Slate has published an interview with Fordham Law professor John Pfaff (Twitter) that is both very good and very bad. I suspect they contacted him because of his post at PrawfsBlawg (guys, it’s been, like, 10 years. Can we change that name now? Seriously please?) in which he thinks about prosecutors.
Thinking about prosecutors is a very good thing – we here at APD do it often – and it seems that John Pfaff recognizes that thinking about prosecutors is an important thing and he seems to do it often and do it well:
The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.
The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.
The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.
In fact Pfaff has been at this for a while. Here’s a paper he wrote in 2009 and here’s an accompanying piece in, of all things, Slate in 2009. Here’s another one from 2014. His point is that while a lot of us have been focused on the war on drugs as the main driving force behind America’s incarceration problem, it is but one factor. He urges us to look at prosecutors more skeptically and question their unchecked power and their exercise of their discretion in determining who to charge and with what crimes.
This is, of course, not a novel idea: it stands to reason that if prosecutors are overzealous and heavy-handed and throw around their power, they will charge greater numbers of people with more serious crimes and use the threat of incarceration to get potentially innocent people to plead to lesser offenses and thus boost prison populations, despite actual crime dropping.
Whether there is a direct correlation here is beyond my mathematical abilities, but intellectually one cannot escape coming to the conclusion that this theory holds water. Anecdotal, experiential evidence supports this theory. Every criminal defense lawyer has encountered a prosecutor or three who insists that – despite damning evidence to the contrary – a dismissal shall not be forthcoming and a defendant must agree to accept some responsibility whether real or imaginary. Every criminal defense lawyer has encountered a prosecutor who refuses to forgo a prosecution despite it being the morally correct path to take. Statutory rape cases are the prime example of opportunity for abuse. Additionally, in CT alone – a very small state – there are 1532 offenses one could commit that would land one in jail.
“A pound of flesh” isn’t a phrase thrown about in criminal justice circles because the participants are avid meat eaters.
The Slate interview with Pfaff is a good thing, however, because it highlights the problem with a lack of oversight of prosecutors to the lay individual1.
So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.
But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.
There is, as far as I’m aware, no oversight of prosecutors anywhere. Grievances are rarely filed, if ever. There are no boards who review the performance of prosecutors and internal investigations are pro-forma if they are ever performed.2 Even those who are found by courts to have engaged in unethical behavior are rarely punished and not only continue to keep their jobs, but also get promoted and become judges.
The greater the awareness of this issue and the greater public interest we can generate, the better it is for everyone.
But let’s not call prosecutorial oversight “provocative” shall we? What’s so provocative about suggesting that prosecutors are sending more people to jail and thus our prison populations are increasing across the country?3
This is why this piece is very bad. It sets up Pfaff’s theory as some sort of ground-breaking, dangerous, novel idea. It reveals another pet subject of ours here at APD and that is the complete and abject genuflection that the media engages in at the altar of law enforcement.
Most media representations of the justice system are from an solidly “law and order” position: all crime is bad, all criminals are bad, whatever police say is true and every person deserves the punishment they get.
When that is the underlying theme of every story written about the justice system, it isn’t hard to see why an idea that questions the righteousness of those on the “law and order” side of the justice equation would be treated as “provocative”.
I have never understood why the media isn’t more skeptical. They are clearly so when it comes to other forms of governmental power and abuse: the military, state secrets, who’s making how much and which contract was given to which relative. So why do the police and prosecutors get a “can-do-no-wrong” pass? Why are press releases from the police blotter routinely printed verbatim? Why isn’t it equally normal to wonder if the accused in a particular case was given a just sentence or whether the prosecutor really needed to purse a more serious charge when a lesser one would have sufficed?