The keys to our mass incarceration crisis -- and who holds them 

Friday, August 12, 2022
Mass incarceration in the United States has ballooned over the last 30 years. Although the United States has only 5% of the world’s population, it has 25% of the world’s prison population. There are five times as many people incarcerated today than there were in 1970. This rise in mass incarceration is a result of decades of “tough on crime” policies, mandatory minimums and harsh sentencing practices leading to the growth of the prison industrial complex.  
Given this data and an increasing public interest in reform, the role prosecutors play in contributing to mass incarceration is being examined more and more. 

A losing strategy: Growing incarceration doesn’t reduce crime 

Prosecutors are charging at higher rates than ever, even as arrest rates and overall prosecution numbers have fallen in the past 15 years. A recent study from the Southern California Law Review found that from 2006 to 2018, the number of arrests per year in the United States dropped by 28.3%. However, over the same period, the number of criminal filings by prosecutors only fell by 21.3%. This shows that prosecutors chose to file charges in a greater share of the arrests referred to them. 

What caused the decline in crime rates? A report from the Brennan Center for Justice analyzed over 40 years of data gathered from all 50 states to try and answer this question. In short, no one is quite sure, but the report did conclude that overly harsh criminal justice policies, including incarceration, were not the main drivers of the decline in crime. It found that increased incarceration has been declining in its effectiveness at controlling crime for over 30 years. The research also showed incarceration becomes less effective the more it is used, and current incarceration rates have reached a point where the crime reduction effect is negligible. The report stated that programs that improve economic opportunities, modernize policing practices and expand treatment programs could be a better public safety investment than resorting to incarceration.  

Lots of power, little accountability  

The United States is the only country in the world that elects its prosecutors. The prosecutor is only accountable to the people in a county’s electorate – the mayor, attorney general or even the governor can’t tell the prosecutor what to do. This gives prosecutors a tremendous amount of discretion with little accountability.  

Prosecutors are also almost always reelected. About 70% of prosecutors run unopposed.  
Election cycles can often change the incentives for prosecutors as well. A Harvard study found some evidence that prosecutors pursue crimes and longer sentences at higher rates in election years to avoid the perception of being soft on crime.  

Plea bargaining 

It is impossible to discuss the relationship between prosecutors and a rise in mass incarceration without examining plea bargaining. Currently only about 3% of criminal cases involve jury trials, with the other 97% resulting in a plea bargain. A plea bargain is when the prosecutor offers a lower charge and/or a more lenient sentencing recommendation to the defendant in exchange for a guilty plea.  

Prosecutors have most of the power in plea bargaining as they decide what initial charges to press and what lower charge they are willing to settle for. A prosecutor could pursue a charge with a long minimum sentence to gain leverage in plea bargaining as a defendant is more likely to agree to the bargain when the punishment is reduced significantly. Trials are risky, and defendants might not be willing to go through the process when they have the chance to take a reduced sentence.  
Despite fewer people being arrested, prison populations have swelled in large part because prosecutors have increasingly chosen to seek the most punitive possible charges with the longest sentences for crimes that would have previously been charged as low-level offenses. 

Outnumbered and outspent 

On the public defenders’ side, limited time and money might compel an attorney to push for a plea bargain rather than go to trial. Nationwide, there is a huge disparity between the funding available to prosecutors and to public defenders. According to Department of Justice data from 2007, prosecutors in all states had a total budget of $5.8 billion and defenders had a budget of $2.3 billion. This DOJ data also showed that in the same year, there were over 25,000 prosecutors but only 15,000 public defenders. This imbalance drives mass incarceration and causes pervasive injustice across the court systems in America.  

Changing the incentives 

Some cities and states are finding new ways to change the metrics of success and hold prosecutors accountable for the costs of the punishments they seek. Americans pay billions of dollars per year in taxes to maintain state prisons. Though state governments foot the bill, county prosecutors play the most active role in sending people to prison. In turn, prosecutors also have the most power to divert people from prison.  
In Philadelphia, the district attorney is requiring the prosecutors in the office to justify the cost of a prison sentence before asking taxpayers to foot the bill. Ohio is testing a program where participating counties pay a penalty for every person they send to prison for certain low-level felonies. Counties receive state money to develop community-based solutions instead.

A program in Illinois asks counties to agree to reduce prison populations by 25% for a target population, such as those with mental illness or those suffering from drug addiction. If they fail to hit these targets, the county then pays a fee. 

Prosecutors hold one of the keys to solving our mass incarceration crisis and the ballot box is currently the only way to hold them accountable. The choices they make play a huge role in people’s lives and we should use our votes to show our values and create pressure to change. It is essential to elect reform-minded prosecutors who commit to reducing incarceration and increasing alternatives that are more effective at preventing future crime and improving community health and stability.  

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