America has a mass incarceration problem. Though the United States makes up about four percent of the world’s population, it accounts for twenty-two percent of the world’s prisoners.[1] In recent years, the idea that criminal prosecutions in the United States are fundamentally unfair has become cemented in the national consciousness.[2] With the acceptance that a problem exists, the public has begun to demand change.[3] A majority of voters express a willingness to reform the system, treat non-violent crimes with more leniency, and reserve prison for violent or career criminals.[4]
Not only are minor offenses prosecuted more harshly than the public desires[5], but there is also demonstrable racism within the criminal justice system that has resulted in hundreds of thousands of people of color, particularly Black Americans, ending up behind bars.[6] In 2014, 2.3 million Black Americans were in the U.S. correctional population.[7] Black Americans constituted thirty-four percent of all Americans living under the shadow of conviction, but only thirteen percent of the country’s overall population.[8] A reduction in the number of people the criminal justice system touches and in the effect that ruthless prosecution has had on communities of color, requires identifying who within the system has the power to create change.
Enter the prosecutor. Though problems associated with racism exist within juries and judges, it is the prosecutor who first decides to bring a case.[9] The prosecutor is the lynchpin, ostensibly the first line of defense against petty, unjustified prosecutions that break apart families, send men and women to prison, and spit them out with the tarnish of a criminal record at the end of the process.[10] Using the powerful tool of prosecutorial discretion, these individuals have the power to affect change and, short of changes to the penal code itself, are best able to mete out justice before a case ever makes it to the courtroom.[11] They simply must refuse to prosecute those cases that have little merit and which, if successfully prosecuted, stand to do more harm than good.
The understanding of this power has led to the rise of the so-called “progressive prosecutor.”[12] Loosely defined, progressive prosecutors recognize the ongoing and systemic exploitation of the courts to fill jails at the expense, rather than in furtherance, of the aims of the criminal justice system.[13] Prosecutors, practicing most often within liberal jurisdictions, have touted their efforts to reduce mass incarceration by focusing prosecution on violent and serious crimes, as opposed to nonviolent offenses.[14] Why then are progressive prosecutors widely ridiculed as a fairy tale?[15]
In 2017, a New York Times op-ed eviscerated allegedly progressive prosecutors for not practicing what they preach.[16] Taking aim at one notable progressive prosecutor after the next, the article highlighted how these district attorneys repeatedly claimed to be aggressively reforming the criminal justice system, all the while disproportionately securing convictions against people of color and opposing the legalization of marijuana and shorter sentences for low-level and non-violent property and drug crimes.[17] The article stated: “[P]rogressive bombast is meaningless if prosecutors continue to promote [a continuation of] the same harsh practices behind the scenes.”[18] These “harsh practices,” such as requesting cash bail, trying children as adults and seeking life-without-parole sentences, and recommending mandatory sentencing, continue to lead to an increase in the amount of citizens in jail and worsen racial disparities in the prison system.[19]
If progressive prosecutors are rare today, it may not be because they cannot be successful, but because they do not yet have a fully formed framework from which to operate. If that is the case, coming to a consensus on the role of the federal prosecutor can help to guide the Department of Justice and the judicial branch in adopting policies that will provide for a demonstrable reduction in the prison population and a beginning to the reconstruction of communities of color.
In 1940, Attorney General Robert Jackson reminded U.S. Attorneys that a good prosecutor is one who “tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”[20] This post argues that progressive prosecutors must adopt a perspective that prioritizes protecting the innocent, reviving defendants’ Sixth Amendment right to trial, reducing and eventually undoing mass incarceration, and engaging in a wholistic data-driven approach to charging decisions.
Prioritizing the protection of the innocent
The goals of the criminal justice system to promote deterrence, incapacitation, and rehabilitation are paramount, but looming over all is the presumption of innocence.[21] Indeed, if the community does not understand the criminal justice system to be fundamentally fair, it will hurt the aim of deterrence, since one may be held responsible whether or not they committed the crime. If the government locks up innocent people, it is not serving the goal of incapacitation because the wrong person is incapacitated, and the real criminals are free to continue in lawlessness. Finally, one cannot rehabilitate those who are not broken – they can only introduce them to an environment of crime in prison and then release them into poverty, unable to find a way back to upright living.
Beyond the ability to lock a defendant up, a progressive prosecutor must evaluate whether or not they should. Prosecutors today are far too often convinced that the goal is a conviction, not justice.[22] As long as the system embraces cold numbers as the all-important metric of success, we cannot hope to put a dent in the prison population.
Reviving the Sixth Amendment right to trial
In a 2018 report, the National Association of Criminal Defense Lawyers (“NACDL”) highlights the “trial penalty” exerted on defendants for choosing to go to trial.[23] In 2017, 97.2% of defendants in the federal criminal justice system opted to concede their guilt rather than to face trial.[24] The figure may not be shocking to anyone casually acquainted with the United States’ criminal justice system, but it is harrowing – most importantly, it is largely a result of prosecutorial decision-making.
The vast delta between sentences offered during pre-trial negotiation and the much harsher sentences imposed after trial has implicated a broad array of issues related to the Sixth Amendment right to trial.[25] Among those issues, NACDL points out that trials protect the presumption of innocence and prevent defendants from being pushed into accepting plea deals based solely upon the low probable cause standard of proof by which the grand jury issues an indictment.[26] The decline in trials also undermines the jury function of exercising lay oversight of the criminal justice system, thus denigrating the role of appellate courts in supervising trial courts.[27] Mandatory minimum sentences can be used to scare defendants into accepting plea deals when innocent or, if the defendant is guilty, leaving them without the option to show mitigating evidence at trial.[28] The NACDL argues that the criminal justice system should not punish individuals for exercising their right to trial and that “[t]he trial penalty creates a coercive effect which profoundly undermines the plea bargaining process.”[29]
Though prosecutors cannot fully control legislative decisions regarding mandatory minimums, or judges’ decisions to adhere to strict sentencing guidelines, they can decide whether or not to bring charges in the first place, and they can decide whether or not to charge a lesser crime that does not feature such harsh minimum sentences.[30] It is incumbent upon the prosecutor to make these fundamental decisions from the beginning, not based upon the tools he has in spades, but upon what will serve the public good.
A data-driven approach to charging decisions
Rather than decide to bring charges based upon whether or not they can win, a prosecutor should consider the full range of options and consequences. Increasingly, in the white-collar world, for example, prosecutors have utilized non-prosecution agreements or deferred prosecution agreements.[31] These deals allow companies the opportunity to correct their behavior, instead of going to trial or pleading guilty.[32] Suffice to say, companies often have less at stake in being branded criminals than does an individual who faces time behind bars. Surely, therefore, individuals would be equally or more zealous to enter into non-prosecution agreements and to adhere to them.
Though Congress has handed prosecutors their greatest tools to secure convictions in the form of mandatory minimum sentences and harsh sentencing guidelines, it is at the discretion of each prosecutor whether or not to use those tools.[33] The communities from which defendants are drawn would, in many cases, be better served by a lighter hand and non-incarceration based sentences.[35] Prosecutors should base decisions on whether or not to prosecute upon a totality of the circumstances, including the defendant’s family background, prior arrests and convictions, and overall chance of recidivism, coupled with the potential harm of such recidivism.[36]
These considerations require data. Key in coming to a just conclusion is an accuracy that cannot be produced by mere anecdotal evidence; in Talking to Strangers, Malcolm Gladwell highlights how human judgment can lead us astray.[37] In one case study, researchers discovered that in bail cases, computers input of the same data provided to judges were twenty-five percent more accurate at predicting which bail applicants would not turn up for trial or engage in recidivism while on bail.[38] Far from such results indicating that we should turn over judicial proceedings to machines, Gladwell believes that even when errors are made, the human element is what confers legitimacy on the criminal justice system.[39] If that is true, in making decisions prosecutors should consider data not as a backup for human intuition, but as the guiding principle, with human empathy and instinct providing context to that data.
Undoing mass incarceration
The Obama Administration’s stated goal during Attorney General Eric Holder’s time in office was to decrease mass imprisonment with a three-prong approach: prevention, prosecution, and reintegration.[40] Though the stated goal was admirable, as with many attempts at progressive prosecution, the effect was moderate; the Obama Administration successfully reduced the total prison population by approximately five percent over its eight years.[41] For significant reform to occur, the United States will need to do much better. Meanwhile, the Trump Administration has taken a hard-on-crime approach, with Attorney General Jeff Sessions calling for prosecutors to disclose all facts that impact mandatory minimum sentences to bring wrongdoers to justice.[42] Commentators worried that this return to the traditional measure of prosecutorial success, convictions obtained, would push the prison population significantly higher than it has ever been before.[43]
It is essential to consider the effect that incarceration has not only on the person incarcerated but their families and communities as well. Nearly half of all Americans have an immediate family member who has been incarcerated.[44] Once released from prison, there are significant barriers to gainful employment, and the ensuing poverty fosters an environment where crime can thrive, perpetuating the cycle of recidivism.[45] Real progress requires examining how our prison system provides an endless loop, pulling in generation after generation and excluding entire classes of people from the American Dream.
The setting of a sentence is not the end of the pursuit of justice. Progressive prosecutors should also take it upon themselves to engage in much more post-conviction investigation of evidence that potentially corroborates innocence.[46] Some prosecutors regularly push back against defense motions to explore new forensic evidence.[47] Nonetheless, some prosecutorial offices have begun to create Conviction Integrity Units (“CIU”) as a means of investigating claims of innocence and wrongful conviction.[48] CIUs offer a chance for prosecutors to fulfill their ethical obligation to follow up on claims of innocence and to pull from the prison system those who should never have been sent there.[49] As of 2018, CIUs have been responsible for 344 exonerations.[50] It is a small step for a vast prison population, but it is a step in the right direction, one which must be repeated many times in every community across America.
When all one has is a hammer, every problem begins to look like a nail. It is easy to think that prosecutors have only two tools in their possession: prosecution or plea agreement; in reality, there is a broad array of options available to achieve the goals of justice.
[1] See German Lopez, Mass Incarceration in America, Explained in 22 Maps and Charts, VOX (Oct. 11, 2016, 1:50 PM), https://www.vox.com/2015/7/13/8913297/mass-incarceration-maps-charts.
[2] See, e.g., KIM KARDASHIAN WEST: THE JUSTICE PROJECT (Oxygen 2020).
[3] See, e.g., Mike Schneider, Sorry Boomers: Millennials and Younger Are New US Majority, WASH. POST (Aug. 3, 2020), https://www.washingtonpost.com/national/sorry-boomers-millennials-and-younger-are-new-us-majority/2020/08/03/25a273a8-d596-11ea-a788-2ce86ce81129_story.html; Marisa Lagos, Proposition 47 Criminal Justice Reform Projected to Save State Over $122 Million, KQED (Jan. 16, 2020), https://www.kqed.org/news/11796149/voter-approved-criminal-justice-reform-expected-to-save-state-over-122-million.
[4] See, e.g., Lagos, supra note 3; Memorandum from The Mellman Grp. & Pub. Op. Strategies to Pub. Safety Performance Project of the Pew Charitable Trusts (Feb. 10, 2016), https://www.pewtrusts.org/~/media/assets/2016/02/national_survey_key_findings_federal_sentencing_prisons.pdf [hereinafter Pub. Safety Performance Project Memorandum].
[5] See Pub. Safety Performance Project Memorandum, supra note 4.
[6] See Criminal Justice Fact Sheet, NAACP, https://www.naacp.org/criminal-justice-fact-sheet/ (last visited Nov. 10, 2021) (“32% of the US population is represented by African Americans and Hispanics, compared to 56% of the US incarcerated population being represented by African Americans and Hispanics.”).
[7] See id.
[8] Id.
[9] See Andrew C. Helman, Comment, Racism, Juries, and Justice: Addressing Post-Verdict Juror Testimony of Racial Prejudice During Deliberations, 62 ME. L. REV. 327, 331 (2010) (analyzing the problems associated with racial prejudice within jury deliberations).
[10] See ALLISON YOUNG, CTR. FOR AM. PROGRESS, THE FACTS ON PROGRESSIVE PROSECUTORS (2020), https://cf.americanprogress.org/wp-content/uploads/2020/04/04-23_Progressive-Prosecutors.pdf?_ga=2.228666588.170961204.1636592057-1398399718.1636592057.
[11] See id.
[12] See id.
[13] See Madison McWithey, Essay, Taking a Deeper Dive into Progressive Prosecution: Evaluating the Trend Through the Lens of Geography: Part One: Internal Constraints, 61 B.C. L. REV. E. SUPP. I.-32, I.-32-33 (2020).
[14] See Allan Smith, Progressive DAs Are Shaking Up the Criminal Justice System. Pro-police Groups Aren’t Happy., NBC NEWS (Aug. 19, 2019, 4:47 AM), https://www.nbcnews.com/politics/justice-department/these-reform-prosecutors-are-shaking-system-pro-police-groups-aren-n1033286.
[15] See, e.g., Darcy Covert, The False Hope of the Progressive-Prosecutor Movement, ATLANTIC (June 14, 2021), https://www.theatlantic.com/ideas/archive/2021/06/myth-progressive-prosecutor-justice-reform/619141/.
[16] Josie Duffy Rice, Cyrus Vance and the Myth of the Progressive Prosecutor, N.Y. TIMES (Oct. 16, 2017), https://nyti.ms/2kT965c.
[17] See id.
[18] Id.
[19] Id.; see also Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker, 123 YALE L.J. 2, 6 (2013) (discussing the role that prosecutors play in furthering racial inequity).
[20] Robert H. Jackson, The Federal Prosecutor, 31 J. AM. INST. CRIM. L. & CRIMINOLOGY 3, 4 (1940).
[21] See Sandra K. Wolkov, Casenote, Reasonable Doubt in Doubt: Sentencing and the Supreme Court in United States v. Watts, 52 U. MIA. L. REV. 661, 681–82 (1998) (arguing that the “implications of the presumption of innocence fluctuate in the face of different justifications for punishment”).
[22] See Eric Rasmusen et al., Convictions Versus Conviction Rates: The Prosecutor’s Choice, 11 AM L. & ECON. REV. 47, 48 (2009) (emphasizing the status of conviction rates as a measure of prosecutorial success).
[23] NAT’L ASS’N OF CRIM. DEF. LAWS., THE TRIAL PENALTY: THE SIXTH AMENDMENT RIGHT TO TRIAL ON THE VERGE OF EXTINCTION AND HOW TO SAVE IT 6 (2018), https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf [hereinafter NACDL Report].
[24] See id.; U.S. SENT’G COMM’N, 2017 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS S-25 fig. C (2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2017/2017SB_Full.pdf; Table D-4, U.S. District Courts—Criminal Defendants Terminated, by Type of Disposition and Offense—During the 12-Month Period Ending March 31, 2021, U.S. CTS., https://www.uscourts.gov/statistics/table/d-4/federal-judicial-caseload-statistics/2021/03/31 (last visited Nov. 11, 2021) (illustrating the vast proportion of defendants who plead guilty to those that were convicted at trial),
[25] See NACDL Report, supra note 23, at 9-10.
[26] See id. at 11.
[27] See id.; CLAY S. CONRAD, JURY NULLIFICATION: THE EVOLUTION OF A DOCTRINE 297-303 (1998).
[28] See NACDL Report, supra note 23, at 52.
[29] Id. at 58.
[30] See William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 HARV L. REV. 2548, 2549 (2004).
[31] See Renae Merle, Repeat Offenders: Corporate Misdeeds Often Settled With Deferred Prosecution Agreements, WASH. POST (Sept. 26, 2019, 11:48 AM), https://www.washingtonpost.com/business/2019/09/26/repeat-offenders-corporate-misdeeds-often-settled-with-deferred-prosecution-agreements/.
[32] See id.
[33] See, e.g., Smith, supra note 14.
[34] See Emily Von Hoffmann, How Incarceration Infects a Community, ATLANTIC (Mar. 6, 2015), https://www.theatlantic.com/health/archive/2015/03/how-incarceration-infects-a-community/385967/ (arguing for criminal justice reform based on the negative long-term effects incarceration has on communities).
[35] See FAMS. AGAINST MANDATORY MINIMUMS, ALTERNATIVE TO INCARCERATION IN A NUTSHELL (2011), https://famm.org/wp-content/uploads/FS-Alternatives-in-a-Nutshell.pdf.
[36] See generally Doron Teichman, Convicting with Reasonable Doubt: An Evidentiary Theory of Criminal Law, 93 NOTRE DAME L. REV. 757 (2018) (advocating for sentencing based upon the strength of evidence against the defendant).
[37] MALCOLM GLADWELL, TALKING TO STRANGERS: WHAT WE SHOULD KNOW ABOUT THE PEOPLE WE DON’T KNOW 34 (2019) (citing Jon Kleinberg, et. al., Human Decisions and Machine Predictions, 133 Q. J. OF ECON., 237 (2017)).
[38] See id.
[39] See id.
[40] Memorandum from Eric H. Holder Jr., Att’y Gen., Off. of the Att’y Gen., to All Fed. Prosecutors, Department Policy on Charging and Sentencing (May 19, 2010), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/holder-memo-charging-sentencing.pdf.
[41] See John Gramlich, Federal Prison Population Fell During Obama’s Term, Reversing Recent Trend, PEW RSCH. CTR. (Jan. 5, 2017), http://pewrsr.ch/2iEtO6a.
[42] Memorandum from The Att’y Gen., Off. of the Att’y Gen., to All Fed. Prosecutors, Department Charging and Sentencing Policy (May 10, 2017), https://www.justice.gov/opa/press-release/file/965896/download.
[43] See, e.g., Rand Paul, Sessions’ Sentencing Plan Would Ruin Lives, CNN (May 15, 2017, 11:04 PM), https://www.cnn.com/2017/05/15/opinions/sessions-is-wrong-rand-paul-opinion/; Jacob Sullum, How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?, REASON (May 17, 2017, 9:15 AM), https://reason.com/2017/05/17/how-many-drug-offenders-benefited-from-t/. But see John Gramlich, Under Trump, the Federal Prison Population Continued Its Recent Decline, PEW RSCH. CTR. (Feb. 17, 2021), https://www.pewresearch.org/fact-tank/2021/02/17/under-trump-the-federal-prison-population-continued-its-recent-decline/.
[44] See Half of Americans Have Family Members Who Have Been Incarcerated, EQUAL JUST. INITIATIVE (Dec. 11, 2018), https://eji.org/news/half-of-americans-have-family-members-who-have-been-incarcerated/.
[45] See U.S. COMM’N ON C.R., COLLATERAL CONSEQUENCES: THE CROSSROADS OF PUNISHMENT, REDEMPTION, AND THE EFFECTS ON COMMUNITIES 9 (2019).
[46] See Elizabeth Webster, The Prosecutor as a Final Safeguard Against False Convictions: How Prosecutors Assist with Exoneration, 110 J. CRIM. L. & CRIMINOLOGY 245, 258 (2020).
[47] See, e.g., Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio State J. Crim. L. 467 (2009) (describing prosecutorial opposition to discovery in the Palladium nightclub case resulting in two wrongful convictions).
[48] See Robert A. Fairfax, Jr., The “Smart on Crime” Prosecutor, 25 GEO. J. LEGAL ETHICS 905, 911-12 (2012); INNOCENCE PROJ., CONVICTION INTEGRITY UNITS (2016), https://leg.mt.gov/content/Committees/Interim/2015-2016/Law-and-Justice/Meetings/Jun-2016/Exhibits/innocence-project-conviction-integrity-doc-june-2016.pdf (stating that as of 2015, there were twenty-four CIUs across the United States).
[49] See generally DANIEL S. MEDWED, PROSECUTORIAL COMPLEX: AMERICA’S RACE TO CONVICT AND ITS IMPACT ON THE INNOCENT 135 (2012).
[50] See NAT’L REGISTRY OF EXONERATIONS, EXONERATIONS IN 2018 app. tbl.A (2019), https://www.law.umich.edu/special/exoneration/Documents/Exonerations%20in%202018.pdf.
[51] See generally BRENNAN CTR. FOR JUST., 21 PRINCIPLES FOR THE 21ST CENTURY PROSECUTOR (2018), https://www.brennancenter.org/sites/default/files/publications/FJP_21Principles_FINAL.pdf (advocating a holistic approach to prosecution).