The Growing Power of Prosecutors

An unintended consequence of mandatory minimums has been to concentrate too much power in the hands of prosecutors. Journalist Emily Bazelon talks about how some cities are pushing back.

Hope Reese | Longreads | May 2019 | 16 minutes (4,345 words)

In our current criminal justice system, there is one person who has the power to determine someone’s fate: the American prosecutor. While other players are important — police officers, judges, jury — the most essential link in the system is the prosecutor, who is critical in determining charges, setting bail, and negotiating plea bargains. And whose influence often falls under the radar.

Journalist Emily Bazelon’s new book, Charged, The New Movement to Transform American Prosecution and End Mass Incarceration, brings to light some of the invisible consequences of our current judicial system — one in which in which prosecutors have “breathtaking power” that she argues is out of balance.

In Charged, a deeply-reported work of narrative nonfiction, Bazelon tells the parallel stories of Kevin, charged with possession of a weapon in Brooklyn, New York, and Noura, who was charged with killing her mother in Memphis, Tennessee, to illustrate the immense authority that prosecutors currently hold, how deeply consequential their decisions are for defendants, and how different approaches to prosecution yield different outcomes. Between these stories, she weaves in the recent push for prosecutorial reform, which gained momentum in the 2018 local midterm elections, and the movement away from mass incarceration.

I spoke to Bazelon — currently a staff writer for The New York Times Magazine and cohost of the Slate Political Gabfest — on the phone, discussing problems with mandatory sentencing and what the public should know in order to make informed decisions when voting for their local D.A., among other subjects. This interview has been edited for length and clarity.

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Hope Reese: In the 80s and 90s, prosecutors began to hold much greater power in the judicial system than they previously had. You write that in the 30 years between then and now, Americans “first embraced punishment levels lower than Sweden’s, then built a justice system more punitive than Russia’s.” How did such a drastic increase in power occur?

Emily Bazelon: In the late 70s, crime starts to go up. Even before that you have a turn by politicians — starting with Barry Goldwater, then Richard Nixon, and then later Ronald Reagan — toward a very law-and-order fear-mongering platform, arguing that people who commit crimes need to be locked up for a long time. It’s pretty racialized rhetoric. The combination of fear actually rising and then the politicians capitalizing on it leads to much stricter sentencing laws. Part of this is just increasing the penalties, but part of it is mandatory minimum sentences.

The idea of this mandatory minimum sentence is that you’re going to take discretion out of the system by tying the hands of judges, right? Like if they have to give a certain sentence, then you won’t have to worry about a “softie” judge. The problem is, you can’t really take discretion out of the criminal justice system. It has to continue to live somewhere, and mandatory minimum sentences, even though no one really described it this way while it was happening, give discretion to prosecutors — because suddenly the charge determines the punishment.

And so the charging shifts power to prosecutors, and in addition plea bargaining, in a couple of ways. One way is that once you have mandatory sentences, it’s easier for prosecutors to force plea bargains, because they have so much more leverage. And another thing that happened basically simultaneously is that the criminal codes expand, so there are just more things to get charged with, and more choices of charges, so prosecutors can stack charges. And that also increases the penalty and increases leverage and basically makes the trial disappear in American law. You end up with what we have now, which is like a 2 percent trial rate in a lot of state court systems.

Do mandatory sentences lead to crime reduction?

Yeah, a little bit. I mean, there’s a lot of debate over what leads violent crime to fall in the United States, really more in the late 90s through the 2000s. The comprehensive big literature review by the National Academy of Sciences finds that increased sentences have what they call a best to modest effect on reducing crime. So in other words, you take people off the streets. You lock those people up. Those particular people are not going to be committing crimes outside of prison, and there’ll be some other people who are deterred, but I think the question that criminologists and really lots of people increasingly ask is: Is that modest impact worth the human cost?

Especially because there’s new studies showing that jail and prison are what’s called criminogenic. That’s like carcinogenic. Like, they actually cause crime in the medium to longer term. The idea is yeah, you lock people up in the shorter term, but almost everyone gets out — and when they get out, they tend to be more desperate, have a harder time getting a job, finding housing, and those things all correlate with being more likely to commit crimes afterward. I think at this point, most of these people would agree that American sentences are way out of proportion to what we need for deterrence, and in fact, are having a negative effect.

I could only find two instances in which two different prosecutors went to jail for a few days each, like in the whole history of prosecutorial misconduct.

You write about how prosecutor culture, which values confidence and speed over caution and delay, can be a problem for giving people fair chance under the law. How could we start to change that?

Yeah. So this has to do with the culture of prosecutors’ offices, how we train prosecutors, and what we tell them we value. On paper they have a dual responsibility. They’re supposed to win convictions and also be ministers of justice, but in practice a lot of prosecutors’ offices reward prosecutors for winning big trials and getting long sentences. As long as you have that kind of reward system in place, you’re valuing stricter punishment over second chances.

To change that you have to start recognizing people who are declining to charge someone, or for dropping the charges if the case is weak. Or for putting more people into alternatives to our incarceration program. It’s really changed how we define the job and how we define success of the job.

You describe the first steps of being charged, and how it’s often tricky with circumstantial evidence, illegal evidence-gathering, or police who aren’t issuing Miranda rights. You call this part of the “rotten foundation” that cases are often built on. How is this happening?

Well I think that there are a few things going on. One is just the problem of how much evidence prosecutors actually have to put forward. If you never have a trial, then your case isn’t going to be truly tested, and so you’re going to be able to assert a lot of things that may or may not be true without really being accountable for those facts. This is something that, to some degree, varies state-by-state, because some states have enacted better laws for sharing evidence early in a case with the defense, long before a trial. But it’s still an ongoing issue, and I think what you’re really seeing here is how the decline of the trial intersects with the lack of accountability for prosecutors.

Then I think the other kind of related issue I was writing about with Noura’s case is this problem of what people call tunnel vision or confirmation bias. Once the police have arrested someone, there’s an incentive to think that that’s the person who did it. It’s sort of normal human psychology to emphasize facts that confirm your pre-existing beliefs as opposed to challenging them.

How much is decided at the whim or discretion of prosecutors when it comes to determining the charge for a crime?

Well, I mean, prosecutors work closely with the police, so it’s not like they’re doing this themselves. But prosecutors are the people who bring charges. That’s their job.

So they bring charges — but they are also guaranteed immunity from repercussions, which is not the case with police. How did that happen, and what does absolute immunity actually mean in practice?

Absolute immunity comes from a Supreme Court decision called Imbler vs. Pachtman. Absolute immunity is unusual for government officials. The cops, for example, have qualified immunity. Absolute immunity means that if you can argue something you did, however bad, was in the course of doing your job, you cannot personally be sued for it. It’s like a very blanket protection, and so it has meant that it’s virtually impossible to sue prosecutors personally.

And then there’s sort of some problems compounding that rule. The Supreme Court in a later case called Connick vs. Thompson made it very difficult to sue a district attorney’s office, so then you have the whole office being shielded, absent a pattern or practice of misconduct, and then they made it really hard to prove the pattern of misconduct. And when the Supreme Court decided Imbler, they kind of reassuringly said, “Oh, don’t worry. A prosecutor who commits misconduct will be prosecuted him or herself.” But that doesn’t really happen. I mean, I could only find two instances in which two different prosecutors went to jail for a few days each, like in the whole history of prosecutorial misconduct.

And then the last piece of this is that the Supreme Court also said, “Oh don’t worry, because the bar, the legal profession, will discipline prosecutors.” But that is also very unusual, and I tell the story of a kind of failed disciplinary effort in Tennessee that I think shows the challenges for accountability from the bar.

We hear about racial profiling from police, but in your reporting, have you come across profiling when it comes to sentencing or being charged with crimes?

Well, there’s definitely racial disparity built into charging and plea bargaining offenses, and studies have shown that at every step along the way, African American defendants get worse deals for similar conduct. So yes.

Right. But, is it something we’re not quite as aware of?

Yeah. I think in general, the police, we all see the police in the streets. They wear uniforms. Judges also wear a kind of uniform. Right? They wear a robe. They’re very visible icons of justice, but prosecutors are just lawyers wearing suits and I think the things they do tend to be more hidden and more veiled in the kind of density and abstract nature of law. It’s complicated to understand all the legal interpreting of what they’re up to. So, I think that they’ve gone relatively unnoticed in the picture of how American justice has changed.

You write about how important bail can be, that it can shape the outcome of a criminal case. But we currently have a private bail industry that you argue is in need of reform. Can you explain what’s wrong?

The United States and the Philippines are the only two countries in the world that allow for-profit cash bail — so we’re outliers. But our whole system of what happens to you after you’re charged, but before you’re convicted, depends on paying bail in most states in the country. So, you get charged with a crime, you go before a judge. The judge can let you out, called getting released on your own recognizance, or they can set bail in some amount. For many crimes in many places, judges set bail.

If you can’t pay, then you’re being detained because you don’t have enough money. To me, when I think about it that way, it starts to seem very strange. That it’s really money rather than public safety or the risk of failing to appear in court that’s driving the system. Even if you set high bail because of public safety or a failure to appear, it is still true that people who are wealthy are more likely to get out than people who don’t have money.

Right. But some states, like Kentucky, have outlawed cash bail. And there’s actually evidence that people will generally return to court even if they haven’t paid the bail. Right?

Exactly. Kentucky and Washington, D.C., especially have had systems for decades where there’s a small fraction of people who are held in jail because they’re deemed to be a public safety threat, and then everybody else gets out and almost all of those people come back to court without putting any money down — which really shows us that our for-profit cash bail system is not necessary.

Study after study shows that people who are being held in jail, pre-trial, because they can’t afford bail, are more likely to plead guilty.

How is bail part of a kind of domino effect that can start to impact the way a whole case might go?

Study after study shows that people who are being held in jail, pre-trial, because they can’t afford bail, are more likely to plead guilty. And when you think about it, it’s pretty logical. If you want to go home, you have an incentive to just sign the paper. Okay, it’s a lower offense. I’m getting a deal from the prosecutor. Maybe I did it. Maybe I didn’t. I just want to go home.

It really zaps people’s willingness or desire or endurance to fight charges. If you think of, in a more simple sense, the purpose of bail and holding people pre-trial, it’s really to keep the wheels of the system turning, because plea bargains — and especially quick plea bargains — save everybody a lot of time and work. Meaning the lawyers and the judges.

And the bail companies also sometimes do monitoring and surveillance as well, right?

Yeah. We’re putting ankle bracelets on people when they’re out pre-trial to make sure they come back. In some states, they’re monitored by the court system, but it is true. There are privatized companies that are also providing pre-trial services. Then you have a way in which we’re turning another aspect of the system into a for-profit enterprise.

You write about the impetus to “keep guns off the street,” which I think many people would get on board with, in order to reduce crime and mass shootings. But do you see an unintended consequence of this goal?

Yeah. I do. I think that when liberals support gun control, we usually think of the importance of like tightening the loopholes for who can buy a gun and requiring permits. There are lots of reasons to support gun permitting, and evidence that it can reduce gun violence. But I don’t think we think enough about the other side of the coin — which is when someone doesn’t have a permit, then what happens?

In most states, or in many states, we fine those people. But, there are a few states like New York that have these very harsh prison sentences for possessing a gun even if you don’t have a criminal record. Even if you didn’t threaten anyone with that gun. First of all, you can see all the racial disparity it leads to. These are laws that are enforced in poor black neighborhoods. Predominantly black communities definitely want public safety and they want good policing and they don’t want guns, but they also want things like social services that we’ve shown prevent crime.

But, instead, we put people in prison. There’s this useful framework that comes from my friend James Foreman, who’s a Yale Law Professor who talks about these predominantly black neighborhoods getting the worst of both worlds. Both having the threat from the guns and then also having the solution be prison, as opposed to something that changes the circumstances of people’s lives and gives them a reason to not have guns that is different from being incarcerated.


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And jail before trial is associated with more future risk of crime. Not less. Right?

Exactly. So, again, in New York, you send young black men to prison for two or three years for owning a gun. They’re all gonna come back after that time and they’re gonna be less employable. They’re gonna have problems getting back into public housing if that’s where they live. It’s just, in my view, a destructive way of dealing with the issue. It’s a real issue, but what’s the response that really makes sense?

So, you talked earlier about how few cases actually make it to trial — but isn’t there a lot of bias in trials as well? In witness testimony and unreliability of memory? Do you think there would be better outcomes if there were more trials instead of plea bargains?

Well, I think there’s two different things going on there. You’re right about eyewitness testimony and the reasons we have to doubt that sometimes and to really make sure that we have these procedures in place that don’t lead people to make mistakes in identification. Making sure that lineups are really blind and that the police don’t take their hand when they show someone a bunch of photoshoots about who they think the suspect is. It is totally true we should guard against all that. At the same time, I think it would be better if we had more trials because that’s when the government really gets tested. If you never have any trials, then the cops and the prosecutors can get away with sloppiness or even breaking the law. Violating people’s constitutional rights — and they never get called on it.

For example, I’m working on a podcast right now that’s related to my book. One of the people in the podcast was arrested and there was a stop and frisk on video. So, I can see the cops stop him and the police report says that Turari’s gun was visible in his waistband. But when you look at the videos, Turari was wearing this baggy hoodie. There’s no way the police saw the gun. You can’t see the gun. So, maybe they had another reason to stop him. It’s possible someone tipped them off and told that he had a gun, but you’d want to get that tested at trial. The problem is, Turari was facing such a long prison sentence that rolling the dice on going to trial just becomes too scary. So, you take the plea deal.

Let’s switch gears and talk about the reform movement. You outlined two different approaches to reform in your book. Gonzales, who’s the consensus-builder and Krasner, the “barn burner.” Can you talk about how you see these approaches?

I don’t really think one is better than the other, because we just don’t know enough. They’ve neither of them been in office very long and in some cities, the barn burner model is gonna be necessary. You’re gonna come into and office where prosecutors who work there are hostile to the reformer who comes in and it’s hostile to the reformer who comes in, like a new CEO. Come into a company, you don’t have to keep everybody there. They’re not entitled to a lifetime sinecure, and if they’re not down with what you want to do, it makes sense to fire people. On the other hand, if you don’t need to do that, you have people who are supporting your vision, then that can work.

In Philadelphia, Larry Krasner came into a pretty hostile office, and in Brooklyn Eric Gonzales came into an office where, first of all, he was a career prosecutor so he knew everyone. And there was much more of a tradition of discretion with plea bargaining and trying to work with defense counsel, much more than in Philadelphia. Gonzales needed a survey and most of his lawyers said yeah, we support your vision, and so he has been able to make fewer changes and still start to get done what he wants to get done.

In a few years, when we look at these prosecutors’ records and use new yardsticks like reducing incarceration, and reducing racial disparity, and increasing diversion, or just having fewer cases, then we’ll be able to start drawing some conclusions about what’s more effective.

When people see the law as legitimate, they’re much more likely to abide by it and to help do things like solve crimes and be witness to these cases.

D.A.s have traditionally run unopposed, and incumbents have often won in the past. What’s changed in the last couple of years?

There were a few things. One is that there’s bipartisan support for a new kind of prosecutor, and this is partly just because this is something that becomes so costly, and this blew so far beyond necessary bounds, and I think a lot of fiscal conservatives are fed up with it.

And then, importantly, you have the Black Lives Matter movement, which starts out obviously with a main priority being police shootings of unarmed people, but then intersects with the civil rights groups, and starts to think okay, what can we really do to change the places we live in, and change the power structure? And electing the local district attorney in a city turns out to be a tangible thing that this movement can deliver to its constituents. These are local elections, you don’t need to have that many voters to change the person in the D.A.’s office. If you organize, this is a win. So you start to see that awareness leads to a lot of real grass roots, local surges.

Then the third element is the donor class. Some donors, like George Soros, have come in and really powered these local organizers by giving them money.

You write that there should be more of a balance of power between prosecution, defense, and judiciary. What would an even shift look like to you?

Well, I think there are two things. One is that state legislators could eliminate mandatory minimum sentences, and that would have a big impact in the defense, prosecutor, judge shift that we’re talking about.

And I also think prosecutors have to give up some of their own power, which is not something that people usually want to do. For example, prosecutors that share all the evidence as quickly as possible with the defense — that’s a way of trying to even the scales. A state can pass a law requiring that, and Texas has done that in the last few years. But prosecutors can also do that themselves, in their own offices.

For people who don’t know a lot about their local prosecutors, what are the important things to learn when they’re making a decision about voting?

That’s a great question. I think you want to ask which kinds of crimes does your prosecutor think area priority? Are they interested in, for example, increasing the rate of conviction for murders, which is of late 60%. Across the country we only solve 60% of the homicides. Or are they talking about being tough on people who possess marijuana, or jump the turnstile, or have a traffic violation, right? So where’s the priority in the office?

Do they think that mass incarceration is a problem? What are they interested in doing to address it? And how do they think race plays into this itself, and do they have concrete steps they want to take to try to prevent racial disparity and racism from affecting the work of their office? How do they talk about treating teenagers who have committed crimes or minor offenses, like do they believe in treating kids like kids or do they want to prosecute teenagers as adults? And another thing to ask is how they think that they can try to protect immigrants from detention or deportation by reducing charges in some cases?

Your voice comes through as an advocate for reform. Where do you stand with this balance between your journalism and advocacy?

That’s a great question. I don’t see myself as an advocate. What I mean by that is, it’s not my job to push for a particular outcome. It’s my job to report what I’m seeing, and help people make informed decisions about the kind of criminal justice system that is pragmatic and makes sense. I’m a pragmatist at heart, so my reporting always drives me, as opposed to trying to bend the facts to support some predetermined outcome.

I did end my book with 21 principles for new prosecutors because I think a lot of times books like this, it’s all about the problem and the stories are upsetting because they show the problem, and then you get to the end and you have this sense of despair. I didn’t want people to have that, especially at a moment when I actually think there’s a lot of optimism and a lot of very interesting thinking about how to change things.

So I wanted to put all of that out there to give readers a sense of exactly the question you asked. Okay, if you’re voting for a local D.A., how do you know that this person has a different, a new vision of the criminal justice system? I wanted to give people a way to answer that question. But I always see myself as a journalist and not an advocate.

How can we rethink our justice system to make it more fair?

I think that we’ve had this “tough on crime” set of assumptions for a long, long time. To counter it we need to rethink safety. Safety is always the goal, right? That everyone deserves to be safe, and communities want to be safe. The challenge is to argue and really show people that when people, and there’s evidence for this, when people see the law as legitimate, they’re much more likely to abide by it and to help do things like solve crimes and be witness to these cases.

I would argue that because our system has become so punitive, it’s lost the trust and legitimacy in the eyes of a lot of the people who are impacted by it. And if you could get it back, we would actually be safer. So showing people that safety and fairness are integral to each other, that is a really important role that these new prosecutors can play.

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Hope Reese is a journalist based in Louisville, KY. Her work has been featured in The Atlantic, the Los Angeles Review of Books, the Village VoiceVox, and other publications.

Editor: Dana Snitzky