Consolidating Local Criminal Justice: Should Prosecutors Control the Jails?

Wake Forest Law Review, Vol. 51, 2016

William & Mary Law School Research Paper No. 09-348

28 Pages Posted: 25 Oct 2016

Date Written: October 24, 2016

Abstract

Most observers agree that prosecutors hold too much power in the American criminal justice system. Expansive criminal codes offer prosecutors wide discretion to charge defendants with a huge number of offenses. And stiff authorized punishments provide prosecutors with leverage to pressure defendants to plea guilty. As a result, prosecutors hold most of the plea bargaining cards. Massive prosecutorial power has resulted in mass incarceration.

I do not disagree with the conventional wisdom that prosecutors hold too much power. However, absent drastic legislative and judicial change, it will be nearly impossible to substantially reduce prosecutors’ power and discretion. As such, this essay offers the counter-intuitive proposal that we should give prosecutors more, not less, power and responsibility.

This essay argues that states should change their nearly uniform policy of having sheriffs run local jails. Instead, we should place local prosecutors in charge of their local jails. While sheriffs would remain responsible for safety and discipline, prosecutors should be charged with all of the logistical responsibility for checking inmates in and out of the facilities and with handling the overall budgets.

Putting prosecutors in charge of the jails would take a bite out of the “correctional free lunch” in which prosecutors impose sentences but do not have to internalize the financial costs of their decisions. Put simply, prosecutors would have to pay for and live with their misdemeanor charging and sentencing decisions. Consolidating local criminal justice might also have spillover effects that encourage prosecutors to reduce the sentences they seek in felony cases.

Keywords: Mass Imprisonment, Jails, Prisons, Prosecutors, Plea Bargaining, Correctional Free Lunch

Suggested Citation

Gershowitz, Adam M., Consolidating Local Criminal Justice: Should Prosecutors Control the Jails? (October 24, 2016). William & Mary Law School Research Paper No. 09-348. Available at SSRN: https://ssrn.com/abstract=2858462

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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