Politics & Policy

The War on Prosecutors

A guard escorts inmates at San Quentin state prison in San Quentin, Calif., in 2012. (Lucy Nicholson/Reuters)
Critics overestimate DAs’ role in ‘mass incarceration.’

Now that there’s a truce of sorts in the war on cops, the anti-incarceration Left has found a new enemy: your local district attorney. Progressive reformers still obsessing over so-called mass incarceration think that the best way to reduce imprisonment is to curtail the power of prosecutors’ offices. They believe that prosecutors caused the prison buildup and that DAs persist in maximizing incarceration even though crime is down. These critics are mistaken, and their proposals are unnecessary, risky, and misguided.

A new book by Emily Bazelon is typical of the anti-prosecutor genre. The title, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, is revealing. The book is a mix of polemic and illustrative cases, except that the two cases she places under the spotlight don’t prove her point. Neither case demonstrates that prosecutors caused mass incarceration or that they “have breathtaking power, leading to disastrous results for millions of people.”

In one of the cases, involving a young black man caught red-handed with an illegal handgun, the Brooklyn District Attorney’s Office showed great leniency, agreeing to divert an obviously guilty defendant. With diversion the charges are suspended for a year, then dropped after completion of a community-service program and no further arrests. While Bazelon pushes for a new, progressive type of district attorney, it was an old type of district attorney who set up and maintained Brooklyn’s diversion program 15 years ago.

Bazelon thinks that because the prosecutors could have charged the defendant under any one of three statutes, each carrying prison time — New York’s gun laws are strict but provide for fine distinctions — they have too much discretion. But that discretion is what enabled prosecutors to fashion a rehabilitative outcome.

In Bazelon’s second case, a brutal knife murder in Memphis, the prosecutor did go too far to obtain a conviction. She made an overly aggressive remark in her closing statement at trial, and the conviction was reversed on appeal. But this kind of error is not common, partly because trials are uncommon relative to plea bargains, so it could not have contributed much to mass incarceration. If anything, the case demonstrates the power of courts to check prosecutors.

Bazelon thinks that a progressive groundswell will usher in a slew of reformist prosecutors and fix the system. Unlikely. There are over 2,400 elected DAs in the United States, and only a handful of leftists may be expected to garner public support.

Another new book on the subject, Rachel Barkow’s Prisoners of Politics, is skeptical about the election solution. But Barkow goes much further than Bazelon; she wants to transfer the powers of local prosecutors to statewide agencies. This would diminish local control over criminal justice, an American tradition that provides responsiveness to community conditions.

More broadly speaking, the obsession of the anti-incarcerationists with prosecutors is misplaced. First of all, the incarceration buildup was a product of the beefing-up of the entire criminal-justice system, not just prosecutors. For instance, the number of prosecutors increased 58 percent from 1974 to 2001. But the number of full-time police rose nearly 95 percent for the same period, and it’s the police who bring offenders into the system.

The prosecutors didn’t cause the incarceration buildup; soaring crime and public demand for a more punitive criminal-justice system did. The continuation of the high incarceration rates after the mid-1990s, when crime began to fall, was due to the continuing fear, which was rational: Nobody knew if crime would rise again, as it had in the 1980s.

The further decline in crime in the 2000s has led to a contraction of the system. Imprisonment rates have been steadily falling and are now at their lowest point since 1997. Black imprisonment rates tumbled a whopping 29 percent between 2006 and 2016.

Moreover, if one examines the actual time served in prison, and not just initial sentences, one sees that the system is not overly punitive. For all prisoners released in 2016, the median time served was only 1.3 years; the mean was 2.6 years. For violent offenders the median was 2.4 years, the average 4.7 years.

Second, the work of prosecutors is caricatured by the reformers. They assume that prosecutors always seek the harshest punishments, threatening defendants with mandatory sentences in order to extract guilty pleas. In fact, however, prosecutors frequently evade mandatory sentences. The handgun case in Bazelon’s book is a good illustration of this. Numerous empirical studies prove that prosecutors commonly seek alternatives to mandatory sentences where they consider them unjustly harsh, or when defendants are cooperative in conspiracy cases.

Some of the critics’ reform proposals (Bazelon provides a long list) are certainly worthwhile. For instance, it makes a great deal of sense to encourage police to use crisis-intervention techniques and to divert mentally ill lawbreakers to treatment instead of arrest. Likewise, offering drug-treatment programs in jails would be helpful.

But modest improvements such as these are a far cry from some of the extreme proposals now being floated. You can bet that prosecutors, including the progressives, will vigorously oppose any reforms, such as review boards, that give outsiders a veto over office policy.

Barry Latzer is a professor emeritus at New York’s John Jay College of Criminal Justice and author of The Rise and Fall of Violent Crime in America. He is working on a new book titled “The Myth of Overpunishment.”

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