The Road to Ending Mass Incarceration Goes Through the DA's Office

AP Photo/Sean Rayford, File

A guard tower stands above the Lee Correctional Institution, a maximum security prison in Bishopville, South Carolina. 

By Emily Bazelon
Random House

This article appears under the title "Prosecutors Against Mass Incarceration?" in the Spring 2019 issue of The American Prospect magazine. Subscribe here

If anyone still thinks American criminal justice is a matter of jury trials, constitutional rights, and adversarial justice, this book should disabuse them of all that. The reality is that millions of defendants—largely indigent, minimally represented people of color—acquiesce to plea deals proffered by busy prosecutors with little time for individualized justice. And although copping a plea enables defendants to avoid the delay and increased penalties they risk if they go to trial, their punishments are markedly more severe than those imposed in Canada or Europe and much higher than in the United States 40 years ago. Mass incarceration is the name we give to the cumulative result.

Prosecutors have always been key players in criminal justice, especially in America, where their powers are subject to little oversight. But today their control of case outcomes is unmatched and largely unchecked. Prosecutors bring charges, propose bail, shape plea deals, and specify penalties with little effective resistance from defense attorneys, grand juries, or judges. The district attorney’s office has become the nerve center of the penal state, the place where the ideals of American justice are translated into the realpolitik of penal control. While prosecutors are supposed to play a dual role—advocates for “the people” as well as impartial ministers of justice—for as long as anyone can remember, all the political pressure has pushed toward the former.

This shift in the balance of power has been under way ever since America became a high-crime society in the late 1960s. The move away from rehabilitation, the spread of mandatory penalties, the creation of new categories of crime, and the priority given to public safety over offenders’ rights—these all increased prosecutors’ leverage and incentivized them to use it aggressively. American sentencing was once a multistep process, involving prosecutors, judges, juries, parole boards, and prison administrators. Today, prosecutors have become the dominant actors, disposing of cases with the stroke of a pen.

Prosecutors do their work behind closed doors, with little public accountability other than to grand juries (who are little more than rubber stamps) and periodic elections (that are mostly uncontested). And they have discretionary power to bring any charges that the law allows and the facts support. Given the interpretive latitude enabled by our duplicative criminal-law codes, any wrongful act can give rise to multiple charges and penalties of varying seriousness. In New York, shoplifters can be charged with misdemeanor theft, felony theft, or even burglary (if they were previously barred from the store, or reached behind the counter without permission), exposing them to punishments ranging from a few months’ probation to seven years in prison. A burglary that involves no actual violence can be charged as a violent felony carrying a mandatory minimum prison sentence of 42 months (and a 15-year maximum) on the theory that the burglar might have encountered someone inside. This loose relation between wrongful acts and criminal charges allows prosecutors to pile on charges and negotiate from positions of strength. Is it any wonder that between 95 percent and 98 percent of convictions result from guilty pleas?

Mass incarceration was never a planned policy goal or an articulated strategy. It is, instead, the cumulative result of four decades of tough-on-crime laws and practices adopted all across the nation: a long-term buildup that has left America with the world’s highest rate of incarceration, largely targeted on lower-class blacks and Latinos. Given the many moving parts that produced this outcome, there is much blame to go around and critics have pinned responsibility on everyone from Nixon and Reagan to Bill and Hillary. Some even blame Lyndon Johnson for abandoning social-policy programs in the face of conservative opposition and for increasing federal funding for law enforcement. More-balanced accounts point to public concern about criminal violence, including in minority communities where the body count was worst, and to America’s tendency to deal with social problems using penal controls rather than welfare provision.

Blame is easy; reversing mass incarceration will be hard. The War on Drugs has been scaled back, reducing racial disparities in imprisonment; felon disfranchisement is being reversed, most notably in Florida where nearly 1.5 million people recently regained their votes; the Ban the Box movement has reduced employment discrimination against former felons; the First Step Act, passed with bipartisan support, has eased some mandatory sentences and early release from federal prison; and dozens of states have passed laws designed to reduce imprisonment. Since 2008, the nation’s prison and jail population—which peaked at a daily total of 2.3 million, with an annual flow of 12 million admissions and releases—has shown moderate declines. The relentless, year-on-year increases of the prior 35 years suddenly appear to be a thing of the past.

But no one believes existing trends will “end” mass incarceration. At this rate, it would take 50 years to reduce the prison population to 1980 levels, which were already historically high. To downsize to Canada’s current rate, the United States would have to release 1.8 million inmates. What will happen when crime rates spike again, as they surely will? And how much bipartisanship will there be when the prospect of reducing public expenditure on imprisonment— which brought the Koch brothers and Grover Norquist together with George Soros and Barack Obama—gives way to the realization that large-scale welfare programs will be needed if we decarcerate millions of inmates and resettle them in low-income communities?

Nevertheless, now is a time for action. Large-scale crime reductions—murder rates are now at a 50-year low—have reduced public fears and opened up political possibilities. Prosecutors and judges no longer face intense pressure to lock offenders up and throw away the key. The human and fiscal costs of mass incarceration have become visible and salient. States such as New York—which reduced its prison and jail populations by more than 50 percent between 1993 and 2016, while the number of murders fell by 75 percent—have demonstrated that it is possible to reduce incarceration without experiencing any increase in crime.

Meanwhile, Black Lives Matter activists, aided by Michelle Alexander’s critique of mass incarceration as The New Jim Crow, have put penal reform firmly on the Democratic Party agenda—to the discomfit of figures such as Hillary Clinton, Joe Biden, and Kamala Harris, who are paying a price for prior policies that are now sharply at odds with progressive sentiment.

Emily Bazelon’s book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration is located squarely within this new space. Bazelon highlights the relationship among prosecutors, over-imprisonment, and racial injustice, describing prosecutors as “the missing piece in the mass incarceration puzzle” and insisting, in the words of one of her sources, “Mass incarceration is made or broken by a bunch of assistant DAs and their supervisors and the decisions they make between 10am and noon.”

The premise of the book is that prosecutors have the power to steer the system toward a more equitable, temperate, and racially conscious criminal justice. They can use diversion programs rather than jail, charge with restraint, plea-bargain fairly, end cash bail, treat drug addiction as an illness and kids as kids, establish conviction review, expunge criminal records, and utilize data and cost-benefit analysis to improve decision-making. The book celebrates the election of reform-minded district attorneys such as Ken Thompson and Eric Gonzalez in Brooklyn; Larry Krasner in Philadelphia; Kim Ogg in Harris County, Texas; Mark Dupree in Kansas City; and Kim Foxx in Chicago.

A staff writer at The New York Times Magazine, Bazelon offers us in-depth accounts of two contrasting cases that highlight the power of prosecutors to seal defendants’ fates. The first concerns Kevin, a 20-year-old from Brownsville in New York City, who was arrested when he tried to hide a friend’s gun from the police, making him liable to a range of “criminal possession of a weapon” charges and to lengthy terms of imprisonment. Unlucky in other respects, Kevin had the good fortune to be assigned a persistent, effective lawyer, courtesy of the Brooklyn Defender Services. She begs, cajoles, and eventually persuades an assistant district attorney (ADA) to take a chance on Kevin and send him to a program rather than to prison—though Kevin’s circumstances are such that he struggles to complete the program and more than once comes close to being incarcerated. The second tells the story of Noura, a young, middle-class woman from Memphis who was convicted of murdering her mother and who, many years later, was shown to have been wrongfully convicted by an overzealous prosecutor who withheld exculpatory evidence.

These real-life narratives give immediacy and human interest to Bazelon’s tour through the criminal process. Her journey introduces readers to hearings and charging processes; inequitable cash bail and extortionate bail bond companies; “gun court”; diversion programs; “offender-funded justice”; life inside a women’s prison; and assorted other hazards in the drawn-out ordeal that awaits defendants in the months and years following their arrest.

Bazelon is a reliable guide to crime-control politics as well as to criminal procedure. She explains why increased punishment is so often the political path of least resistance, why the system’s impacts are so racially patterned, and how—in a remarkable reversal that no one predicted—criminal violence has declined in recent years, making our cities safer and opening up opportunities for reform.

Bazelon’s case histories show state power being used for good and for ill, depending on the choices of line prosecutors and the culture of their DA’s office. Kevin’s story features a Brooklyn ADA who refrains from using the heavy artillery of criminal justice normally deployed to crack down on weapons offenses and instead offers him “diversion,” thereby rescuing him from incarceration and a lifelong criminal record. Noura’s story recounts how the DA of Shelby County, Tennessee—an old-line, hard-charging prosecutor—ignores evidentiary weaknesses and presses for the maximum penalty when Noura has the temerity to go to trial. The wrongful conviction that follows has devastating consequences for Noura, who never quite knows what has hit her, but its eventual discovery generates no sanctions for prosecutorial misconduct. “A prosecutor like Amy Weirich can destroy a life,” Bazelon writes, but a culture of “prosecutorial impunity” ensures that their misuses of power go mostly unpunished.

This is a vivid, disturbing primer on American criminal justice, and readers will come away better informed and motivated for change. And if the book spreads the word about progressive prosecution—prompting people to turn out and vote for reform candidates—it will have served a larger purpose. But Bazelon’s account of our broken justice system hints at a deeper pathology that lies behind mass incarceration, one that won’t be mended by progressive prosecutors. The central problem of American criminal justice is the over-punishment of the guilty, particularly violent, sexual, and repeat offenders, who receive sentences of a severity that is unknown elsewhere. This problem stems not from misused prosecutorial discretion but from structural characteristics of American society and the disorders to which they give rise.

The United States has the highest rates of imprisonment in the developed world largely because it has the highest rates of interpersonal violence, the worst social problems, and the most immiserated lower classes. Kevin’s case is instructive here—not in what it says about lenient prosecutors but in what it tells us about the lives so many lower-class Americans lead. Kevin is a black, male high-school dropout, with little prospect of gainful employment, living in a segregated community marked by guns, gangs, illegality, and violence. We see him struggle to cope and to maintain his shaky self-respect as he strives to comply with the demands of his program, multiple court appearances, the scrutiny of his social worker, and the needs of his pregnant girlfriend, while he also navigates the hazards of a dangerous neighborhood where he must comply with codes of gang loyalty and face serious violence if he is believed to have cooperated with the police. (“Why,” his friends wonder, “was he let off so lightly?”)

Kevin’s travails, and his limited life chances, point to the failures of schools, labor markets, housing, health care, social services, and support for families in America’s underserved communities that produce the social disorganization and despair in which crime and violence take root. Mass incarceration came into existence when the nation abandoned the War on Poverty and chose to treat social problems and wayward lives as problems for police, prosecutors, and prisons. It is hard to see how it can be ended without a transformation of America’s urban policy, its welfare state, and the political economy that underlies them. 

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