A World Without Prosecutors
California Law Review Online, Forthcoming
6 Pages Posted: 13 Dec 2022
Date Written: November 2022
This Essay is part of a Symposium of responses to Bennett Capers’ provocative article, Against Prosecutors. Capers proposes to (largely) abolish public prosecutors, a reform he suggests would slash the number of people incarcerated, particularly for drug crimes, and return the power of prosecution to the people.
Using data from my new book, Mass Incarceration Nation, this Essay suggests that Capers' proposal is unlikely to have the promised benefits because it targets only one of the many drivers of American criminal law. Prosecutors matter. But they are one piece of a large and complex puzzle. And most importantly, prosecutors are primarily reactive, responding to the laws enacted by legislators and the arrests made by police. Capers’ proposal makes perfect sense if prosecutors are truly the one thing responsible for mass incarceration and the primary driver of drug enforcement. If, however, politicians and police are also (or even primarily) pushing the “tough on crime” agenda, jettisoning public prosecutors becomes a murky policy prescription and may prove counterproductive.
Keywords: prosecutors, mass incarceration
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