is part of a colloquium on “subversive lawyering,” I examine the progressive-prosecutor movement as a way of interrogating Lorde’s claim. I conclude that she was right, but that should not disrupt the project because most progressive prosecutors have less ambitious goals than wholesale transformation of the criminal legal system. They are mainly reformers rather than radicals. But in two recent cases, elected progressive prosecutors who are Black women were stripped of their discretion— probably the most potent master’s tool for prosecutors—when they tried to exercise it in a way that displeased some powerful elites. These cases demonstrate the limits of reform in the criminal legal system. Not only will the master’s tools never dismantle the master’s house, sometimes they will not even renovate it.

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