The Manhattan Criminal Courts building, New York, New York
The Manhattan Criminal Courts building, New York, New York Allison Joyce/Reuters

Two former prosecutors argue that we need a justice system that rewards prosecutors for reducing incarceration.

The image of a hard-charging prosecutor imploring a jury to throw the book at a defendant is a familiar scene that has played out in the country’s courtrooms—not to mention on its television screens—for decades. But today, that picture is changing as prosecutors and the public are increasingly recognizing the role these lawyers can play in bringing about a fairer and more equitable criminal justice system. Here we examine legislation and policies that have been introduced, and in some cases passed and implemented, at the federal, state, local, and office levels to facilitate this change, as well as presenting further solutions for rethinking what a successful justice system looks like.

Prosecutors are powerful actors who enter a defendant’s life at a critical juncture. They decide what charges to bring, if a case will be deflected from the justice system entirely, and whether to seek pretrial detention or cash bail—decisions that are the difference between incarceration and freedom. They hold the upper hand in plea bargaining (the pathway by which 94 percent of cases are resolved), determine whether someone will be judged by a jury of peers, or whether the case will be determined through a disposition offered by the prosecutor in exchange for a guilty plea. And their recommendation at sentencing is a powerful one: They can feed the epidemic of mass incarceration as many of them have for many years, or they can, instead, take steps to reverse it.

With 94 U.S. Attorneys and more than 2,400 elected local prosecutors (including state, county and district attorneys) prosecutors’ immense discretion touches every town, city, and state. So how can they exercise their clout to move toward more equitable and sensible approaches that reflect decades of lessons learned?

A newly released report by the Brennan Center for Justice at NYU School of Law provides a blueprint. It outlines solutions for prosecutors to drive down incarceration rates, which have increased five-fold since the mid-1970s, while maintaining public safety. And it articulates the urgent need for change, noting that while the United States has less than 5 percent of the world’s population, we have nearly one-quarter of its prisoners.

Voters have shown that they want reform. Crime is no longer a wedge issue. Recent polls show that 71 percent of Americans support reducing the prison population—including 50 percent of Trump voters.

This desire is playing out in elections. Over the last few years, reform-minded prosecutors were elected in cities around the nation including Chicago, Houston, Denver, Brooklyn, Philadelphia, Tampa, Jacksonville, and St. Louis.

These new leaders, like Philadelphia District Attorney Larry Krasner, are quickly making a push for change. Krasner issued a recent directive to his office’s prosecutors requiring them to state on the record how much a recommended sentence would cost taxpayers, and to justify the cost as necessary to public safety. Last year, district attorneys Kim Ogg and Mark Gonzalez in Texas adopted policies to avoid the criminalization of low-level marijuana cases. Kim Foxx, the State’s Attorney in Cook County, Illinois (Chicago), increased her office’s transparency by releasing a groundbreaking report revealing demographics of defendants prosecuted, and data on sentencing and dispositions. And in Florida, new state attorneys have dramatically reduced the number of juveniles prosecuted or brought into the adult system. Krasner, Ogg, Gonzalez and Foxx are all part of the Fair and Just Prosecution network, which brings together a new generation of leaders committed to advancing justice reform.

To be sure, prosecutorial reform alone will not end mass incarceration. Our laws have vested prosecutors with vast discretion to bring high (or low) charges and to trigger mandatory minimum or other extreme penalties. Real change cannot happen at the scale it needs to unless our criminal laws and sentencing laws are changed. That, too, is possible at both the state and federal level.

It requires passing legislation that flips the current metrics for evaluating prosecutors, who are too often rewarded for, and judged by indicting and prosecuting more cases, winning more convictions, and garnering longer sentences. Instead, Congress can provide bonus dollars to prosecutors’ offices that reduce crime and incarceration in their districts. This will encourage prosecutors to use prison only when necessary, and to shift practices to a more enlightened and equitable model.

Members of Congress have already introduced a bill that would achieve some of these goals. The Reverse Mass Incarceration Act removes the incentives in the 1994 Crime Bill that drove punitive cultures, and instead would pay states to decrease the number of people behind bars. The legislation authorizes $20 billion in funds over 10 years to states that reduce their prison populations by 7 percent every three years and keep crime stable or have it decrease.

States can similarly take charge of incentivizing local prosecutors to change their practices. Some, like Illinois, have established programs with local jurisdictions, where counties receive funding by reducing the number of people they send back to prison. In Illinois, the program saved $47 million over four years and diverted more than 2,000 nonviolent individuals while cutting recidivism by as much as 20 percent. Local lawmakers can also pass legislation that would charge counties for their share of the prison population—a tactic being employed in Ohio.

Other solutions for lawmakers include passing legislation that would change sentencing laws to eliminate prison outright for lower-level offenses. Policymakers could also slash prison sentences for other crimes. A growing volume of research shows that there is little or no relationship between length of incarceration and recidivism. Recalibrating prison sentences to meet goals of public safety and rehabilitation would net a 40 percent reduction in incarceration, as explained in a 2016 Brennan Center report.

States can also end cash bail, and instead make detention decisions based in-part on an objective analysis of whether a defendant poses a flight risk or a threat to public safety. That assessment, which best practices dictate should be gender and race neutral, can be influenced by an individual’s family ties, circumstances around the offense allegedly committed, and more.

Reform is on its way, as Philadelphia, Texas, Florida, Chicago, and elsewhere show. But there is much more work to be done at both the federal and state level to encourage other prosecutors to follow suit. It’s time to embrace practices that respond to today’s problems, and promote effective, efficient, and just policies.

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