The Volokh Conspiracy

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Is Mass Incarceration Inevitable? Part 5. The Role of Prosecutors

Long term change in incarceration rates will be hard without prosecutorial buy-in.


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.

NEXT: Today in Supreme Court History: October 11, 1972

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  1. Can we get around, finally, to discussing the role of the criminal in mass incarceration? They and their crimes are pretty central to it.

    1. The biggest criminal is the government. Not only are many government acts criminal themselves, it is government which has turned so many voluntary and harmless activities into crimes, and then gleefully enforced them for no reason except to win votes.

    2. Well, how would you frame such a discussion. Crime rates, even after the Ferguson Effect has played itself out, is at an all time low.

      1. Hmmmmmmmmm. So we keeping locking up criminals and the crime rates keep dropping? That sure is a kooky coincidence, we should probably let the criminals out.

        1. Well, for starters it started dropping before the mass incarceration started, and kept dropping after it "topped out". So yes. While we know it had some effect, how much?

          1. Yeah, it's widely suspected at least part of the drop was due to stopping use of lead in gasoline, resulting in less brain damage to the next generation.

            1. Widely suspected, but that's it, and the legalization of abortion. I'm not putting to much stock in the lead thesis, because, for example, Japan had just as much lead exposure, but they didn't have a corresponding rise in crime, even if it was a lesser one due to starting out at a lower level.

    3. I'm glad this is the first comment. This assertion from the original post is risible:

      Remarkably, the actor who is least likely to be the target of the reforms is almost surely the most important one—the prosecutor.

      The actor with the most power to reduce mass incarcerations is criminals, who could simply make the choise not to commit crimes. Now, fine, if we think some categories of crimes shouldn't be crimes we can go ahead and let out the tiny fraction of people who are actually in jail for, say, simple drug possession. And some small but nonzero portion were falsely convicted or pled out. But the majority of the time, when you're looking at some in prison, you're looking back at someone who chose to commit a violent crime. That's the actor who needs "reform," but somehow this never comes up, as if the choice to commit aggravated assault was inevitable.

      1. How many criminals did no harm, but only violated some prude's sense that somewhere someone was having fun? There's your real criminals, the government which makes fun a crime.

        1. Surely at worst the government is just among the real criminals, because there are private sector criminals that do things like rape and murder people.

        2. If you had paid attention to the previous posts in the series, you'd know that over half of the incarcerated in the US are there for violent crimes, and a huge percentage of the rest are there for things like burglary and grand theft. If we released every single person held for victimless crimes, we'd still have "mass incarceration" by the compare-with-other-countries standard.

          1. How many of the thieves are there because their drug habit has been made expensive by the government?

            2/3 of murders are gangs killing each other over turf to sell their expensive drugs.

            1. Because government prohibition doesn't make drugs illegal, and thus expensive and the sale controlled by criminal gangs, in countries with much lower incarceration rates? You think the reason Japan imprisons only 41 people and has only has 0.2 homicides per 100,000 population (versus the US's 665 and 5.3) is that Japan has more relaxed drug laws than the US does?

              I'm not saying laws against victimless crimes are good. But on just a moment's reflection they very obviously are not the engine that explains either the US incarceration or homicide rates compared to other G7 countries, which generally ban pretty much the same stuff we do.

    4. Not 'the criminal' but rather the law-violator. In an ideal system the two would be the same, but practice they are merely overlapping sets.

      By changing the law, we can change whether persons who grow pot, or own 10+ round pistol magazines, or own slaves, or help slaves escape, or practice hairdressing without a license, or perform abortions, or enter into the US without a passport or visa, or... are law-violators, but changing the law does not change the inherent criminality of their acts. Labeling all law-violators as 'criminals' begs the question of whether the laws in question should be repealed as part of the effort to relieve mass incarceration.

      1. The outright majority of the people incarcerated in the US, and thus the core issue that any effort to end "mass incarceration" in the US has to address, are violent criminals.

        If you're talking about anyone else, you're not even trying to discuss "mass incarceration". You're just trying to hijack the conversation about "mass incarceration" to discuss a personal hobbyhorse.

        So, no, the person to be discussed when the issue is "mass incarceration" is not "the law-violator", but the criminal, and indeed not just any criminal, but the violent criminal. Anything else is refusing to face reality.

  2. For what it's worth, we do have a measure of Tocquevillian local control over the democratically elected state's attorney/district attorney when it comes to how they (over)charge. If they overcharge, the people do have an ability to respond at the ballot box. Frankly, it's the federal guys that are more apt to be a problem as they are less accountable.

  3. "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"

    This is your primary thesis, and yet I haven't really heard any evidence in favor of it. The mere fact that we have more people incarcerated than other countries doesn't mean that we're wrong. Before you start tearing into all the various actors for what they're doing to make the problem worse, I'd like to hear that there is actually a problem.

    1. Along the same lines, might the reasons that prosecutors oppose mass de-incarceration be because they work closely with both defendants and victims on a regular basis and they see the harm that crime brings instead of just a statistic?

  4. The NPR program On The Media did an hour long program about some prosecutors who are joining the reform side. See Repairing Justice: The Prosecutor

    I have always like the idea of the Navy's JAG system, where a single office, a single budget, handles both prosecution and defense. Lawyers in the office are assigned to prosecute/defend case by case. That would seem to get to many of the problems mentioned in this blog, plus the enormous problem if unbalance in power and money between the government and poor defendants; between DA's office and public defenders office. I never heard a compelling reason why the JAG system could not be used everywhere.

    1. I feel like the culture/incentives within that office would trend to rewarding convictions more highly than defense wins, leading to the ones in the defense position doing something between not working as hard to actively colluding against their clients.

    2. Because chief prosecutors are elected while chief public defenders (an unenviable job at times) are appointed by courts. You'd have to reformulate both offices so that somehow they would be together, which in and of itself would be a problem that anyone should be able to see off the bat, as there are massive conflicts of interest.

      1. >>anyone should be able to see off the bat, as there are massive conflicts of interest.<<

        I heard that before. I don't see it. Are you saying the Navy JAG operates with massive conflicts of interest?

        Yes the missions would need to be redefined. Instead of measuring DA success by convictions, it is measured by delivering justice just as the judicial branch is measured.

        The new JAG office could be part of the judicial branch instead of the executive. Once again, that mirrors the Navy's JAG that supplies prosecutors, defenders and judges.

        Specifically, what conflicts of interest?

    3. A lot of places don't even have a public defender's office, too. They have court-appointed attorneys, who are regular defense attorneys who are sometimes paid by clients and sometimes paid by the courts. They'd probably have a big problem with that system, as they'd lose a huge income source.

  5. Although the possibility of "mass criminality" was brought up in the first post in this series, I see that it was never actually addressed by the author. It was simply assumed in the second post that comparison to other countries was adequate to establish that the US incarcerates excessively, rather than proportionately to criminality.

    I accordingly note, as I did at much more length in the comments to the second post, that the number of people incarcerated relative to the intentional homicide rate in the US is well within the range of other G7 states.

  6. 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.

    It certainly won't last if we decide to release violent criminals earlier than we do now 🙂

    The cognitive dissonance is positively deafening. Leipold has shown throughout his five pieces that he is perfectly well aware of the argument that there is a causal connection between imprisoning violent criminals for longer, and lower levels of crime. He has not made any attempt to refute that argument. He merely notes it and moves on as if it had never been.

    And so in his conclusion he mounts his horse once again and charges the windmills of mass imprisonment as if he'd never heard of Fox Butterfield.

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