Until We Reckon by Danielle Sered

Author:Danielle Sered
Language: eng
Format: epub
Publisher: The New Press
Published: 2019-04-29T04:00:00+00:00

Reshaping the Power of U.S. Prosecutors

Substantially reducing mass incarceration will require demanding that prosecutors use their discretion to rely on jail and prison as a last resort, constrained by values of fairness and parsimony and only to the degree necessary to ensure safety. For instances of violence that result in arrest, no amount of building effective responses will matter unless prosecutors throughout the country become different kinds of partners in the overall effort to produce safety.

Prosecutors exercise an extraordinary degree of power and discretion in the criminal justice system.11 They decide whether to file charges against people who are arrested—and in so doing, they can increase, reduce, or dismiss the charges brought by police. Prosecutors have a leading role in determining bail, both through the recommendations they make at arraignment and through the charges they bring, which shape a judge’s determination. Unlike at trial, where the judge and jury are the decision makers, prosecutors retain the lion’s share of the power in the plea bargaining process—the process through which 94 to 97 percent of all cases are decided. This process is rife with racial disparities.12 What is more, the outcomes of this process are shaped by the bail the prosecutor had a hand in setting, given that people who are detained pending trial are more likely to accept a plea bargain.13 Disproportionately, these are poor people who cannot afford the cost of their freedom.

Prosecutors’ discretion can have a greater impact on incarceration rates than almost any legislative reform. But to put it mildly, prosecutors driving decarceration is still not the norm. Much of that has to do with politics, culture, and incentives—not just policy. Prosecutors’ offices and the public typically measure a prosecutor’s success—whether an elected district attorney or an entry-level assistant district attorney—by the number and severity of convictions and sentences he or she secures. Prosecutors’ practices will change substantially only if they define success differently and if their constituents join them in doing so. This includes prioritizing more nuanced results like fairness, parsimony, rehabilitation, and safety over the blunt outputs of lengthy sentences.14

This shift is not unthinkable, and in some places, it is under way. For instance, Law Enforcement Leaders to Reduce Crime & Incarceration, a group of more than 150 current and former law enforcement leaders, align around a platform that includes increasing alternatives to arrest and prosecution—especially diversion to mental health and drug treatment; restoring balance to criminal laws; reforming mandatory minimum sentencing laws; and strengthening community–law enforcement relations.15 Some prosecutors’ offices are taking the lead in embracing and implementing diversion programs across a wide range of charges.16 In 2017, voters elected new local prosecutors who ran on platforms that included the promise of reducing the overuse of incarceration in places including Illinois, Florida, and Texas.17 In 2018, Eric Gonzalez was elected Brooklyn district attorney with a campaign that promised the continuation and expansion of District Attorney Kenneth Thompson’s progressive legacy.18 Larry Krasner, a well-known civil rights attorney and public defender, was elected district attorney of Philadelphia on an unapologetic reform platform that same year.

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