Can Prosecutors Help To End Mass Incarceration?

28 Pages Posted: 6 Feb 2021 Last revised: 23 Apr 2021

See all articles by Rachel E. Barkow

Rachel E. Barkow

New York University School of Law

Date Written: August 1, 2020

Abstract

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.” While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration. In this review, I explain why. Bazelon is right that prosecutors have enormous discretion to decide how criminal law will be applied, but the deference they have received in the past corresponded to their decisions to use that discretion to seek severe punishments. In this review, I document the resistance to prosecutors seeking to decarcerate. The forces pushing back come from outside and inside the office. We have seen opposition efforts from police departments, judges, other prosecutors, elected officials, the media, and line prosecutors within these offices. For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors. They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants. This review provides a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this can serve as a checklist to evaluate prosecutors who claim to be progressive. If they are not putting their full support behind these institutional changes, one should question just how progressive they are. But even if prosecutors pursue all these changes, we should recognize that they cannot dismantle mass incarceration their own. Real change is going to require shifts in police departments, the judiciary, the legislature, and governor’s offices. Most fundamentally, transforming punishment in America will require the public to change its understanding about what policies are most effective for crime control. Prosecutors have long lobbied for the get-tough approach as the way to address crime, so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

Keywords: Prosecutors, Sentencing, Punishment, Mass Incarceration, Criminal Law, Politics of Crime, Charging Discretion, Plea Bargaining, Second Looks

JEL Classification: K14

Suggested Citation

Barkow, Rachel E., Can Prosecutors Help To End Mass Incarceration? (August 1, 2020). Michigan Law Review, Forthcoming, NYU School of Law, Public Law Research Paper No. 21-03, Available at SSRN: https://ssrn.com/abstract=3758006 or http://dx.doi.org/10.2139/ssrn.3758006

Rachel E. Barkow (Contact Author)

New York University School of Law ( email )

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United States
212-992-8829 (Phone)

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