Reassessing Prosecutorial Power Through the Lens of Mass Incarceration

24 Pages Posted: 9 Mar 2017 Last revised: 26 Apr 2018

Date Written: March 9, 2017


Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff's highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration – and How to Achieve Real Reform." The book concludes that police, legislators, and judges are not to blame for Mass Incarceration. Instead, "the most powerful actors in the entire criminal justice system" (prosecutors) have used their "almost unfettered, unreviewable power to determine who gets sent to prison and for how long."

Locked In’s data-driven thesis aligns neatly with the academic consensus. If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product – Mass Incarceration. The only problem is that it probably isn’t right. While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data. With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators. This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration. It also says something profound about prosecutorial power.

Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction – to dictate sanctions – fold under scrutiny. When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.

Keywords: Mass Incarceration, Prosecutors, Criminal Justice

Suggested Citation

Bellin, Jeffrey, Reassessing Prosecutorial Power Through the Lens of Mass Incarceration (March 9, 2017). Michigan Law Review, Vol. 116, p. 835, 2018, Available at SSRN: or

Jeffrey Bellin (Contact Author)

William & Mary Law School ( email )

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

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