The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In prior posts I have offered a dismal view on why it will be difficult for the U.S. to shed the "mass incarceration" label. Nonetheless, even an impossible situation has degrees of badness, and the size of the task is no excuse for not trying to get better. As noted earlier, some progress has been made in reducing inmate populations; but to continue to make gains will require a sustained and coordinated effort from all actors in the system.
A threshold problem is that the list of actors who need to coordinate their efforts is long. As James Foreman, Jr., puts it:
The police make arrests, pretrial service agencies recommend bond, prosecutors make charging decisions, defense lawyers defend (sometimes), juries adjudicate (in the rare case that doesn't plead), legislatures establish the sentence ranges, judges impose sentences within these ranges, corrections departments run prisons, probation and parole officers supervise released offenders, and so on. The result is an almost absurdly disaggregated and uncoordinated criminal justice system.
In an effort to influence these scattered decisionmakers, reform efforts have targeted legislators, urging them to eliminate mandatory minimum sentences, lower the punishment for drug or property crimes, or soften the impact of three-strikes and truth-in-sentencing laws. Other proposals target judges, encouraging them to use risk-assessment tools when sentencing or setting bail, or to more closely consider alternative sanctions rather than incarceration. Still other reforms address probation and parole officers, police, and prison officials, all recommending changes in practice that will reduce the number of people being sent to prison, speed up the release time, or both.
Remarkably, the actor who is least likely to be the target of the reforms is almost surely the most important one—the prosecutor. The prosecutor has complete discretion to decide who is charged and for what; has near complete control over which cases end in a guilty plea and on what terms; and has a significant role in deciding who is jailed prior to trial and who is released, all of which channel and shape the ultimate punishment a defendant will face. And yet, as John Pfaff has observed, while prosecutors "have used [their] power to drive up prison populations, ….[t]o date … no state- or federal-level proposal aimed at cutting prison populations has sought to explicitly regulate this power…. [P]rosecutors have remained untouched."
It's not hard to figure out why. Prosecutors have clout, and it is hard to get changes made to the justice system in the face of prosecutorial opposition (particularly if those changes involve greater regulation of prosecutors). Prosecutors also have a judicially-enforced zone of discretion, within which they are free to act without fear of being overruled, even by the courts themselves.
So if prosecutors want to make frequent use of statutory three-strike provisions, or seek particular sentence enhancements, or file higher charges rather than lower charges, or recommend against probation as a sentence, they can do so regardless of the impact on incarceration rates. Legislatures can channel this discretion to a degree by changing their sentencing laws or their substantive offenses, but the broad and overlapping reach of most criminal codes allows prosecutors to reach most of the ends they seek, including an appropriately severe sentence, in most criminal cases.
Despite this broad authority, incarceration reform efforts have not attempted to limit the charging power, have mostly maintained the prosecutor's role in the sentencing process, and have left intact the near-complete power over the plea bargaining process—the straw that stirs the drink in the criminal system. As a result, prosecutors may, if they wish, take steps to reduce incarceration rates, but they are not compelled to do so.
Of course, even if we leave prosecutors outside the reform efforts this does not mean that they necessarily will exercise their discretion in ways that increases the severity and frequency of incarceration. "Prosecutors" are not monolithic in their actions and attitudes,(recall the recent war of words between the Philadelphia D.A. and the U.S. Attorney for the Eastern District of Pennsylvania), and there are many prosecutors who have expressed their unhappiness with the status quo.
Still, prosecutors suffer the same confirmation bias as everyone else; like most of us, they believe that they do their jobs honorably and properly, and that their professional choices make things better, not worse. And so the moral basis for sentencing reform—that is "unnecessary" (and therefore unjust) to lock up this many people for this number of years—is likely to be less convincing to prosecutors, especially when they collectively have played such a significant role in creating the current state of affairs.
This is not to argue that prosecutors are the sole or even the dominant cause of high incarceration rates; Jeffrey Bellin, for example, has cogently argued that the "primary culprits" of the incarceration problem are judges and legislatures. The point is simply that prosecutors play a highly important role, that that states have struggled to find ways to harness the prosecutors' powers to bring about change, and that unlike other actors in the system, prosecutors are involved in the effort to reduce incarceration levels as a matter of grace, not as a matter of command.
James Forman, Jr., has noted that "[m]ass incarceration wasn't created overnight; its components were assembled piecemeal over a forty-year period." Unwinding the missteps and excesses is likely to take at least that long. But even assuming societal patience with the task, there is nothing inevitable about a long-term decrease in incarceration. Extremely hard choices have to be made—are we willing to release those who commit violent crimes earlier than we do now?—and the declining crime rate of the last 20 years that have made reform politically feasible will not last forever.
The recent decrease in incarnation levels is encouraging, but sustained change will surely require a greater engagement by prosecutors. Formal restrictions on their role are not likely to materialize (and may not, in the long run, even be a good idea), which leaves persuasion and cooperation as the tools of engagement. If prosecutors are convinced that incarceration is an over-used tool, there is reason to hope that the prison system can become permanently smaller and more effective. If not, it seems likely that the label of mass incarceration will continue to apply for a very long time to come.