The Perverse Power of the Prosecutor

How responsible are prosecutors for holding back progressive criminal justice reform?

By John Pfaff

Tagged criminal justiceprosecutors

One of the more important shifts in criminal justice reform over the past five or so years has been a growing awareness of just how powerful and influential prosecutors truly are. Perhaps startled to find themselves under such attention after decades of little to no scrutiny, prosecutors are now pushing back. One common rebuttal prosecutors make is that they don’t actually have that much power. It is the legislature, they argue, which passes the laws and thus really calls the shots. Prosecutors simply impose what the legislature enacts.

Such claims, however, are quite disingenuous, since they conveniently overlook one of the most important sources of prosecutors’ power: their oversized influence over the legislative process. District attorneys are not passive players in the politics of crime, sitting idly by awaiting their orders from on high. In states from Pennsylvania to Louisiana to California, district attorneys aggressively, and effectively, lobby against reforms they dislike and for new laws that they do. Louisiana recently adopted an expansive criminal justice reform bill, but the final version was significantly watered down from the original proposal, almost entirely due to aggressive and effective lobbying by the state’s district attorneys. And in Pennsylvania the House of Representatives recently passed a bill (which still languishes in the Senate) reinstating drug-focused mandatory minimums that had been invalidated by the state’s supreme court; despite a majority of voters of all ideological stripes opposing the bill, it passed unanimously thanks to the concerted efforts of the state’s prosecutors.

In other words, as reformers start to pay closer attention to the power of prosecutors, they need to keep their eyes not just on how prosecutors have driven up incarceration rates in their day-to-day decisions—like deciding how many people to charge with felony charges or what type of sentence to impose on them during plea bargaining—but also on how they shape the broader politics of criminal justice. Many former prosecutors are now judges and legislators, and current district attorneys frequently work hard to impose tougher laws and to stifle reform. Regulating prosecutors will require looking at not just their direct powers, but their significant indirect political influence as well.

This process is currently repeating itself in Massachusetts, where most of the state’s district attorneys have taken a very public, and mostly adversarial, stance against a wide-ranging criminal justice reform bill recently passed by the state Senate (and currently in the process of being reconciled with a narrower version passed by the House). In October, nine of the state’s 11 prosecutors published a letter attacking many of the bill’s biggest provisions, such as reducing mandatory minimums for low-level drug cases, raising the age of criminal adulthood to 19, and raising the age at which someone could be prosecuted at all to 12.

The arguments raised by the Massachusetts district attorneys are worth considering because of their obvious similarity to those frequently raised whenever reforms of our troubled criminal justice system are attempted. These claims tend to be emotionally compelling, intuitively satisfying—and often mostly incorrect. They also reflect broadly accepted, but quite problematic, views on just how central a role the criminal justice system should play in regulating disorder.

To start, the prosecutors hold an overly optimistic view on the efficacy of formal criminal punishments. They oppose raising the age of majority to 19 not just by lazily invoking a slippery slope (“at what age will we stop?!”) but by arguing that less accountability will lead to worse behavior. The data, however, are quite clear that longer sentences provide very little additional deterrence; this is particularly true for teenagers, who are inherently quite impulsive to begin with. Moreover, younger people are more likely to be harmed by exposure to prison, and time in prison interferes with two clear pathways away from antisocial behavior: securing a job and getting married.

It’s understandable that prosecutors would believe, and certainly would want to believe, that the sentences they impose are effective at changing people’s behavior. But the data consistently suggest that any effect is weak—if not, in many cases, net harm in the end.

The prosecutors also invoke a commonly heard rebuttal to efforts at scaling back mandatory minimums for drug offenses: that we should trust them, at their own discretion, to focus on the “serious dealers,” and not low-level offenders. Of course, the evidence is clear that such mandatories (like all longer sentences) provide little to no additional deterrence and little to no incapacitation benefit (since one locked-up dealer is fairly easily replaced by someone else). Moreover, data show that prosecutors use this discretion in racially biased ways, and that lower-level people are frequently caught up in a mandatory’s net.

In today’s opioid context, we need to be particularly careful about drawing artificial lines between “users” and “dealers.” Quite frequently a person charged as a “dealer” is simply a user trading or selling to friends or fellow users. In Massachusetts, the trigger for the opioid mandatory minimum, 14 grams, is large enough that it is unlikely to apply to a low-level user trading with companions, but this isn’t always the case. In many states the line between users and dealers is fundamentally arbitrary. In Florida, for example, a 40-year-old grandmother with no record was charged with trafficking for selling 35 Lorcet pills to an undercover officer and was sentenced to life in prison, with a mandatory minimum of 25 years.

Another reform in the Senate plan the district attorneys oppose is an effort to scale back the fees and fines attached to criminal convictions, despite research showing that these fees often impede reintegration by imposing financial burdens, and the attendant stress, from which people often can never escape. The district attorneys invoke perhaps the hoariest of arguments, “what about the victims?” They argue that cutting back on these fees and fines would reduce the funds available to make restitution and thus shows a lack of respect for victims. And this is certainly not the only occasion in which any attempt to reduce punitiveness and sanctioning is said to somehow show “disrespect” toward victims.

Often ignored here is the fact that when researchers actually talk to victims, they turn out to be less punitive than politicians and prosecutors, than the public as a whole, and than our laws. This is because the line between “victim” and “offender,” like that between many “users” and “dealers,” is not as sharp as the prosecutors’ rhetoric suggests. Crime, and thus victimization, is densely concentrated in small areas, and as a result people often fall into both categories; in fact, violent behavior is sometimes at least partially the result of earlier victimization. And even those who are solely “victims” frequently have friends and family who are “offenders,” resulting in more complex, nuanced feelings about them.

So it should not surprise us that a recent comprehensive survey of victims  demonstrated that although they want justice, they see it as something much more restorative than punitive—something that makes it clear the victimizer has taken responsibility for his actions and sought to make things right, rather than something necessarily harsh and cruel. It stands to reason, then, that many victims would be wary of punishments that impose insurmountable, life-long financial strains in their name.

In short, prosecutors truly interested in victim-focused punishments will almost never be seen advocating for the status quo.

Finally, perhaps the most disturbing position in the letter is the argument it makes against raising the age of criminal prosecution to 12. The prosecutors claim that they know of no cases where someone under 12 was prosecuted for a crime. Instead, they argue, the low age of criminal responsibility is needed “to establish standing so that the courts can provide the child and his or her family the intervention, counseling and assistance they need.”

In other words, they are asserting that the proper gateway for family services is the criminal justice system. This need not be true. Even if the problems faced by a given family are, say, leading to violent or anti-social behavior, that doesn’t mean the best response comes from law enforcement. In fact, Massachusetts already has alternate ways for families to try to get the help they need. Far too often in this country, however, we view the police and prosecutors as the first (and often only) responders for any and all social ills—even in deeply Blue states like Massachusetts.

It’s not surprising that prosecutors would push for a prosecutor-centered response to social problems. We need to resist this thinking. Yes, some acts require criminal justice interventions. But, quite often, more effective responses lie elsewhere. Two recent studies, for example, indicate that Medicaid expansion cut crime (through increased access to drug treatment) far more efficiently than ramping up incarceration. Similarly, expanded job access has been shown to be one of the consistently effective ways of deterring criminal behavior. Truly public-health, or non-criminal justice, approaches can accomplish quite a lot, and they should play a far more central role in criminal justice reform proposals and in our broader thinking about how to confront social problems.

The letter from the Massachusetts prosecutors is telling. Massachusetts is a deeply liberal state with the second-lowest incarceration rate in the nation. It is not a state that is notorious for its punitiveness. Yet when the legislature sought to make broad—but not radical—reforms, prosecutors, even in Massachusetts, invoked their usual, conventional arguments that often have far too little empirical support. It’s a warning of what we should expect from prosecutors and their associations nationwide as other states undertake even modest criminal justice reforms. Reformers are starting to pay more attention to what district attorneys do in their official capacities; Massachusetts is a reminder that their political lobbying is also an important impediment to real reform.

Read more about criminal justiceprosecutors

John Pfaff is a Professor of Law at Fordham Law School in New York City. He is the author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, which was published in February by Basic Books.

Also by this author

Mass Incarceration Is a Local Affair

Click to

View Comments

blog comments powered by Disqus