Meet the Criminal Justice System’s Most Powerful Actors

Our criminal justice system is broken.  America has the highest incarceration rate in the world with 2.2 million people in its prisons and jails.  The quality of justice that a person receives more often than not depends upon his or her income – whether, for example, he or she can post bail or pay for an attorney.  Public defenders carry huge caseloads and often don’t have investigators or other resources to provide a zealous defense. Since 1989, 2,218 innocent people have been exonerated after being wrongfully convicted. And the system is fraught with unwarranted racial disparities at every step of the process from arrest to sentencing.

The causes of the many problems in the criminal justice system are varied and complex, but research shows that discretionary decisions by criminal justice officials play a significant role.  Legislators pass harsh sentencing laws (with penalties much lengthier than sentencing laws in other Western countries), police officers engage in racial profiling, and judges often care more about efficiency than justice.  But the most powerful official in the criminal justice system who makes the most critical decisions that often lead to unjust results is the prosecutor.

The power and discretion of prosecutors cannot be overstated. They essentially control the criminal justice system through their charging and plea bargaining decisions. These decisions are arguably the most important ones by any criminal justice official, and prosecutors make them behind closed doors with no accountability. A police officer may arrest an individual if the officer has probable cause to believe that person has committed a crime, but only prosecutors decide whether an individual will be charged. Prosecutors may accept or reject the recommendation of the arresting officer. Prosecutors may bring more or less serious charges against the individual. But they are not required to charge an individual even if they have probable cause to believe the person has committed a crime. The decision to charge is totally within their discretion.

The charging decision has tremendous consequences for an individual accused of a crime. Because there is a proliferation of criminal laws in both the federal and state criminal justice systems, prosecutors have a wide range of options when making decisions. For example, if a police officer arrests an individual who is in possession of 10 bags of cocaine,  the officer may recommend that the prosecutor charge the individual with possession with intent to distribute cocaine — a felony that carries a mandatory minimum penalty of 10 years in prison in some jurisdictions. The prosecutor may accept the officer’s recommendation or may decide to charge the individual with possession of cocaine — a misdemeanor with a maximum penalty of one year. The prosecutor may also decide not to charge the individual at all. The ramifications of this decision are far-reaching and permanent. If the prosecutor brings the felony charge, the defendant not only faces the possibility of at least 10 years in prison, but may also be saddled with a felony conviction and all of its associated collateral consequences upon release.  These consequences may include difficulty securing employment, losing the right to vote, and losing eligibility for public housing and benefits, among others. If the defendant is not a citizen, he or she may face deportation.

Despite the importance of the charging decision and its life-changing consequences, prosecutors are not required to explain or justify their decisions to anyone (other than possibly their supervisors), nor are they required to follow rules or guidelines when making these decisions. The charging decision is not made in open court, nor is there any public record of why or how the decision was made. These decisions are made in the prosecutor’s office, without any transparency.

Prosecutors also control the plea bargaining process. Plea bargaining involves prosecutors making deals with defendants that permit them to plead guilty to a less serious charge in exchange for the prosecutor agreeing to dismiss the more serious charge or charges.  In theory, plea bargaining may be beneficial to the defendant, the prosecutor, and the entire court system. The defendant is not facing conviction on all of the charges, the prosecutor is guaranteed a conviction, and the court saves the time and resources required for a jury trial. The reality, however, is that plea bargaining is frequently an unfair and one-sided process. Like the charging decision, it is controlled entirely by the prosecutor. Prosecutors are not required to offer a plea bargain, and they are not required to justify the decision to anyone. Judges may not compel prosecutors to offer a deal, and in most jurisdictions judges are not involved with the plea bargaining process at all.

Prosecutors need only meet the very low standard of probable cause to bring charges against the defendant. However, to convict the defendant of those charges at a trial, prosecutors bear the much heavier burden of proving guilt beyond a reasonable doubt. Because they only have to meet the low probable cause standard, prosecutors frequently bring charges they know they may not be able to prove beyond a reasonable doubt. When facing an overwhelming number of charges, each of which may carry a long prison term and/or mandatory minimum sentence, defendants often feel pressured to plead guilty. Going to trial is risky  because the defendant doesn’t know what a judge or jury may decide, regardless of the strength or weakness of the evidence. Imagine a defendant charged with five drug offenses, each carrying a mandatory minimum sentence of 10 years. If that defendant goes to trial and is convicted of all five charges, he will go to prison for 50 years. If the prosecutor offers to dismiss four of the charges in exchange for the defendant’s guilty plea to one, it is easy to see how even an innocent person might plead guilty. And most people do. Ninety-five percent of all criminal cases are resolved with a guilty plea.

In addition, the overwhelming majority of criminal defendants are indigent and represented by overworked court-appointed attorneys with few or no resources to investigate their cases.  Defendants sometimes plead guilty in cases where they may very well have prevailed at trial, simply because their lawyers do not have the time or resources to mount an investigation that might reveal weaknesses in the government’s case and/or a defense to the crime. Prosecutors often increase the pressure on defendants by placing arbitrary deadlines on plea bargains, requiring the defendant to accept or reject the plea by a certain time or risk losing the deal. This puts defense attorneys in the unethical position of advising their clients about a plea offer before they have had the opportunity to investigate the case to determine whether there is a defense. Under these difficult circumstances, it is not surprising that so many defendants plead guilty. The alternative is just too risky. This is what passes as justice in America every day.

Prosecutors could make a big difference in improving our broken system if they made fairer charging and plea-bargaining decisions.  Prosecutors could choose not to bring charges in cases involving minor offenses, instead permitting the defendant to perform community service, do restitution and/or participate in needed treatment programs.  They could stop requesting that poor defendants be held in jail for minor offenses simply because they can’t post bail. They could ask for alternatives to incarceration in appropriate cases. So why don’t they? Because we don’t hold them accountable.

Ninety percent of all criminal cases are prosecuted on the state and local level, and prosecutors are elected officials in all but four jurisdictions (New Jersey, Alaska, Connecticut, and the District of Columbia).  And yet, as James Forman Jr. noted in his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, most of our attention is focused on federal legislation and executive orders from the Oval Office instead of the many and much more important decisions that take place at the local level.  Unfortunately, most people don’t pay attention to local prosecutor elections. Prosecutors frequently run unopposed and some serve for decades without a challenger. On the rare occasion when they are challenged, they have all of the advantages of incumbency and are difficult to unseat.

We must hold prosecutors accountable by becoming more involved in  elections. We must become more informed about the duties and responsibilities of prosecutors so that we are equipped with the necessary information to ask questions and demand responses.  Because prosecutors have so much power, if we elect people who are committed to fairness and racial justice, they can make substantial progress toward reforming the criminal justice system.

According to the Supreme Court, the prosecutor’s duty “is not that it shall win a case, but that justice shall be done.” In recent years, a number of progressive prosecutors who understand this duty have been elected in jurisdictions across the country. These individuals are committed to using their power to reduce the incarceration rate and the many unwarranted racial disparities in the criminal justice system.  Prosecutors like Kim Foxx in Chicago and Larry Krasner in Philadelphia campaigned on themes of racial justice and reducing incarceration and won their elections. Each of them has made important policy decisions that have already begun to make a significant difference. For example, Krasner instructed his prosecutors to make plea offers to defendants that include proposed sentences below “the bottom end” of the sentencing range for each crime. Foxx stopped prosecuting misdemeanor driver’s license offenses and raised the bar for charging felony retail theft offenses to $1,000 from $300, drastically decreasing the number of retail theft cases. Their successes have inspired others who are committed to racial fairness in the criminal justice system to run for office.  Many, such as Genevieve Jones-Wright in San Diego, whose platform includes significant reform of the cash bail system, are running this year.  If this trend continues, perhaps the democratic process can work to effect change. If those of us who care about fairness and racial justice work to elect progressive prosecutors and hold them accountable, with time and hard work, we can fix this broken criminal justice system.