This article is part of a roundtable about the authors’ coedited collection, Dismantling Mass Incarceration. Next week, we will publish a set of responses from progressive prosecutors, scholars, and activists, followed by a concluding essay from Dharia.
In the popular imagination, lawyers argue each side of an issue, while the judge or jury makes the decision. But when we worked as public defenders, we learned that prosecutors were often the true power brokers: They chose what charges to bring, how much discovery material to provide, and whether to offer a plea bargain. And we believed they often used their authority for ill, standing as barriers between our clients and justice.
What we were seeing was just one small part of a national phenomenon, as criminologist John F. Pfaff explores in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. Pfaff calls attention to the vast, unchecked discretion that prosecutors enjoy in our criminal system. After police make an arrest, prosecutors decide whether to file charges—and courts have repeatedly held that judges lack the power to second-guess this decision.
Legislatures have been complicit, largely outsourcing the question of punishment to prosecutors. They’ve done so by criminalizing a wide array of overlapping conduct—a single armed robbery often allows a prosecutor to charge not only armed robbery but also aggravated assault, theft, unlawful possession of a weapon, and so on. One event can thus give rise to dozens of charges, any of which the prosecutor can choose to bring or not. Because the maximum penalties for each offense are often severe, prosecutors can use them as cudgels to force a guilty plea: Instead of going to trial and risking a draconian sentence, defendants feel tremendous pressure to plead guilty to a lesser offense. And plead they do: Data show that 98 percent of people charged in federal court pled guilty in 2020, with the percentages in state court not far below.
What does the Supreme Court think of this? In Bordenkircher v. Hayes (1978), it essentially gave prosecutors free rein to wield their discretion as they see fit. In Bordenkircher, Paul Hayes was indicted for forgery amounting to $88.30. The prosecutor offered…
I’ve been hollaring most of these points for several years now, starting with an article on Justia that summarily claiming (or calling for, I’m not sure) that the responsibility for providing for a fair trial is (or should be) on the state. I vehemently disagrees, believing then and now that said responsibility should be on the courts. It should stand to reason that when a prosecutor’s effectiveness and capabilities are measured in terms of crimes convicted and years sentenced, his idea of “fair” would become rather skewed.
Of course, the fly in that ointment is the reality that judges don’t run the court system anymore – the DAs office does. If doubting, go to any given criminal court clerk and peruse the records. I’d bet my left nut that at least 98% of every document signed by a judge will have a “Prepared by (DA)” block at the bottom of the last page. And I’d bet the right one that the judges that signed them didn’t read any of them beyond their signature block, essentially giving the DA the ability (even power, in some places) to rule and write opinions. That’s pretty far from the constitutional right to have crimes and grievances settled by impartial magistrates, in my opinion.