See the whole Punitive Excess series
This essay is part of the The Brennan Center series examine the punitive excesses that ended up defining the American criminal justice system.
I became a prosecutor because I don’t like bullies. I quit being a prosecutor because I don’t like bullies.
I grew up in South Chicago in an all-black neighborhood. My family had first hand experience of the crime – our house was broken into and my mother was held up at gunpoint. As a young black man, I also had bad experiences with police officers, such as being arrested for no reason or being the subject of suspicion every time I rode my bike in a white neighborhood.
So, I went to the District of Columbia attorney’s office as an undercover brother, hoping that I could create change from within. I wanted to help protect people from criminals and I wanted to help keep black people as safe as possible in a racist criminal justice system.
What I found instead was that instead of changing the system, the system was changing me. Like many lawyers, I was competitive and ambitious, and the way for a young lawyer to grow up in the prosecution was to lock up as many people as possible, for as long as possible. It turned out that I was good at it and I started to see this job as the best way to serve my community.
At one point, however, I started to see it differently. Virtually all of the accused were black or Latino. In Washington, as in many American cities, if you go to criminal court, you would think white people are not committing a crime. I realized that I had not gone to law school to put black people in jail, especially for the drug-related crimes I was prosecuting – crimes that white people also committed but for which they did not. not been arrested. I also didn’t feel that my job of sending so many people to prison – especially black men – made communities safer. On the contrary, I have learned that too many prosecutors are using their power in a way that has contributed to the drastic increase in incarceration.
As the most powerful players in the criminal justice system, local and federal prosecutors have enormous discretion and are subject to little judicial oversight – oversight that could moderate their abuse of prosecutorial power. For example, they decide not only to charge someone with a crime, but if so, what crime. Even if a judge disagrees with the prosecutor’s decision to charge someone with a particular crime, the judge is powerless to overturn the prosecutor’s action. Since the punishment for a crime is largely determined by the sentence that lawmakers have established in the penal code, the prosecutor often has more power over the sentence imposed on a person convicted of a crime than the judge. who pronounces the sentence.
Let’s say a person has been arrested for possession of five pounds of weed (in a jurisdiction where possession and sale of marijuana is criminalized). The prosecutor can choose not to charge that person (no penalty, of course), charge them with simple possession (usually a sentence of limited duration or severity), or charge them with possession with intent. to distribute, which may require – by law – several years in prison. Most prosecutor’s offices aren’t transparent about what factors would lead them to which prosecution decision – and that assumes the office even has uniform standards. Many do not, and they decide these matters on an ad hoc basis, which risks allowing inappropriate considerations like race to influence who is accused.
Plea bargaining exacerbates the problem. Indeed, prosecutors generally offer an accused an “deal” to avoid being tried. Some 95 percent of criminal cases are resolved this way. If the defendant agrees to confess his guilt, the prosecutor recommends to the judge a less punitive sentence than that which the prosecutor would recommend if the defendant goes to trial and loses. This threat from prosecutors – to throw the book on convicted defendants – radically dilutes the accused’s constitutional right to a trial.
Unfortunately, the Supreme Court authorized this practice in a 1978 case titled Bordenkircher v. Hayes. Lewis Hayes had been charged with forgery and faced a sentence of 2 to 10 years in prison. Prosecutors offered to pursue a five-year sentence if Hayes pleaded guilty and saved them from “the inconvenience and the need for a trial.” If he refused to plead guilty, prosecutors said they would seek an indictment under the Kentucky Habitual Crime Act. Because Hayes had previously been convicted of two felonies, a conviction would result in a life sentence. Hayes exercised his constitutional right to a trial, prosecutors charged him under the Habitual Crime Act, and he was convicted and sentenced to life imprisonment.
Hayes challenged his conviction on the grounds that his 14th Amendment due process rights were violated when prosecutors threatened to re-indict him on more serious charges if he did not plead guilty to the original infringement offense less serious. In its 5-4 decision, the Supreme Court dismissed the challenge. According to the court, the plea bargaining system is an “important part of this country’s criminal justice system”, and as long as pleas are made “knowingly and willfully” there is no constitutional violation. The Court recognized that punishing a person for “doing what the law clearly permits him to do” is “a violation of due process of the most basic kind”. But he rejected the idea that Hayes was being punished, instead saying he was simply faced with “tough choices.”
Since Bordenkircher, plea bargaining has become so institutionalized that, in a 2012 case, Judge Anthony Kennedy noted that plea bargaining “is not an addition to the criminal justice system; this is the criminal justice system.
Prosecutors have also contributed to the racial disparities that are an endemic feature of the US criminal justice system. In 2014, the Vera Institute of Justice published research that examined the racial disparities at play in the Manhattan District Attorney’s Office, and it concluded that “race remains a statistically significant independent factor” in most respects. discretion in the judicial process. In Vera’s report, based on analysis of more than 200,000 cases, researchers found that black and Latin American people accused of drug-related offenses were more likely to receive punitive plea offers than men. white defendants, especially offers that included incarceration. Black and Latino defendants were also more likely than whites and Asian Americans in the same situation to be detained before trial. The study found that prosecutors treated black and Latino defendants more favorably in at least one respect: they were more likely than whites to have cases dismissed before their trial – likely, according to the report, because “the police was more likely to get them on “false or unfounded” charges in the first place.
Many of these policies and practices are being re-examined in jurisdictions across the country, in part thanks to reformers who won the district attorney elections. The movement of “progressive prosecutors” owes its beginnings to the book of Angela J. Davis in 2009, Arbitrary justice: the power of the American prosecutor, who argued that prosecutors should use their discretion to reduce mass incarceration and racial disparities.
Reform prosecutors have different approaches, but they all reject incarceration as an instinctive response to social ills. In Chicago, Cook County State Attorney Kim Foxx has refused to prosecute low-level offenses such as small-scale retail theft as felonies. In Baltimore, State Attorney Marilyn J. Mosby recently announced that her office will no longer prosecute sex work, drug possession and other petty offenses. Philadelphia District Attorney Larry Krasner is demanding that prosecutors in his office declare on the record the costs and benefits of any jail time they recommend to judges. In San Francisco, District Attorney Chesa Boudin has put an end to the use of the “three strikes” laws.
The progressive movement of prosecutors is new but promising. Since prosecutors are one of the main sources of the problem of mass incarceration and excessive sentences, they must be part of the solution.
Paul Butler is Albert Brick Professor of Law at Georgetown University and MSNBC Legal Analyst. Former federal prosecutor, he is the author of Chokehold: Policeman black men.