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How bad prosecutors fuel America’s mass incarceration problem

Want to fix the criminal justice system? Start with overzealous prosecutors.

Inmates are lined up in Madrone Hall at the California Institution for Men in Chino, California, on May 24, 2011.
Inmates are lined up in Madrone Hall at the California Institution for Men in Chino on May 24, 2011.
Ann Johansson/Corbis via Getty Images

There are a lot of reasons why America’s criminal justice system is broken, but if Emily Bazelon is right, one of the biggest is overzealous prosecutors.

A legal reporter for The New York Times magazine, Bazelon explores the near-unregulated power of American prosecutors in her new book, Charged. It’s a deeply reported look at a failing justice system that does not function the way most people think it does.

We have this idea of a legal system in which prosecutors and defense lawyers are equal, with dispassionate judges presiding over everything. But Bazelon argues that this balance has been lost over the past several decades.

Now prosecutors wield limitless power, deciding whom to charge, who gets a second chance, and, in some cases, who lives and who dies. If there’s an underreported piece of the mass incarceration puzzle, Bazelon says this is it.

A lightly edited transcript of our conversation follows.

Sean Illing

Can you explain the problem of “prosecutorial overreach” for people unfamiliar with how the justice system works? How much latitude or power do prosecutors actually have?

Emily Bazelon

Prosecutors have a lot of latitude because of the way the country responded to a rise in crime in the 1980s, and also because of fearmongering that really began with Richard Nixon in the ’60s and ’70s.

One of the main tactics in the ’80s was to pass mandatory minimum sentences [laws requiring a minimum amount of jail time for designated crimes, regardless of context]. The idea was that they would take discretion out of the system, tie the hands of soft judges, and just make the whole system more consistent and fair, because everyone was supposed to be getting the same punishment.

But you can’t take discretion out of the criminal justice system — it’s just not possible.

What we didn’t talk about, or even realize, was that mandatory minimum sentences turn the punishment into the charge. Charging is the job of prosecutors. Judges are not involved in that at all. That gave prosecutors a new role and a new kind of leverage. They use that leverage to induce more and more plea bargains, so you see plea bargaining go way up around this same time. We’re now at a point where, in a lot of state court systems, more than 95 percent of convictions are obtained for plea bargains.

Then you also see the choice to bring felony charges double in this time, when mass incarceration is dramatically rising in the ’90s and early 2000s. So prosecutors have been given an enormous amount of power.

Sean Illing

How much of our mass incarceration problem is due to bad or overzealous prosecutors?

Emily Bazelon

It’s hard to put an exact figure on it, but I think overzealous prosecutors are playing an underappreciated role, because they’re the ones who have the power to hand out these huge penalties and they’re wielding that power more and more. They’re even being rewarded for using their power in this way.

Sean Illing

What do you mean by that? How are they rewarded?

Emily Bazelon

For example, I write about the prosecutor’s office in Memphis in the book. They have this thing called the “Hammer Award” for prosecutors who win big trials or heavy sentences. So what they’re doing is lining up the incentives so that prosecutors are pressured to think less about what’s actually fair or sensible and instead obsess over winning trials and getting massive sentences.

Sean Illing

In the book, you say we have this fairly simple model of the trial process that goes something like this: Defense lawyers and prosecutors are equal combatants in the courtroom, and the judge is the dispassionate decider presiding over the trial.

How does the system actually work?

Emily Bazelon

Yeah, that’s a classic American criminal justice image. I use this idea of a triangle to illustrate what I’m talking about. When you give prosecutors the power to bring such heavy charges, and you basically give them unfettered discretion in charging and plea bargaining, you make them the key decision-makers throughout the criminal justice process.

It starts with charging; then it moves to bail. Judges set bail, but the demands that prosecutors make for bail are the most influential factor in the minds of judges. We know this. That’s what matters the most. It’s like judges don’t want to take the political risk of letting someone go. Remember, we’re talking about people who are presumed innocent here.

So you see prosecutors wielding this power with charging and plea bargaining. You see a shift from the judge as the neutral referee, whose job it is to be fair and even-handed — that person is no longer making the key decisions.

Sean Illing

Can you give one of the examples from the book of a prosecutor recklessly wielding his or her power?

Emily Bazelon

Early on, when I was reporting in Brooklyn, I was in gun court, this specialized court for gun possession, and in New York, prosecutors have a huge menu for how to charge gun possession. It can be a serious, violent felony with a three-and-a-half-year mandatory minimum, or it can be a misdemeanor.

There was this 19-year-old kid, and he’d been facing gun charges for a year. The case was playing out. In the meantime, he’d really gotten his act together. He’d gone to this pipe-fitting class. He was about to get credentialed. The judge says to the prosecutor, can you drop this charge down from a felony to a misdemeanor, because I don’t want to send this kid to jail? The prosecutor said no. The answer was no. The kid went to jail.

Sean Illing

Are there any mechanisms to hold prosecutors accountable or check their power when they overstep their bounds?

Emily Bazelon

Not really, or certainly not enough. In the ’70s, the Supreme Court made prosecutors absolutely immune from lawsuits. But being absolutely immune to suit means that there’s no check from the civil law system on prosecutorial abuses.

The Supreme Court said at the time, “Oh, don’t worry, because if a prosecutor hides evidence or makes something up, and puts someone in jail who’s innocent, another prosecutor will come along and prosecute the first bad prosecutor.” That just does not happen, or it’s incredibly rare.

Then the Supreme Court also said, “Oh, don’t worry because the legal profession will police prosecutors. They’ll take the bar cards away of prosecutors who do bad things.” But that’s obviously not an effective system.

Sean Illing

It seems like prosecutors occupy a weird space between law enforcement officer and politician, which creates terrible incentives for the people occupying these offices.

Emily Bazelon

I think that’s a really good way to put it. They’re both cloaked in the authority of law enforcement and responding to political pressures at the same time. Traditionally, being a prosecutor or DA [district attorney] has meant that you run for election by being as “tough on crime” as possible. You brag about your high conviction rate. You point to the high-profile murder case in which you got the death penalty. For years in America, you couldn’t lose if you did those things.

Sean Illing

Part of the problem here is that so much turns on the good faith of the prosecutor, which means luck plays far too large a role in the system.

Emily Bazelon

That’s true. It’s also true that so much turns on the good faith of the prosecutor in an incentive structure in which the prosecutor holds way too many of the cards. For example, think about the rules for disclosing evidence. This just blows my mind. The prosecutor gets all the evidence from the police. They look at it. They have a constitutional obligation before a trial to turn over anything that could help you prove your innocence. If they don’t do that, most likely no one will ever find out.

Most of them take this ethical obligation really seriously. But there is no actual check in the system that’s effective on their power. We more or less just rely on them to do the right thing. Again, that just doesn’t seem like the most efficient system.

Sean Illing

An interesting angle to all this is how impenetrable the bureaucratic machinery of the justice system can be. Often, you have well-intentioned laws unfolding in predictably tragic directions. And I’m not sure there’s any solution to this that doesn’t involve even more prosecutorial discretion, which of course just creates the space for even more overreach.

Emily Bazelon

That’s the fundamental tension. There’s a national movement to elect new kinds of DAs that try to harness the prosecutor’s power to reduce incarceration and increase fairness. I don’t think things really change until prosecutors give up some of their power.

Then, ultimately, you have to have state legislators take away some of this power by repealing things like mandatory sentences. That is not yet really happening in America, certainly not for anything other than low-level marijuana offenses.

So the optimistic take on this is that these new DAs can come in and really reform the system, and people see that cities are healthier and flourishing, and crime remains down, and public safety and public satisfaction goes up, and then maybe we’ll convince the legislatures to act statewide. But we’re just not there yet.

Sean Illing

I want to raise an objection that some skeptics will doubtless have. People will look at the reduced crime rates after those “tough on crime” laws you mentioned above were passed, and then conclude that they’re responsible for the drop in crime and thus justified.

How do you respond to that?

Emily Bazelon

While people are in jail or prison, they don’t commit crimes outside of jail or prison. Criminologists refer to this as “incapacitation,” and it’s also true that some people are deterred from committing crime by the threat of going to prison. Some resources say that a combination of incapacitation and deterrence might be responsible for a third of the drop in crime since the ’90s. I think that’s a little up for debate, but surely it’s part of the story.

The thing is that we are so far past that point now that it’s almost not relevant. At this point, what we’re talking about is the increased deterrence effect of having a sentence of, like, 10 years versus five years, right? We’re not talking about whether to send people to prison at all. We’re talking about these very long sentences we’ve got in the United States.

It’s just really hard to argue that those long sentences are necessary for deterrence, especially when you start talking about the way in which imprisoned people are more likely to commit crime when they come out.

Sean Illing

You claim that prosecutors also “hold the key to change.” How can they smooth out all the asymmetries in this system?

Emily Bazelon

It definitely starts with local voters. When local voters rise up and decide that they don’t want a “tough on crime” DA, and they elect someone who comes in and says, “You know what, I’m going to decline prosecuting all this low-level nonsense. I want to concentrate my resources on putting people who committed murder in prison, and in solving homicides.”

One of the most shocking statistics to me about law enforcement in the United States is that we only solve 60 percent of murders nationally. In some cities, the rate of solving shootings is in the teens or 20s. We’re just talking about a lot of scary violent crime where we don’t find the person who did it. A lot of the reason for that is people in these communities don’t trust law enforcement. They’re not going to call the cops. They don’t want to show up as witnesses.

When we have this overincarcerating system, we become less legitimate in the eyes of the people who are impacted. If you lose their trust, then people don’t follow the law as reliably, and they don’t help you solve crimes.

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