Are Prosecutors To Blame For The Growth In Incarceration?

The prosecutor has more control over life, liberty, and reputation than any other person in America.

– Robert Jackson, United States Attorney General, Justice of the United States Supreme Court, and Chief United States Prosecutor at the Nuremberg Trials.

The public prosecutor was a uniquely America invention.  Although we borrowed much of our law from England, criminal prosecutions there were generally conducted by the victims, in tandem with tort suits against hte perpetrator of the harm.  A public prosecutor prevents blackmail by the victim, who in early England could, and often did, threaten criminal prosecution unless the defendant paid a settlement in the tort suit.  A public prosecutor prevents the criminal courts from being used as conduits for unreasonable, vengeance-seeking victims (or their survivors) who are incapable of neutrally assessing the defendant’s criminal responsibility.  It also means that poor victims will have their rights protected even if they could not afford the costs of prosecution.  And it ensures that public money is only spent on crimes that the public feels are important, and not on private disputes.

John Pfaff thinks that prosecutors, because of their power, are the primary driver of mass incarceration in America. He argues that prosecutors are responsible for rising prison populations during a period of falling crime.

What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

Pfaff advocates reform by electing new district attorneys.

What makes it very hard is that the person we really need to target now—whose behavior we need to regulate—is the district attorney, and the district attorney is a very politically independent figure. He’s directly elected, and he’s directly elected at the county level. […] So you have to figure out how to go county by county and either elect DAs who have less punitive attitudes, or you can try to sort of change the incentives DAs face at the state level. But it’s very tricky.

Pfaff’s work was a response to a National Research Council report. The report was conceived by James Q. Wilson, an extremely influential thinker in criminology. It lists the underlying causes of incarceration as “crime, politics, and social change.” It found that “[t]he policies and practices that gave rise to unprecedented high rates of incarceration were the result of a variety of converging historical, social, economic, and political forces.” The system was made punitive by “powerful institutional, cultural, political, economic, and racial forces.”  “[T]he United States responded to escalating crime rates by enacting highly punitive policies and laws and turning away from rehabilitation and reintegration.”

Pfaff had a strong reaction to this report. He began writing about what he believed were flaws in the report. His writing started to pile up. And it eventually led to his book, Locked In.

Pfaff is making a diagnosis of exclusion. He isn’t sure why prison populations have risen, but he noticed that more arrests are resulting in prosecution. So he identifies the rise in prosecution as the cause of mass incarceration. This is not proof by a long shot; it’s more like an educated guess. When more research is needed, academics shouldn’t publish books acting as if the question is settled.

The second problem that I have with Pfaff’s thesis is that he doesn’t know why prosecutors are filing more. Personal experience leads me to believe that prosecutors offices are chronically short-staffed, and that the filing decisions of the past were driven by the very real limitations of staffing. In the old days, prosecutors had to decline cases because they did not have the resources to prosecute them. As time has gone on, prosecutors have obtained more staff and resources, and can prosecute more. And they should, after all, one of our guiding principles is “equal justice under law.” Imagine how a victim feels when a prosecutor tells them that they do not have time to prosecute their victimizer. As we move away from a history of unequal enforcement to a period of equal enforcement against all criminals, Pfaff should not complain that prosecutor’s filing decisions are causing mass incarceration. After all, prosecutors are simply living up to our ethical ideals, and doing more of the work that we are entrusted with.