The number of people incarcerated in the U.S. has quintupled since the 1980’s to a total of almost 2.2 million people. Our level of imprisonment is five to ten times higher than that of other liberal democracies—nine times Germany’s and seven times France’s. Our justice system has begun to operate as a system of injustice, creating counterproductive levels of punishment.

According to Emily Bazelon, author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, the unfettered power of prosecutors has contributed significantly to this number.

Over the last 40 years, prosecutors have amassed more power than our criminal justice system was designed for. And they have mostly used that power to put more people in prison, contributing to the scourge of mass incarceration. Bazelon found that when Black defendants are punished more severely than White defendants for similar crimes, prosecutors’ choices are largely responsible. While prosecutors are not the only spokes in the wheel of the criminal justice system, their decisions are the most significant.

County and city prosecutors handle as much as 95% of the nation’s criminal docket for felony charges. When misdemeanor charges are added, their share increases to 99%.

Approximately 2,400 prosecutors hold elected office nationwide. As of November 2016, of that number, 95% were White and 79% were White men.

The United States is the only country in the world where citizens elect prosecutors. Elections for prosecutors began in 1832, when Mississippi changed its constitution to give local voters the power to elect district attorneys, assuming that would make the prosecutors more accountable. By the time of the Civil War, most states had followed suit. Today the only states that appoint prosecutors are Alaska, Connecticut, Delaware, New Jersey, and Rhode Island.

In seeking reelection, conviction rates are the statistics that many district attorneys cite. And when a case makes headlines—especially the kind that makes people fear for their safety—locking someone up for it becomes a driving imperative. Prosecutors face pressure to act for the sake of their careers and the image of the district attorney’s office. When the family of a victim is pressing for a conviction, and/or when the charges are more serious, the fear of headlines can loom larger than the presumption of innocence.

The director of prosecutors’ offices is typically called the district attorney (DA) but other names include state’s attorney or commonwealth’s attorney.

Elections for local prosecutors are typically second-order races that voters either skip or pay little attention to. In a poll conducted by the ACLU, half of the 1,600 likely voters said they didn’t know that their district attorney was elected.

A significant problem in our criminal justice system is that 80% of incumbent district attorneys run for re-election unopposed. Most of them just win until they quit. It’s important to understand what district attorneys do and the amount of power they have and their role in perpetuating racial disparity.

Prosecutors are tasked with seeking justice in their prosecutions. In 1935, in the case of Berger v. United States, Supreme Court Justice George Sutherland wrote that prosecutors are:

“the representative. . . of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is . . . the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

In other words, the prosecutor’s job is to offer mercy in equal measure to justice, not to exact the greatest possible punishment. The job of a prosecutor is the pursuit of justice, not the pursuit of convictions. But this has not been the case in recent years.

Some people commit truly serious crimes and some cause unconscionable harm. But the criminal justice system has expanded to incarcerate immense numbers of people who don’t fit into these categories. And as recent crime statistics show, the overuse of incarceration hasn’t proven to be a sound strategy for keeping the public safe.

In 2002, an Illinois commission found that prosecutors contributed to the convictions of 13 men who were subsequently exonerated and released from death row. This due to prosecutors’ “tunnel vision”—the tendency to seek out and interpret evidence that supports a preexisting belief or expectation.

Some DA’s offices, like Shelby County, Tennessee, in the 1990’s awarded prosecutors who won big convictions or long sentences. Lawyers who cut ethical corners or withheld evidence until the last minute before a trial were still being promoted.

Most of the time, prosecutors more than judges, control the outcome of cases. They answer to no one else and make most of the key decisions in a case, from choosing the charge to making the bail demand to determining the plea bargain.

In 1957, the Supreme Court ruled that prosecutors had to give to the defense the prior statements of trial witnesses after they testified. Then in 1963, in Brady v Maryland, Air Force veteran, John Leo Brady, who’d been sentenced to death for a murder committed four and half years earlier, appealed his conviction. Brady’s lawyers argued that the prosecution should have disclosed that a codefendant had confessed to the killing. The Court decreed that before trial, prosecutors must turn over evidence that is “favorable” to the defense if it is “material either to guilt or punishment.” This became known as the Brady rule.

The problem with the Brady rule is that the state is responsible for investigating crimes, and that means it largely controls the gathering of information. Police scour the crime scene, send what they find to a forensics lab, and receive the results. Detectives usually interview witnesses before anyone else does. The Brady rule is supposed to ensure that if law enforcement agents turn up anything that could help the defense, they’ll hand it over so that all the facts come out. The challenge with the Brady rule is that it’s hard to enforce. Prosecutors decide what is “favorable” and “material” and the judge and defense have no way to know what is being held back.

In 707 cases of prosecutorial misconduct between 1997 and 2009, many of them involving withheld evidence, California courts reversed less than 1/4 of the verdicts. In a national study by the Center for Public Integrity, judges reversed only 18% of the more than 10,700 convictions in which they found that misconduct by police or prosecutors occurred. In the rest they ruled that the failure to turn over evidence was a harmless error; the jury would have convicted either way.

In 1985, the justices in the Supreme Court, in the United States v. Bagley, decreed that, in order to win a new trial, defense attorneys had to do more than bring hidden evidence to light. The defense also had to show that there was “reasonable probability” that the jury would have reached a different decision if the evidence had been disclosed.

Exceptions to harsh law-and-order prosecution over the last generation have included cities like Seattle and Milwaukee where long-serving district attorneys emphasize drug treatment and rehabilitation rather than locking people up.

PLEA BARGAINS

Jury trials have an important place in the American Constitution. The founding fathers saw juries as a means of achieving fairness and truth. Article III of the Constitution guarantees the right to a jury in trials of all crimes (except impeachment) in the state where they are committed:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…”

The Sixth Amendment repeats this promise and adds the right to a speedy and public trial in all criminal prosecutions:

“In all criminal prosecutions, [bold added] the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Jury trials offer direct democracy more than any other feature of our American constitutional structure. Juries are the people themselves. Ordinary Americans enter the courtroom with responsibility for the most important decisions that happen in the court. Trials keep prosecutors and their law enforcement partners honest by forcing them to meet a high standard of proof.

The concept of juries to determine guilt or innocence and judges to determine punishment began to change after the Civil War. In the late 19^th century, rising crime and accompanying increasing caseloads gave rise to plea deals, negotiated away from public view, in place of open courtroom trials.

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or “no contest” (nolo contendere) in exchange for an agreement by the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence acceptable to the defense.

According to Emily Bazelon, the disappearance of the jury and the trial was a function of the rising power of prosecutors. Intent on putting more people in prison to fight the crime wave of the 1980’s and 1990s, prosecutors gained the power to threaten prison time and settle cases with plea bargains, negotiated outside the courtroom. So the criminal justice system reconstituted itself, creating a system far off from the original design and intention.

Here’s how it works: a defendant who takes the prosecutor’s plea offer and pleads guilty gets a break at sentencing compared with the length of the sentence for the top charge. Invoking the right to trial instead means the defendant gets a lengthier sentence if s/he loses. When defendants plead guilty, they often have to waive their rights to any appeal. In the case of plea deals, defendants are penalized for going to trial.

For example: In 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who were found guilty at trial was 16 years.

In some states, more than 95% of criminal convictions are obtained through guilty pleas. The rate in some states, such as New York, is as high as 98%. Prosecutors can dictate the terms of a plea bargain.

Judge Jed Rakoff, Senior United States District Judge of the United States District Court for the Southern District of New York calculated that of the 2.2 million Americans now in prison, more than two million are there “as a result of plea bargains dictated by prosecutors, who effectively dictated the sentence as well.” Although judges have the power to reject plea deals, they rarely do.

The Supreme Court banned coerced confessions in federal courts in the late 19^th century and in state courts in 1936, in the case of Brown v Mississippi. The Court made an analogy between a coerced confession and an “involuntary” plea. Plea deals are supposed to be agreed to freely, voluntarily rather than compelled. But according to John Langbein, Yale law professor, “Plea bargaining, like torture, is coercive.”

In January 1978 in Bordenkircher v Hayes, the Supreme Court set plea bargaining on its current course. The defendant, Paul Hayes, a 29-year-old Black man was accused of stealing and forging a check for $88.30 so he could feed his diabetic mother and four of his 15 siblings. The check forgery carried a sentence of 2 to 10 years in prison. Because he had been convicted of a sex offense as a teenager and of a robbery in his early 20’s, the prosecutor offered a plea deal of 5 years for the bad check. If he refused to plead guilty and take the offer, the prosecutor threatened to add a life sentence charge under the state’s three-strike law. Hayes went to trial and lost. He was sentenced to life in prison.

He appealed to the Supreme Court which ruled:

• The due process clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused re-indicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged.
• The guilty plea and the concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.
• There is no element of punishment in the give-and-take of plea bargaining as long as the accused is free to accept or reject the prosecutor’s offer.
• The prosecutor’s interest at the bargaining table, to persuade the defendant to forgo his right to plead not guilty, is “constitutionally legitimate.”

There are no limits on the threats that prosecutors can make in soliciting a plea agreement. When defendants are faced with the choice between five years in prison or life in prison or the death penalty, it’s no wonder many feel they have no choice but to plead guilty.

I wonder what would have happened if the Supreme Court had overturned Hayes’ life sentence and ruled that his punishment was disproportionate to the wrongdoing and violated the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Reversing the Court’s 1978 ruling would be one step toward improving the current criminal justice system.

According to the Brazelon in Charged, we need to think more broadly about the scope of a prosecutor’s job. “Many prosecutors think it’s not their job to worry about the consequences of a conviction beyond the sentence they ask for in court. But convictions have all kinds of ripple effects: they can cause the loss of a job, a university admission, a professional license, the custody of a child, or a benefit like public housing.”

CONCLUSION

States spend their own money—$200 billion annually for criminal justice (including about $80 billion just on prisons and jails). If voters knew of the expenses of the criminal justice system, and the price of incarcerations, they might pay greater attention to candidates for district attorneys and prosecutors. We, the people, elect state prosecutors, and that means their power is our power.

Some state legislatures are rethinking the wisdom of spending more than $43 billion a year on prisons and jails, at a cost of $15,000 to $70,000 annually per prisoner. These costs drain resources from other means of preventing crime that can strengthen communities and improve people’s lives.

A RAND Corporation study done in 2014 revealed that $1 spent on education in prison saved nearly $5 in future incarceration costs by cutting the rate of reoffending by more than 49%.

A first-of-a-kind poll conducted by the ACLU’s Campaign for Smart Justice found that voters of every persuasion in the U.S. —in red states and blue states alike—strongly prefer elected prosecutors who are committed to reducing incarceration, tackling racial disparities, and being transparent. Approximately 90% of likely voters surveyed said that it was important for their prosecutor to prioritize alternatives to incarceration. 88% of voters also said they were more likely to support a prosecutor who actively works to reduce racial bias in the criminal justice system. And 91% want prosecutors to reduce sentences in instances where people were treated unequally because of their race.

The ACLU poll also revealed one major reason why “tough on crime” prosecutors get returned to office even though their views are out of step with the majority of their constituents. Many voters simply know too little about who their local prosecutor is or what they do. Once armed with that information, three quarters of voters say their prosecutor is “very important” and that they would vote for a candidate committed to reform. To bridge the gap between voters’ values and pro-incarceration practices of many elected prosecutors, the ACLU has begun a nationwide public education effort.

Elections for prosecutors represent a shortcut to addressing a lot of dysfunction. Cities and counties can model change that can spread statewide and nationally. This movement deserves your attention.

What can you do?

• Investigate the cases and attitudes of the prosecutors and district attorneys in your county or city. You can find information on their website or listen to their campaign speeches. Do they deny that racism permeates the criminal justice system? Do they work for reforms? Do they adopt “tough on crime” policies?
• Increase awareness among your area’s voters. Spread the word about the prosecutors and district attorneys that are up for election or reelection in your county or city and the importance of prosecutors in our criminal justice system.
• Join or create a community advisory board to work with your local district attorney to bring about prosecutorial reform.
• Support the ACLU in its efforts to reform the criminal justice system. You can donate here.
• Vote for reform-minded prosecutors in the next election in your state, county or city.